Case Study 14.2 — The Garland-Gorsuch-Barrett Sequence (2016-2020)

The Sequence in One Paragraph

Between February 2016 and October 2020, the Supreme Court underwent a transformation driven by three nominations, three deaths or vacancies, and a series of decisions by Senate Republicans, Senate Democrats, the Obama administration, and the Trump administration. The result was three Supreme Court appointments going to Donald Trump and zero going to Barack Obama in his final year, and the Court's ideological composition shifted from a 5-4 conservative majority with Justice Anthony Kennedy as the median vote to a 6-3 conservative majority following Justice Ruth Bader Ginsburg's death and Justice Amy Coney Barrett's confirmation. This case study walks through what happened, what each side said at each step, and what the sequence has meant for the institution of the Senate and the Court.

The Garland Nomination (February-November 2016)

On February 13, 2016, Justice Antonin Scalia died unexpectedly while on a hunting trip in Texas. Scalia had been the intellectual leader of the Court's conservative wing for thirty years. His seat was the first Supreme Court vacancy of the Obama presidency since Justice Sotomayor's confirmation in 2009 and Justice Kagan's confirmation in 2010.

Within hours of the announcement of Scalia's death — on the same day, before any nominee had been named — Senate Majority Leader Mitch McConnell issued a statement. He said: "The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new President."

This was, in McConnell's framing, not a refusal to consider a particular nominee. It was a categorical position: no Obama nominee, regardless of identity, would receive Senate consideration. The 2016 election would determine who filled the seat.

President Obama nominated Merrick Garland — chief judge of the U.S. Court of Appeals for the D.C. Circuit, widely respected as a moderate, formerly confirmed to the D.C. Circuit by a 76-23 vote in 1997 with substantial Republican support — on March 16, 2016. Several Republican senators had previously suggested Garland would be confirmable in different circumstances. Senator Orrin Hatch had specifically named him as a "consensus nominee" Obama could choose if he wanted bipartisan confirmation.

The Senate held no hearings on Garland. The Judiciary Committee did not vote. The full Senate did not vote. The nomination expired without action when the 114th Congress ended in January 2017.

The vacancy lasted 293 days from Scalia's death to Donald Trump's January 2017 nomination of Neil Gorsuch — the longest such gap on the modern Court.

What Each Side Argued

McConnell's defense, in 2016 and afterward, was framed around what came to be called the "Biden rule" — a 1992 floor speech by then-Senator Joseph Biden in which Biden had suggested that, if a Supreme Court vacancy arose late in a presidential election year, the Senate might consider waiting for the next president. McConnell cited this speech repeatedly as showing that his 2016 position had Democratic precedent.

Critics noted important differences. Biden's 1992 remarks were hypothetical (no vacancy had occurred); were made in the heat of the Thomas hearings the prior year; and were not carried out — there had been no vacancy. The "rule" had not been an operative Senate practice. Nevertheless, McConnell's invocation of it gave his position a rhetorical anchor.

Senate Democrats argued that the Senate's constitutional duty was to advise and consent — that is, to consider the nomination on its merits. Refusing to hold hearings or schedule a vote was, in their view, a constitutional violation. Senator Chuck Schumer and others argued the Senate had never before refused to act on a Supreme Court nominee for an entire calendar year. The historical record on this is mixed: there had been earlier instances of Senate inaction or pocket vetoes on nominees, but nothing quite parallel to the Garland blockade in scale or duration.

Republican defense rested on the formal constitutional point that the Senate's "advice and consent" power could be exercised by inaction as much as by action. The Constitution does not require the Senate to schedule votes. Senate rules are within the Senate's discretion. The political consequences of inaction — an extended vacancy, public criticism — are themselves political accountability mechanisms.

