The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Today's New York Times featured a widely circulated op-ed by historian Timothy Huebner on the history of presidential election year vacancies on the Supreme Court. There's lots of interesting information in the piece, but I also think it overstates the extent to which the U.S. Senate has acted quickly to fill Supreme Court vacancies created within a year of a presidential election.
Here's is Professor Huebner's central claim:
On 13 occasions, a vacancy on the nation's highest court has occurred—through death, retirement or resignation—during a presidential election year. This does not include the most recent and frequently cited example, Justice Anthony Kennedy, who was nominated by Ronald Reagan in November 1987 to fill a vacancy and won confirmation from a Democratic-controlled Senate in February 1988.
In 11 of these instances, the Senate took action on the president's nomination. . . .
in cases when vacancies have arisen during election years, the weight of history is clearly on the side of the president naming a successor and the Senate acting on that nomination.
By my count, there have been 15 occasions in which a vacancy arose in an election year, defined as a vacancy that occurred within a year prior to the election. (This is what I understand is the standard Huebner used.) Note that this excludes three instances in which vacancies arose after the election, even though some of those were filled in the same calendar year as the election. I understand Huebner would also exclude the vacancy created by Oliver Ellsworth in 1800 and filled by John Marshall in January 1801. The Supreme Court Historical Society says Ellsworth retired in September, however, so that's the date I used.
In only seven of these cases were the nominees confirmed prior to the election. That's fewer than half (or half if we exclude Marshall). In two others, a president's election year nominees were confirmed after the election, but in both of these cases (as with Marshall) the nomination was not made until after the election either (and in one, the nominee was the sixth sent up for that seat). The remaining five vacancies were not filled until later, usually by subsequent presidents.
Here are the 15 cases I identified of vacancies arising in an election year (as opposed to nominations or confirmations made in an election year). I list the year, the departing justice, the year the vacancy was filled, and the name of the justice filling the seat. In some instances I've also added potentially relevant notes. [If I've made any errors, I hope readers will let me know.]
- 1800—Oliver Ellsworth, filled in 1801 by John Marshall, who was nominated and confirmed after the election.
- 1804—Alfred Moore, filled in 1804 by William Johnson.
- 1828—Robert Trimble, filled in 1829 with John McLean, who was the second nominee for the seat (and nominated by a subsequent president).
- December 1843—Smith Thompson, filled in February 1845 by Samuel Nelson, who was the sixth nominee for the seat, nominated and confirmed after the election.
- 1844—Henry Baldwin, filled in 1846 by Robert Cooper Grier, who was the fifth nominee for the seat (and nominated by a subsequent president).
- 1852—John McKinley, filled in 1853 by John Archibald Campbell, who was the fourth nominee for the seat (and nominated by a subsequent president).
- 1860—Peter Vivian Daniel, filled in 1862 by Samuel Freeman Miller, who was the second nominee for the seat (and nominated by a subsequent president).
- 1864—Roger Taney, filled in 1864 by Salmon Chase (nominated and confirmed in December, after the election).
- 1888—Morrison Waite, filled in 1888 by Melville Fuller.
- 1892—Joseph Bradley, filled in 1892 by George Shiras Jr.
- 1916—Joseph Rucker Lamar, filled in 1916 by Louis Brandeis.
- 1916—Charles Evans Hughes, filled in 1916 by John Hessin Clarke.
- 1932—Oliver Wendell Holmes, filled in 1932 by Benjamin Cardozo.
- November 1939—Pierce Butler, filled in 1940 by Frank Murphy.
- 1956—Sherman Minton, filled in 1957 by William Brennan (though seat initially filled by recess appointment in 1956).
Here are some additional historical facts that may be relevant. First, the vacancies in 1932 and 1956 were both filled by nominees of the same party as the Senate majority but the opposite party of the president. It's a neat idea (like my deescalation proposal), but it has rarely occurred. I also would not read too much into President Eisenhower's actions in 1956. Eisenhower knew that nominating a Democrat would reduce Senate opposition to his action (and he was right, as the subsequent confirmation of Brennan to the seat showed), but he also sought the political benefits of placing a Roman Catholic on the court.
I omitted Earl Warren's announcement of his plan to retire in 1968 from the list because, although he announced his retirement in an election year, there was no actual vacancy. In any event, as readers likely know, President Johnson nominated associate justice Abe Fortas to be chief justice and nominated Homer Thornberry to fill Fortas's associate justice seat. Because Fortas was filibustered, Thornberry's nomination was never considered, and the next president (Richard Nixon) nominated Warren's replacement. The pending election certainly had some effect on the Fortas filibuster, and likely encouraged some Republican opposition particularly given the profile of the court as a political issue at the time, but most of the opposition was driven by other concerns. Southern Democrats objected to Fortas's support of desegregation, and some other senators were concerned about ethical allegations against Fortas.
As for whether any of this is relevant, that depends. Focusing on election year vacancies and nominations is, in one sense, somewhat arbitrary. Why are election years more important than other years? Why is a vacancy created nine months before the election more important than one that occurs 13 months before? These are fair questions.
For good or ill, the nomination process has often treated presidential election years differently from other years. For more than three decades, it has been traditional for the Senate to slow-walk appellate nominees made in an election year. Those appellate nominees to be confirmed in election years are typically those who were nominated earlier. On the other hand, there are good reasons to think about appellate nominations in different terms that Supreme Court nominations. The problem, however, is that if we are looking for controlling precedents, there are far fewer Supreme Court nominations to analyze, and even fewer that match the current situation in all relevant respects.
Another historical fact that is worth noting given the current debate is that the Senate has often rejected Supreme Court nominees without voting them down on the floor. Quite a few have been rejected by a simple refusal to act. This is how quite a few of the failed election year nominations were defeated. As a recent Congressional Research Service report notes:
From the appointment of the first Justices in 1789 through its consideration of nominee Elena Kagan in 2010, the Senate has confirmed 124 Supreme Court nominations out of 160 received. Of the 36 nominations which were not confirmed, 11 were rejected outright in roll-call votes by the Senate, while nearly all of the rest, in the face of substantial committee or Senate opposition to the nominee or the President, were withdrawn by the President, or were postponed, tabled, or never voted on by the Senate. Six of the unconfirmed nominations, however, involved individuals who subsequently were re-nominated and confirmed.
As Adam White notes, the Senate's ability to reject nominees without having to affirmatively reject them down is no accident. The founders expressly ensured that the Senate could block a confirmation by simply refusing to act. For what it's worth, I believe this is an awful practice, and I have always supported prompt up-or-down votes for all judicial nominees. Be that as it may, the Senate has not consistently adopted my preferred approach.
My bottom line on all this is that there is no consistent, controlling precedent that instructs the Senate to promptly consider an election year nomination for an election year vacancy. Those who claim otherwise—on either side—are seeing what they want to see in the historical record.
For more on the history of election year nominations, see this post.
[Note: As this post was first published, I mistakenly claimed that William Brennan was the first Catholic on the Supreme Court. That was wrong. Roger Taney was the first Catholic on the Court. I have corrected the error above.]