Justice fight in ’80s set example
Reagan, Democrats resolved clash with ‘advice and consent’
WASHINGTON — The last great clash between the president and the Senate over a vacant Supreme Court seat ended with a private meeting at the White House between Ronald Reagan and Sen. Joe Biden, then the chairman of the Senate Judiciary Committee.
Earlier that year, the Senate had voted down Judge Robert Bork, Reagan’s first choice to fill the seat of Justice Lewis Powell, the court’s swing vote in the 1980s. The president, heading into his final year in office, wanted to know who could be confirmed in a Senate controlled by Democrats. One name on his list was Anthony Kennedy, a judge from Sacramento, Calif., on the 9th U.S. Circuit Court of Appeals.
“Based on what I know, he’s a mainstream conservative,” Biden said. “He would probably pass.”
“So that means you’re for him?” the president said.
As Vice President Biden recounts the story, he tried to step back a bit, but the two had an informal understanding. A good judge with moderately conservative views could win Democratic votes, and Kennedy fit the profile.
A few days later, Reagan announced he was nominating the judge from Sacramento, and in February of 1988, the Senate confirmed Kennedy 97-0. His was the last Supreme Court nomi- nation to win Senate confirmation in a presidential election year — and is perhaps the best example of “advice and consent” in a time of divided government.
“That’s the way the system is supposed to work,” said Washington attorney Mark Gitenstein, a former counsel to Biden. “There was consultation and a consensus on how to move forward.”
The Constitution says the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … Judges of the Supreme Court.” But, compared to the encounter between Reagan and Biden, a different scene is likely to play out Tuesday when President Barack Obama meets with the current Judiciary Committee chairman, GOP Sen. Chuck Grassley of Iowa.
It’s not certain the president will ask Grassley about specific nominees he is considering. However, it is all but certain the Republican chairman will refuse to consider any of them.
Grassley will be joined by Senate Majority Leader Mitch McConnell of Kentucky, who set the tone for a bitter conflict over constitutional prerogatives with an immediate vow, soon after Justice Antonin Scalia’s death this month, that the choice of his successor should be left to the next president.
In a statement released Thursday by McConnell’s office, he and Grassley suggested any discussion over potential nominees would be brief.
“We look forward to reiterating to him directly that the American people will be heard and the next Supreme Court justice will be determined once the elections are complete,” they wrote.
In response, the White House said that Obama is committed to fulfilling his constitutional duty to nominate someone to fill the vacancy and that he is determined to consult in advance with senators.
Senior Republican Sen. Orrin Hatch of Utah said it matters that this is an election year.
This “is a different situation,” Hatch said last week. When the Republican senators go to see Obama, “I think they’re going to tell him that we’re not going to have a vote,” he said. Even if the president shared a list of names, “I don’t think that’ll make a difference.”