*This post originally appeared on Crain's Chicago Business.
by Geoffrey R. Stone, Edward H. Levi Distinguished Service Professor at the University of Chicago
In recent days, several leading Republicans, including Sens. Ted Cruz and Richard Burr, have argued that if Hillary Clinton is elected president, Senate Republicans should refuse to confirm any of her nominees to the Supreme Court. The very suggestion of such a strategy threatens to undermine core principles of our constitutional democracy.
The driving motivation for those taking this position has nothing to do with principle. It is about partisan politics, plain and simple. Senate Republicans who refused even to hold hearings on President Obama's nomination of Chief Judge Merrick Garland pretended that the rationale for their stance was the “principle” that a president should not be allowed to appoint a justice in the final year of his term. Although that claim was plainly disingenuous and has no foundation in American history, the advocates of the “no Clinton nominees” position now go even further and insist that the Senate should not confirm any nomination by a president they do not like.
This is entirely about partisan politics. They do not want to see a change in the ideological makeup of the Supreme Court. The problem, though, is that throughout our nation's history the Senate has consistently confirmed Supreme Court nominees even when they are made by a president of the opposite party and even when their confirmation would shift the ideological direction of the court.
Indeed, of the 16 justices who have been confirmed in the last half-century, nine of them substantially altered the ideological balance on the Supreme Court. This includes, among others, Warren Burger for Earl Warren, John Paul Stevens for William Douglas, David Souter for William Brennan and Clarence Thomas for Thurgood Marshall. Interestingly, in eight of these nine confirmations, the new justice was nominated by a Republican president and moved the court significantly to the right. Nonetheless, they were confirmed, often by a Democratically controlled Senate.