Both sides have a point. The Republicans' formal constitutional argument was correct: the Senate is not required to act. The Democrats' institutional argument was also serious: if the Senate routinely refuses to act, the appointment process breaks down, and the framers' design — in which the President proposes and the Senate disposes — is replaced by a system in which a Senate of the opposing party can simply hold seats vacant. Both observations are accurate.

The Gorsuch Confirmation (January-April 2017)

Donald Trump's election in November 2016 changed the political calculus. On January 31, 2017, Trump nominated Neil Gorsuch — a federal appeals judge on the Tenth Circuit, a former clerk to Justice Anthony Kennedy and a thoughtful conservative legal scholar.

Senate Democrats, many still aggrieved by the Garland blockade, mounted a filibuster. Under existing Senate rules, ending debate on a Supreme Court nominee required 60 votes. Democrats had enough votes to sustain the filibuster.

Senate Republicans, lacking 60 votes, deployed the "nuclear option" — a procedural maneuver that lowered the cloture threshold for Supreme Court nominations from 60 to a simple majority. The vote to deploy the nuclear option was 52-48.

The nuclear option had a precedent. In 2013, Senate Democrats under Majority Leader Harry Reid had deployed the nuclear option to lower the cloture threshold for executive-branch and lower-court judicial nominations (specifically excluding Supreme Court nominations). Reid's decision was driven by what Democrats viewed as historically unprecedented Republican obstruction of Obama's nominees. Republicans denounced the 2013 move at the time and warned that Democrats would regret it.

The 2017 extension of the nuclear option to Supreme Court nominations was, in Republican framing, a logical consequence of the 2013 Democratic precedent: if filibusters of judicial nominees were inappropriate (as 2013 implied), they were inappropriate for the Supreme Court as well. In Democratic framing, the 2017 decision was a further escalation that would not have been necessary if Republicans had not blockaded Garland.

Both framings are accurate. The 2013 nuclear option did establish a precedent that the cloture threshold could be lowered by majority vote. The 2017 deployment did extend that precedent to Supreme Court nominations, where 2013 had specifically excluded them. Both parties contributed to the escalation.

Gorsuch was confirmed 54-45.

The Kavanaugh Confirmation (July-October 2018)

In June 2018, Justice Anthony Kennedy retired. Trump nominated Brett Kavanaugh — a federal appeals judge on the D.C. Circuit, a former Kennedy clerk, and a longtime conservative legal figure.

Kavanaugh's confirmation hearing in September 2018 was disrupted when Christine Blasey Ford alleged that Kavanaugh had sexually assaulted her in high school. Both Ford and Kavanaugh testified before the Judiciary Committee. The FBI conducted a supplemental background investigation.

Kavanaugh was confirmed 50-48 on October 6, 2018. Senator Joe Manchin (D-WV) was the only Democrat to vote for confirmation; Senator Lisa Murkowski (R-AK) was the only Republican to vote against.

The Kavanaugh confirmation deepened partisan polarization around Court appointments. It also raised institutional questions about the Senate's procedures for handling allegations against nominees — questions that the Thomas hearings of 1991 had raised and that had not been resolved in the intervening twenty-seven years.

The Barrett Confirmation (September-October 2020)

On September 18, 2020, Justice Ruth Bader Ginsburg died. The 2020 election was 46 days away. Early voting had already begun in some states.

President Trump nominated Amy Coney Barrett — a federal appeals judge on the Seventh Circuit, a former Notre Dame law professor, and a former Scalia clerk — on September 26.

The Senate held confirmation hearings October 12-15, voted out of committee October 22, and confirmed Barrett 52-48 on October 26 — eight days before Election Day. Senator Murkowski voted against; Senator Susan Collins voted against (citing process concerns rather than Barrett's qualifications); all other Republicans voted yes; all Democrats voted no.

The 2016/2020 Asymmetry

The accelerated 2020 confirmation was the most contested element of the entire sequence. McConnell's 2016 position — that election-year vacancies should be filled by the next president — had not provided for the situation in which the Senate majority and the President were of the same party. McConnell's 2020 explanation was that the 2016 and 2020 situations were genuinely different on this dimension.

