Contributor, The Volokh Conspiracy

The news of Justice Scalia’s death has prompted substantial speculation about his potential replacement.  Before anyone has even had time to reflect meaningfully on the loss of a legal giant, politicians and pundits are already positioning themselves to support or oppose a nomination that has not been made. Given that fact, I thought it would be useful to lay out a bit of the relevant history of Supreme Court nominations and confirmations in election years. The point of this post is to be descriptive, not prescriptive.

First, in recent decades it has become notoriously difficult to confirm judicial nominees in presidential election years, and this difficulty has increased over time. While some appellate nominees are occasionally confirmed in an election year (particularly in the first half of an election year), during the past few administrations nearly all of those confirmed had been nominated earlier. Appellate nominees that are nominated in an election year are rarely confirmed, and before today there were already signs that Senate Republicans would not confirm any appellate nominations made in 2016.  This is the result of the downward spiral of polarization and obstruction of judicial nominations that we have witnessed for the past thirty years.

Supreme Court nominations are different, to be sure, and they are also more rare. Supreme Court vacancies in presidential elections are also exceedingly rare. Only once since World War II has a Supreme Court justice announced a resignation in an election year, and this has not been an accident.

While vacancies have rarely arisen in presidential election years, there has been one presidential election year confirmation in the modern era, that of Justice Anthony Kennedy in February 1988.  Justice Lewis Powell retired from the Court in June 1987. President Reagan first nominated Robert Bork to fill the vacancy in July 1987, but Bork was defeated in the Senate in October. President Reagan then nominated Douglas Ginsburg to fill the Powell seat, but then-Judge Ginsburg quickly withdrew after it was revealed that he had smoked marijuana as a law professor at Harvard in the 1970s. It is my understanding Judge Ginsburg’s withdrawal was prompted, in part, by a concern that a confirmation fight could prevent the seat from being filled before the 1988 election. President Reagan then nominated Anthony Kennedy on November 30, 1987. Then-judge Kennedy was less controversial than either Bork or Ginsburg, and was confirmed in February 1988.

The Powell seat was vacant for seven months before the Senate confirmed his successor. This was not the longest vacancy in the modern era, however. When Justice Fortas stepped down in May 1969, it would be a full year (well, 363 days to be precise) before his successor was confirmed. One reason it took so long to fill the Fortas seat is because the Senate rejected President Nixon’s first two nominees for the seat — Clement Haynsworth and Harold Carswell — before confirming Harry Blackmun. The Court did its work with only eight justices in the interim. (Also of note, the Court went several months with only seven justices in 1971 after Justices Harlan and Black stepped down that September. Their replacements were confirmed in December.)

Speaking of Abe Fortas, the last time there was a Supreme Court nomination in a presidential election year was 1968, when President Johnson nominated then-associate justice Fortas to succeed Chief Justice Earl Warren and nominated Homer Thornberry to replace Fortas as an associate justice. Fortas was nominated in June 1968, but would not be confirmed as chief. Political opposition, largely from southern Democrats, and concerns about alleged ethical improprieties kept Fortas from becoming the chief justice, as not even a majority of Senators would vote for cloture on his nomination. President Nixon eventually named Warren’s replacement as chief, Warren Burger. It should be noted, however, that Chief Justice Warren continued to serve on the Court until Burger was confirmed, so while there was no election year confirmation, there was no election year vacancy either.

The last time a justice was both nominated and confirmed in an election year was in 1940.  Justice Pierce Butler died in November 1939. President Roosevelt then nominated Frank Murphy to the open seat on January 4, 1940, and Murphy was confirmed only twelve days later (and by a voice vote to boot!).  Despite President Roosevelt’s effort to pack the Court in the 1930s, judicial nominations were not nearly as controversial in that era.  Indeed, seven of Roosevelt’s nine Court nominations were confirmed by voice vote. Of course it helped that Roosevelt’s party controlled the Senate during this time.

