How common is a Supreme Court vacancy during a Presidential election?

The short answer: it isn’t.

Immediately after the news broke that Supreme Court Justice Antonin Scalia had died, Republican leadership indicated it did not welcome a Barack Obama nominee to replace him. Rather, they want to wait a year.

Justice Scalia was an American hero. We owe it to him, & the Nation, for the Senate to ensure that the next President names his replacement.

— Ted Cruz (@tedcruz) February 13, 2016

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 (emphasis added).”
Sen. Mitch McConnell (R-KY), Senate Majority Leader

Let’s ignore, for the moment, the fact that “the American people” elected President Obama. Twice.

Republicans insist that there is “ample precedent” for this “standard practice.”

But is there?

The Senate has left one Supreme Court justice vacancy hanging in November of a presidential election year.

It was in the run-up to the Civil War (1842).

Since 1900, there have been five nominations to fill a Supreme Court justice vacancy during an election year. All were confirmed; only one occurred with a party split between the White House (Republican) and the Senate (Democrat).

Since 1900, there has been Chief Justice nomination made during a presidential election year; it was withdrawn. And there has been one recess appointment. That justice was nominated and confirmed after the Senate resumed session the following year.

1. 1912, President William Taft (R)

   On Feb 19, 1912, Taft nominated Mahlon Pitney to succeed John Marshall Harlan, who had died in October. Harlan was a noted civil rights advocate, opposing Plessy v. Ferguson, which upheld racial segregation
   
   .On March 13, 1912, the Senate confirmed (50-26) the nomination. In contrast with Harlan, Pitney was an economic conservative and hostile to organized labor. In Coppage v. Kansas, “Pitney struck down a Kansas statute that prohibited an employer from using force or coercion to prevent employees from joining a union.”
   
   In the 62nd Congress, the Senate was controlled by the Republican party (48-43). Taft served as president for one term (1909–13) and was subsequently appointed to the Supreme Court (1921–30).

2. 1916, President President Woodrow Wilson (D)

   On January 28, 1916, Wilson nominated Louis Brandeis to succeed Joseph Lamar, who had died in January. The Senate confirmed Brandeis (47-22) on June 1, 1916. “His commitments to justice, education, and Judaism were commemorated several years later in the founding of Brandeis University.” A Georgian, Lamar tended to side with the majority
   
   .On Jul 14, 1916, Wilson nominated John Clarke, a progressive to succeed Charles E. Hughes. The Senate confirmed Clarke on a voice vote July 24, 1916. Hughes was a Teddy Roosevelt Republican who was an “advocate of regulation and authored decisions that weakened the legal foundations of laissez-faire capitalism.”
   
   In the 64th Congress, the Senate was controlled by the Democratic party (56-40). Wilson served as president for two terms (1913-1921). He did not run for a third term.

3. 1932, President Herbert Hoover (R)

   On February 15, 1932, Hoover nominated Benjamin Cardozo to succeed Oliver Wendell Holmes, who had retired after 29 years. The Senate confirmed Cardozo on a voice vote February 24, 1932.
   
   In the 72nd Congress, the Senate was controlled by the Republican party (48-46-1). Hoover served as president for one term (1929-1933). He was defeated by Franklin Roosevelt.

4. 1938, President Franklin Roosevelt (D)

   On January 15, 1938, Roosevelt nominated Stanley Reed to replace George Sutherland. The Senate confirmed Murphy on a voice vote January 25, 1938.
   
   In the 75th Congress, the Senate was controlled by the Democratic party (75-16-4). Roosevelt served as president for four terms (1933-1945).

5. 1956, President Dwight D. Eisenhower (R)

   On October 15, 1956, Sherman Minton retired; the Senate was adjourned. Rather than leave the seat vacant, Eisenhower made William J. Brennan a justice by making a a recess appointment. Subsequently, Eisenhower nominated Brennan on January 14, 1957. The Senate confirmed him on a voice vote March 19, 1957.
   
   In the 84th Congress, the Senate was split (47-47-2). Eisenhower served as president for two terms (1953-1961).

6. 1968, President Lyndon B. Johnson (D)

   On June 26, 1968, Johnson nominated Abe Fortas to succeed Chief Justice Earl Warren. Johnson withdrew the nomination in light of ethical questions. Also, “Critics claimed” he was too close to the President, violating the separation of powers. Chief Justice Earl Warren remained on the bench; there was no vacancy.
   