The historical record on same-party Senate-president confirmations in election years is, as a matter of fact, supportive of McConnell's distinction. There have been multiple instances in American history in which the same party held the Senate and presidency in an election year and the Senate confirmed a Supreme Court nominee in that election year. There have been fewer instances of opposing-party situations. McConnell's 2020 historical claim was not invented; it had supporting precedent.

But the 2016 announcement — at the time it was made — had not articulated the same-party/opposing-party distinction. McConnell's February 2016 statement said "The American people should have a voice in the selection of their next Supreme Court Justice." It did not say "unless the Senate majority and the President are of the same party." The distinction emerged afterward.

Critics — including some Republicans, like Senator Collins — argued that the 2016 rule should have been applied as it was articulated. If it was a general principle that election-year vacancies should be left to the next president, the principle should have applied in 2020 as well. The retroactive distinction — same-party versus opposing-party — was, in critics' view, an after-the-fact rationalization.

Defenders argued that 2016 and 2020 were genuinely different and that the historical record supported the distinction even if McConnell had not articulated it precisely in 2016.

The textbook's honest assessment is that both episodes involved instrumental constitutional reasoning. McConnell took the position in each case that produced the outcome favorable to his party's substantive policy preferences. Senate Democrats made parallel choices: their 2013 nuclear option had seemed institutionally costly to Republicans at the time but produced the result Democrats favored, and their 2020 objections to the Barrett rush were rhetorically inconsistent with their own 2013 willingness to break Senate norms when it served their substantive preferences. Both parties have made themselves vulnerable to charges of opportunism.

What the Sequence Means

Three observations the textbook stands behind, leaving normative judgment to the reader:

First, the institutional norms of confirmation politics have eroded. The 2016 Garland decision and the 2020 Barrett decision were both within the Senate's formal constitutional powers. Both were, by historical standards, substantial departures from the institutional norms that had governed Senate-presidential cooperation on Court appointments.

Second, both parties have contributed to the escalation across decades. The Bork hearings (1987), the Thomas-Hill hearings (1991), the blue-slip changes during the second Bush administration, the 2013 nuclear option (Democratic), the 2016 Garland blockade (Republican), the 2017 nuclear option for Supreme Court nominees (Republican), the Kavanaugh hearings (2018), the 2020 Barrett confirmation (Republican), and the 2022 Jackson hearings have all been moments in the escalation. No single party is responsible. The institutional structure of mutual norm-restraint has been progressively dismantled.

Third, the cumulative result is a Court whose composition reflects both regular electoral processes and a series of contested institutional choices. Donald Trump appointed three Supreme Court justices in a single term — a frequency unmatched since the Eisenhower era. Those three appointments produced the 6-3 Court that has issued Dobbs, Bruen, West Virginia v. EPA, SFFA, Loper Bright, and Trump v. United States. Whether those decisions are good law on their own merits is a substantive question. Whether the Court's composition reflects ordinary democratic processes or a series of contested institutional moves is a separate question. Reasonable people across the spectrum disagree about both.

What Comes Next

The sequence is not over. Future vacancies will be filled by future presidents, with future Senates voting on confirmation. The norms that governed confirmations from 1789 to 1987 are, plainly, gone. Whether new norms will develop, whether the cycle of escalation will continue, and what the cumulative effect on the Court's institutional legitimacy will be — these are questions the next decade of American politics will answer.

Discussions of court reform, which we covered in Section 14.10 of the chapter and will return to in Chapter 38, gain their force from the political fact that the current Court was assembled through a process that significant numbers of Americans on both sides regard as institutionally compromised. Whether reform is the right response, and what kind of reform, depends on judgments that the textbook does not make for the reader. Understanding the sequence — what happened, what each side said at each step, and what choices led to the current moment — is the foundation for whatever judgment you reach.