Supreme Court

On Election Year Supreme Court Vacancies (Redux)

What I wrote in 2016 still applies today.


In 2016, after the tragic passing of Justice Antonin Scalia, I blogged a fair amount on the history of election year supreme court vacancies and the ever-worsening judicial confirmation process. In these two posts, I surveyed the history of election year vacancies and confirmations:

I also wrote a short article solicited by the George Mason Law Review arguing against the position (popular at the time in some circles), that the Senate had a constitutional obligation to hold hearings or provide a vote on President Obama's nomination of Merrick Garland.

As some of the arguments and history recounted in that piece seem relevant today, here are a few excerpts (footnotes omitted).

The argument that the Senate has a constitutional obligation to act on a Supreme Court nomination is anything but "clear." This claim finds no support in the relevant constitutional text, constitutional structure, or the history of judicial nominations. While there are strong policy and prudential arguments that the Senate should promptly consider any and all nominations to legislatively authorized seats on the federal bench, and on the Supreme Court in particular, the argument that the Senate has some sort of constitutional obligation to take specific actions in response to a judicial nomination is erroneous. Interestingly enough, the argument that the Senate has an obligation to consider judicial nominations is not new. In the face of Senate intransigence on some of his judicial nominees, President George W. Bush declared that: "The Senate has a Constitutional obligation to vote up or down on a President's judicial nominees." The argument was wrong then, and it is wrong now. . . .

. . .

The last time a Supreme Court vacancy arose in the calendar year of a Presidential election and was filled prior to an election was in 1932, when the Senate confirmed Benjamin Cardozo to fill the seat vacated by Justice Oliver Wendell Holmes. Facing a Senate that was split down the middle, and an impending election, President Herbert Hoover, a Republican, decided to nominate a prominent Democrat to fill the seat.

In June 1992, when considering the possibility of an election-year vacancy to the Supreme Court, then-Senator Joseph Biden spoke on the Senate floor of "the tradition against acting on Supreme court nominations in a Presidential year." In extended remarks, the then-Chairman of the Senate Judiciary Committee reviewed the history of Supreme Court nomination fights, explained why he believed Senate Democrats would be justified in delaying action on any prospective Supreme Court nominee should a vacancy occur prior to the election, and discussed how the Senate and President should work together on future Supreme Court nominations in future years. Senator Biden argued that should there be a Supreme Court vacancy that year, the President "should consider following the practice of a majority of his predecessors, and not—and not—name a nominee until after the November election is completed." He added further that were such a nomination made, and the President were to go "the way of Presidents Fillmore and Johnson" and "press[] an election-year nomination, the Senate Judiciary Committee should seriously consider not scheduling confirmation hearings on the nomination until after the campaign season is over." Senator Biden further noted that "no Justice has ever been confirmed in September or October of an election year—the sort of timing which has become standard in the modern confirmation process."

Then-Senator Biden no doubt overstated the existence of a meaningful tradition against confirming Supreme Court justices in election years. There is no such meaningful tradition, but nor is there a meaningful tradition of filling Supreme Court vacancies that arise in election years either. In some cases, Presidents have refrained from making such appointments until after the election. In other cases, when nominations were made, the Senate refused to act prior to voters casting their ballots. Where the Senate responded quickly to pre-election nominations, it has usually been when the Senate majority and the President were of the same political party and the overall balance of the Court was not at stake.

All told, 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. Only seven of these vacancies were filled by a nominee confirmed by the Senate prior to the election.80 In two others, a president's election year nominees were confirmed after the election, but in both of these cases 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 vacancies were not filled until later, usually by subsequent presidents. Justice Anthony Kennedy was confirmed in a presidential election year, 1988, although the vacancy arose and his nomination was first made in 1987, after two prior nominations had failed. In sum, there are too few instances of election-year vacancies upon which to build any claim of historical practice, in either direction, let alone the sort of unbroken tradition that could ripen into a constitutional norm obligating the Senate to act. . . .

. . .

There are strong political and prudential arguments for prompt consideration of all nominees, but not particularly strong constitutional ones.

Ending the ever-worsening conflict over judicial nominations will not be achieved by playing an imaginary constitutional trump. Rather, it will occur when the competing sides of this conflict are willing to recognize the harm this conflict does to the judiciary, and the importance of a more regular and rational confirmation process. It will also likely occur only when each side is willing to engage in compromise. In short, the answer to the judicial confirmation mess lies in politics, and not in overstated appeals to constitutional principle.


UPDATE: On the somewhat related question of whether there was a norm of requiring super-majority support for judicial confirmations, here's a post in which I address the "mythical history of nomination filibusters"

NEXT: The Dead Can Vote (at least on the Massachusetts Supreme Court) - UPDATED

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  1. Much sound and fury…signifying not a hell of a lot.

    POTUS Trump will nominate a qualified jurist, and the Senate will confirm her. That is all there is to it.

    1. Knock yourselves out. Enjoy it while you can.

      Then, prepare for your betters to use their lawful authority — in fastidious compliance with relevant rules, ample precedent, and the preferences of most Americans — for the public good.