   In the 90th Congress, the Senate was controlled by the Democratic party (64-35). Johnson served as president for one elected term (1963-1969). He did not run for a second term.

7. 1988, President Ronald Reagan (R)

   On November 30, 1987, Reagan nominated Anthony Kennedy to succeed Louis Powell. The Senate confirmed Kennedy (97-0) on February 3, 1988.
   
   In the 100th Congress, the Senate was controlled by the Democratic party (55-45). Reagan served as president for two terms (1981-1988).

Nine refusals to act

The Supreme Court was established in 1789. The Senate has considered 160 presidential nominations for Court justices, including nominations for chief justice.

Of the total nominations, 124 were confirmed but seven declined to serve.

The Senate refused to act on a presidential nomination only nine (9) times. For the math inclined, that’s 6% of the nominations.

However, of those nine instances, three of the nominees were subsequently confirmed and one was rejected.

That leaves five (5) absolute refusals to consider. That’s 3% of the nominations. And none of them are in the 20th century.

All data are from the U.S. Senate.

Five candidates for the Supreme Court for whom the U.S. Senate took no action

1. June 17, 1844
   Reuben Walworth, nominated by President John Tyler
2. February 7, 1845
   John Read, nominated by President John Tyler
3. August 16, 1852 (election year)
   Edward Bradford, nominated by President Millard Fillmore
   Filled April 1853 by John Campbell, appointed by President Franklin Pierce
4. February 14, 1853
   William Micou, nominated by President Millard Fillmore
5. April 16, 1866
   Henry Stanbery, nominated by President Andrew Johnson (seat abolished, leaving no vacancy)

Notice the era? Mid-1800s, pre-Civil War.

Three candidates for the Supreme Court for whom the U.S. Senate initially took no action but confirmed on second nomination

1. Stanley Matthews, nominated by President Rutherford Hayes
   No action on January 26, 1881
   Re-nominated by President James Garfield on Mar 14, 1881 and confirmed May 12, 1881
2. Pierce Butler, nominated by President Warren Harding
   No action on November 21, 1922 nomination; this is after the election
   Re-nominated December 5, 1922, and confirmed December 21, 1922
3. John Harlan, nominated by President Dwight Eisenhower (R)
   No action on November 9, 1954 nomination; recess appointment
   Re-nominated January 10, 1955, and confirmed March 16, 1955

One candidate was eventually rejected

1. William Hornblower, nominated by President Grover Cleveland
   No action on September 19, 1893 nomination
   Re-nominated December 5, 1893, and rejected January 15, 1894

President Grover Cleveland subsequently nominated Wheeler Peckham, who was also rejected by the Senate. The President succeeded in filling the open seat with Edward White on February 19, 1894.

 

Nominations during a presidential election year, prior to 1900

Prior to 1900, there were seven (7) nominations to the Supreme Court during a presidential election year, when you remove President John Tyler (1844) from the equation (you’ll see why, in a moment). All were but one were confirmed.

Also, it wasn’t until 1868 that Senate rules changed, referring all nominations to the Senate Judiciary Committee.

1. March 3, 1796, Oliver Ellsworth; confirmed March 4, 1796 / President George Washington (1789-1797)
2. December 18, 1800, John Jay; confirmed December 19, 1800 / President John Adams (1797-1801)
3. March 22, 1804, William Johnson; confirmed March 24, 1804 / President Thomas Jefferson (1801-1809)
4. August 16, 1852, Edward Bradford; no action / nominated by President Millard Fillmore
5. December 15, 1880, William Woods; confirmed December 21, 1880 / President Rutherford Hayes (1877-1881)
6. April 30, 1888, Melville Fuller; confirmed July 20, 1888 / President Grover Cleveland (1885-1889)
7. July 19, 1892, George Shiras, Jr.; confirmed July 26, 1892 / President Benjamin Harrison (1889-1893)

There are three (3) end-of-year nominations to consider; these are not unlike Reagan’s nomination of Kennedy just prior to the New Hampshire primary and Iowa caucuses.