Prior to Murphy, several justices were nominated and confirmed in presidential election years, including Justice Cardozo (1932), Louis Brandeis (1916), John Hessin Clarke (1916), and Mahlon Pitney (1912). The confirmation process at the time was nothing like that which we see today. Nominees were often confirmed by voice vote and without meaningful confirmation hearings (which didn’t really begin until 1916). [Update: Interestingly, when President Hoover tapped Cardozo on the eve of an election, he was selecting a jurist of the opposing party, a practice Eisenhower would follow when he recess appointed Brennan to the Court in 1956.]

For what it’s worth, the last time a justice was nominated to the Court in a presidential election year and confirmed by a Senate controlled by the opposing party was 1888, when President Grover Cleveland nominated Justice Melville Fuller to be Chief Justice. Fuller was nominated April 30 and confirmed on July 20 by a vote of 41-20. President Cleveland was a Democrat, and the Senate had a slim 39-37 Republican majority.

CORRECTION: I initially claimed the last time a justice was nominated to the Court in a presidential election year and confirmed by a Senate controlled by the opposing party was 1880, when President Hayes nominated William Burnham Woods. This was an error and I’ve corrected the paragraph above. Justice Woods was nominated and confirmed in December of that year by a Democratic Senate. Hayes was a Republican.

UPDATE: I have seen some folks claim that Justices Powell and Rehnquist were confirmed in a Presidential election year. This is not true, unless by “election year” one means within twelve months of a Presidential election. Both were nominated and confirmed in 1971, but because they were not confirmed until December, they did not begin sitting on the Court until 1972. Several other justices cited as “election year” confirmations also involved individuals who, like Woods, were both nominated and confirmed in December. This was the case with Ward Hunt (1872) and Salmon Chase (1864).

As for the last time the Senate simply refused to act on a nomination made in a Presidential election year, that would be 1968 when the Senate failed to act on the Thornberry nomination. Of course, there was no vacancy for Thornberry to fill as an associate justice once the Senate rejected cloture on Fortas nomination.  Prior to that it was 1852, when President Millard Fillmore nominated Edward Bradford. The Senate took no action, and Bradford was not renominated.

Prior to that, the Senate rejected (or refused to consider) several efforts by President Tyler to fill two vacancies on the Court in 1844. This was due to multiple factors, including the fact that the Senate’s Whig majority hoped Henry Clay, the Whig candidate for President, would be able to fill the seats.  Clay lost the 1844 election, however, and Tyler eventually filled one of the vacancies shortly before leaving office in 1845. The other was filled by his successor, James Polk, in 1846. (Polk filled yet another vacancy in 1845.) [Update: It also may be worth noting that one of the two vacancies Tyler tried to fill in 1844 began in 1843, upon the death of Justice Thompson.]

One other nomination worth mentioning is that of William Brennan to replace Justice Minton. This nomination is potentially significant in several ways. First, Minton announced his intention to retire late in an election year, on September 7, 1956, due to poor health, and left the Court several weeks later. President Eisenhower then placed William Brennan on the Court with a recess appointment, to prevent any vacancy. After the election, in January, President Eisenhower nominated Brennan, who was then confirmed in March by a voice vote. As David Bernstein notes in this post, Eisenhower’s use of a recess appointment prompted the passage of a Senate resolution against such appointments in 1960.

SECOND UPDATE: A reader notes that I overlooked what happened when Justice Daniel died in May 1860, the year of a Presidential election. Interestingly enough, President Buchanan did not make a nomination for this seat prior to the election.  Rather, he waited until February 5, 1861 before nominating Jeremiah Black. This nomination went nowhere, however, as the Senate voted against considering the nomination, and the seat was subsequently filled by President Lincoln, who nominated Samuel Miller for the seat in 1862.

CORRECTION: I wrote that Justice Powell “resigned.” I am informed I should have written that he “retired” instead, as he kept his chambers as have other justices who have retired from the Court. Justice Fortas, however, “resigned” in 1969, due to concerns about his alleged ethical improprieties.