      1. After Trump nominates two more to the supreme court in his second term, leaving only two lonely little liberals left, it will be 7-2 rulings for a generation.

        1. No, even assuming Trump wins, and gets a couple more nominations, the odds are good that one of them will be one of the current conservative Justices, likely Thomas or Alito. After you get past Breyer, (82) they’re the oldest justices.

          And I doubt they’d hold together 7-2 anyway.

      2. District Court judge #161 was confirmed today.

        Five more next week.

      3. Your comments are as lame as those that the Daily Kos diarists and commenters were making after Obama’s victory in 2008 after which Democrats controlled the House, Senate, and Executive.

        There were predictions that Republicans were done and would never again have any power. Obama was going to play twelve-dimensional chess and dominate over the Republicans. And how did that work out? Obama’s twelve-dimensional gave us Trump and a Republican controlled Senate which will lead to Trump having tipped the court with three appointments (assuming, of course, that Justice Breyer doesn’t have a fatal heart attack before mid December – in which case it will be four appointments – there have been Justices that were confirmed within a day of nomination so there’s a historical precedent for moving quickly).

        Even the effects of adding PR and DC as states in a naked Democratic power grab can be counteracted when “Clingers” again control the Senate, House, and Executive. The US simply pays big $ (that, unfortunately, could have been spent elsewhere if it Democrats hadn’t pulled such stunt) to buy a twenty small, but habitual, islands from other countries. Congress makes all of these states. All the federal land (i.e., all the land) on these islands is then sold to private trusts — which just happen to be RNC trusts. The RNC opens a day resort on each (unfortunately the prices are so high, the islands so inconvenient, and the amenities so minimal no visitors ever show up). Each resort is staffed by a few on-site caretakers (who have minimal duties — most of the actual needed work is done by contractors) who receive a salary, room, and board and just happen to be loyal Republicans. The census shows that each new state has at least three residents – and, of course, each gets one Representative and two Senators (for a total of 20 die-hard Representatives and 40 die-hard Senators). There are a few homes in each new state that are owned (of course) by the RNC and rented out to Congressional candidates in exchange for “consulting” for just long enough to establish the (very lax) residency requirements imposed on Congressional candidates in each state. The RNC will downsize/outsource care-taking should they not like the results of elections in the states that these resorts are on.

        1. There is of course no need for 20 islands. A single island could be split into 20 (or 150) states. However, by buying multiple islands, it doesn’t set the precedent of buying one island and splitting it into multiple states (some people might find the latter rather like dirty politics). It also makes the price of appropriate islands climb quickly to make it a bit more difficult for the Democrats if, by some bizarre fluke, they got control again of the House, Senate, and Executive again.

          Actually, I just realized also, there’s no reason for the Republicans not do this but create about 150 new states — then as little as 300 people or so could amend the Constitution at will! One needs to think big!

          (The Founders made a big error when they didn’t require approval of at least 3/4 of the states to add a new state and dilute every existing state’s power. They didn’t allow amending the Constitution in a way that would reduce the suffrage of a state in the Senate without that state’s approval but missed this back door.)

          1. No constitution can cover all the angles, it’s literally impossible. There are a lot of ways to subvert things that aren’t explicitly contrary to the text, not that the text is holding firm, either.

  2. According to Ted Cruz on his podcast, there have been 27 vacancies on the Supreme Court during presidential election years; and all 27 times, the president has nominated someone to fill the seat. 17 times, the President and the Senate majority were in the same party, and in all 17 cases the Senate confirmed the president’s nominee. The other 10 times, the President was not in the same party as the Senate majority, and only two of those 10 nominees were confirmed.

    1. Yeah, I was actually astounded just how easy it was to confirm that what happened with Garland was far from unprecedented.

      In fact, in general, if a nomination to the Supreme court fails, it’s actually much more common that the nominee never gets a vote, than that they lose the vote.

    2. Cruz is counting vacancies after election day as well as more than a year before election day.

      While there is a clear pattern favoring nominees when the majority party in the Senate matches the president’s, all but three of those cases occurred before February. Of the three occurring after January, one was rejected (Fortas/Thornberry) and one was not nominated until after election day (Lincoln reelected, replacing Taney).

      1. Well, with only 37 rejected nominees, once you exclude 3/4 of the years the nominations could be made in, you get a pretty small sample size.

  3. Professor Adler,

    That was well stated.

    Perhaps next you can review “court packing” both in the US and in other countries and the virtues and problems with it?

  4. There’s no real need to hurry or to wait. The people trying to sell either choice are trying to make very much out of very little.

    The majority in the Senate will decide.

  5. Until 2016 the Senate majority party has never, as a matter of “principle”, refused to even consider a Supreme Court nominee. Let alone one whom the Judiciary Committee chairman had specifically cited as someone acceptable to him.