1. December 4, 1799, Alfred Moore; confirmed December 10, 1799 / President John Adams (1797-1801)
2. December 6, 1887, Lucius Lamar; confirmed January 16, 1888 / President Grover Cleveland (1885-1889)
3. December 3, 1895, Rufus Peckham; confirmed December 9, 1895 / President Grover Cleveland (1893-1897)

About President John Tyler

He had an abysmal record. Tyler’s four unsuccessful Supreme Court justice nominees (two failures for each opening) are the most failures by a president.

First up, Tyler’s attempt to replace Justice Smith Thompson, appointed by President James Monroe and confirmed December 9, 1823. Thompson died died (75) on December 18, 1843.

1. Jan 9, 1844; nominated John Spencer to replace Thompson
   Rejected (21-26) Jan 31, 1844
2. Mar 13, 1844; nominated Reuben Walworth to replace Thompson
   Withdrawn (27-2o) June 17, 1844
3. June 17, 1844; nominated John Spencer to replace Thompson
   Withdrawn June 17, 1844
4. June 17, 1844; nominated Reuben Walworth to replace Thompson
   Withdrawn June 17, 1844
5. December 4, 1844; nominated Reuben Walworth to replace Thompson
   Withdrawn February 4, 1845
6. February 4, 1845; nominated Samuel Nelson to replace Thompson
   Confirmed on voice vote February 4, 1845

So there was a Supreme Court vacancy in November 1844, but it wasn’t because there was a pending/hanging nomination.

Next, Tyler’s unsuccessful attempt to replace Justice Henry Baldwin, appointed by President Andrew Jackson and confirmed (41-2) on January 6, 1830. Baldwin died (64) on April 21, 1844. 

1. June 5, 1844; nominated Edward King to replace Baldwin
   Postponed (29-18) June 15, 1844
2. December 4, 1844; nominated Edward King to replace Baldwin
   Withdrawn February 7, 1845
3. February 7, 1845; nominated John Read to replace Baldwin
   No action

So Baldwin’s slot was open when Tyler stepped down on March 4, 1845.

President Polk didn’t have an easy time of it, either.

1. December 23, 1845; nominated George Woodward to replace Baldwin
   Rejected (20-29) January 22, 1846
2. August 3, 1846; nominated Robert Grier to replace Baldwin
   Confirmed (voice vote) August 4, 1845

From the Senate’s history (emphasis added):

One of the most dramatic confirmation struggles occurred in the administration of John Tyler, who had fallen out with the Senate’s Whig majority shortly after he succeeded to the presidency in 1841. On March 3, 1843, the final day of a contentious congressional session, the Senate considered Tyler’s nomination of Caleb Cushing to be secretary of the treasury. Cushing had deeply antagonized administration foes in the Senate with his strident defense of the president. For the second time in history, the Senate formally rejected a cabinet nominee. Signing last-minute legislation in a room adjoining the Senate chamber, Tyler quickly resubmitted his nomination of Cushing, contradicting his own earlier views against renominations. Minutes later, and by a greater margin, the Senate again rejected Cushing. Not deterred, Tyler again sent in Cushing’s name. And again, with only two affirmative votes, the Senate dismissed the nominee, demonstrating the power of institutional loyalty over partisan allegiance.

Following this pattern, the Senate subsequently twice rejected Tyler’s nominee as minister to France and turned down appointees for the posts of minister to Brazil, secretary of the treasury, secretary of the navy, secretary of war, and four Supreme Court nominees. Hopes among Whig senators that their former colleague Henry Clay would be the next president accounted for the Senate’s refusal to move on any Supreme Court nominations until after the 1844 election.

About Henry Stanbery

President Andrew Johnson nominated Stanbery to the Supreme Court without success. However, the Senate confirmed Stanbery as Attorney General. When the House began impeachment proceeding against Johnson, Stanbery resigned to head Johnson’s legal defense team.

* Supreme Court Justice Seat 7 was vacant and was abolished on July 23, 1866. Thus there was no vacancy in November 1866.
Update, 2:30 pm Sunday // The pre-1900 list contained years that were not presidential years and, thus, did not contain Tyler’s mess.
Update, 2:50 pm Sunday // Added excerpt from Senate history about Tyler; what a mess!
Update, 5:00 pm Sunday // Discovered that in the run-up to the Civil War, there was one November presidential election with a nominee left hanging by the Senate.