    1. Wikipedia: Unsuccessful nominations to the Supreme Court of the United States

      “There have been 37 unsuccessful nominations to the Supreme Court of the United States. Of these, 11 nominees were rejected in Senate roll-call votes, 11 were withdrawn by the president, and 15 lapsed at the end of a session of Congress. Six of these unsuccessful nominees were subsequently nominated and confirmed to other seats on the Court.[2] Additionally, although confirmed, seven nominees either declined office or (in one instance) died before assuming office.

      Election-year Supreme Court nominations

      “As the table shows, Edward Bradford and Reuben Walworth are strict matches for Garland’s scenario: they were nominated in election years, and the Senate refused to take any action on their nominations. In terms of Senate inaction, John Spencer’s situation was identical as well, the only difference being that Tyler later formally withdrew his nomination.

      Bradford’s case was identical to Garland’s in every way. Millard Fillmore was a Whig, but the Democrats outnumbered the Whigs in the Senate. Fillmore submitted a single nominee, on whom the Senate refused to act because Senate Democrats hoped Fillmore’s replacement would be a Democrat. Fillmore, like Obama, saw the writing on the wall and did not waste his time submitting a replacement nominee. Fillmore’s successor indeed turned out to be a Democrat, Franklin Pierce, who filled the vacancy with his own nominee, John A. Campbell. It is hard to imagine a more exact parallel to the Garland situation. The oft-repeated claim that the Senate’s inaction on Garland was unprecedented is therefore already shown to be false, so we could end our discussion here.”

    2. Seriously, I already pointed this out to you in a different comment thread, and Adler pointed out above that you’re wrong about this. There ought to be an end to this denial at some point.

      1. “Seriously, I already pointed this out to you in a different comment thread”

        He added ” as a matter of “principle” to somehow make Garland different than those other 15 lapsed nominees.

        Sad really.

      2. No one has refuted my point.

        Never has the Senate leader declared that, as a matter of principle, no Supreme Court appointments can be made in an election year . . . until McConnell did it in 2016 (and reneged on it in 2020).

        1. “He added ” as a matter of “principle” to somehow make Garland different than those other 15 lapsed nominees.”

          Silly lawyer point you made. You can’t even prove it. Not unless you review everything said in each of the15 lapsed nominations.

          Of course majority leader did not even exist until WW I so in most of the lapsed nominations, there was no Senator called “majority leader” so its doubly silly.

          “In 1925, the Republicans (who were in the majority at the time) also adopted this language when Charles Curtis became the first (official) Majority Leader,[2] although his immediate predecessor Henry Cabot Lodge is considered the first (unofficial) Senate Majority Leader.”

          Stop being a tool.

  6. In sum, there are too few instances of election-year vacancies upon which to build any claim of historical practice, in either direction, let alone the sort of unbroken tradition that could ripen into a constitutional norm obligating the Senate to act. […] There are strong political and prudential arguments for prompt consideration of all nominees, but not particularly strong constitutional ones.

    I agree, but I am interested in whether how Garland was treated, and the arguments used to justify that treatment, has influenced Adler’s thinking on whether a norm was established that ought to bind McConnell this time around.

    1. Once does not make a “norm”.

      1. Glad you agree. What McConnell did was unprecedented.

        1. Man, you’re stubborn on this. No, it wasn’t, except in the sense that you can, notoriously, always distinguish cases if you get detailed enough.

          Supreme court nominees have often been denied votes, and usually by Senates of the opposing party.

        2. By your standard everything is “unprecedented”, because there are some details that can be differentiated.

          But the norm is much easier to define: the Senate majority leader will do whatever he can get his caucus to support and whatever he thinks will be most advantageous politically. That’s the norm whether the majority leader is Harry Reid, Mitch McConnell or Chuck Schumer.

  7. “The argument that the Senate has a constitutional obligation to act on a Supreme Court nomination is anything but “clear.” This claim finds no support in the relevant constitutional text, constitutional structure, or the history of judicial nominations.”

    Similarly, I see nothing in the constitutional text that requires an actual vote of the Senate to express their advice and consent. Couldn’t we interpret Senate inaction as tacit consent?

    1. No, because doing that eviscerates the actual constitutional requirement for consent. Congress doesn’t do ANYTHING “tacitly”.

      The reason not acting on a nomination kills it is just because positive action is required to confirm, and non-action is as much a lack of positive action as a down vote would be.

      1. I see nothing in the US Constitution that explicitly says positive action is required. The relevant section says “he shall nominate, and
        by and with the Advice and Consent of the Senate, shall appoint”

        That does not specify that advice and consent means a vote or other positive action.

        Back to the blog post we are commenting on. “The argument that the Senate has a constitutional obligation to act on a Supreme Court nomination is anything but “clear.” This claim finds no support in the relevant constitutional text, constitutional structure, or the history of judicial nominations.” If the text does not support the obligation to act, neither does the text support the need to vote in order to consent. History and tradition may contradict that, but the text is the text.

        1. If the president doesn’t sign a bill into law, does it become a law due to his inaction?

          Same principle applies here. Lack of action is non-consent.

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