Republicans have relentlessly cited historical precedent to defend their push to confirm Judge Amy Coney Barrett to the Supreme Court just weeks before the election. Although they claim the distinction that matters historically is whether the election-year president serves with a Senate controlled by the same or different party, the pattern lurking in the history is actually something very different.

Until President Barack Obama’s nominee Merrick Garland didn’t receive a vote in 2016, the only presidents to experience rejections in election years were exceptionally weak or lacked legitimacy. All had held the presidency for five years or less (three had moved into the White House upon the death of a president). And all but the first — John Quincy Adams, who tried to make a Supreme Court appointment after losing in 1828 — had lost their party’s nomination for the presidency that year. This pattern suggests that Republicans are discarding what had been the most relevant precedent — and it’s highly unusual given this history that President Trump should have his nominee confirmed.

One factor that leads to misrepresenting or obscuring these precedents is that most of this history comes from the 19th and early 20th centuries. There have been only four Supreme Court vacancies, nominations or votes in presidential election years since World War II. And the case of John Tyler in 1844 illustrates just how much has changed since election-year Supreme Court nominations were common.

Tyler had the opportunity to fill two seats on the high court in 1844. His problem was that, as one recent biography title alludes, he was a “President Without A Party.” The Whigs had placed Tyler, a former Democrat, on their ticket with William Henry Harrison in 1840, aiming to pull votes away from the Democrats despite Tyler’s disagreement with his new party about most matters of policy. No Whigs imagined that the virile Harrison, a former general, would die just one month into his term and that the often sickly Tyler would rise to the presidency — in part because no president had died in office. Nonetheless, within a year of Harrison’s passing, Tyler’s opposition to core Whig policy goals such as reinstituting a national bank ostracized him from most of the party.

Despite this estrangement, “His Accidency,” as Tyler’s foes called him, pulled from a Cabinet full of tried-and-true Whigs for his first Supreme Court nominee, John C. Spencer. We don’t know much about what happened next in the Whig-controlled Senate, because public hearings on nominations did not begin until 1917, and the Senate routinely did not record debate about nominations in the 19th century. But some Whig newspapers decried Spencer for faithfully serving in Tyler’s Cabinet, and it was Whigs who doomed Spencer’s nomination, with 22 of 27 Whig senators sealing a 26-to-21 rejection.

For Tyler, Spencer was just the beginning of the least successful nomination record in presidential history. He tried eight more times before his term ended, securing only one new justice. Although he stubbornly hurt his cause by renominating several of the same men, Tyler’s record also stemmed from the Whigs’ decision to nominate Henry Clay, not Tyler, for the presidency. Whig senators hoped to hold the vacancies open for Clay to fill.

The Tyler case illustrates how different 19th-century politics were from those of today. This was an era in which the president was not necessarily the de facto party leader. With Clay’s support, the Whigs’ Senate majority snubbed a president who reached office under their banner but who had only recently come to their party and then betrayed their long-touted fiscal policy goals.

Eight years later, the Whigs had another vice president who ascended after the death of a president before not winning the party’s presidential nomination, Millard Fillmore. However, this time Democrats controlled the Senate. When a spot opened on the Supreme Court in July 1852, Fillmore attempted to appease Southern Democrats with a fellow Southerner, albeit a Whig.

However, the Whigs’ division over slavery left Democrats sensing victory that fall and, as the New York Times reported, they intended “to reserve this vacancy to be supplied by” a Democratic president “provided he be elected.” This was this first indisputable time an opposition party sank a nomination before the election in a presidential election year.

In the next such instance, James Buchanan had a vacancy to fill on the high court in May 1860 but did not formally nominate anyone until he was a lame duck and had lost his Democratic Senate majority because of secessions on the eve of Abraham Lincoln’s first inauguration in 1861.

Vacancy
Vacancy Date
Pres
Pres Party
Div/Unified
Nominee
Nominee Date
Outcome Date
Confirmed
Pres Elx Win
Blair
10/25/1795
Washington
F
U
Chase
1/26/1796
1/27/1796
Y
F
Jay
6/29/1795
Washington
F
U
Cushing
1/26/1796
1/27/1796
Y#
F
Jay
6/29/1795
Washington
F
U
Ellsworth
3/3/1796
3/4/1796
Y
F
Ellsworth
9/30/1800
J Adams
F
U
Jay
12/18/1800
12/19/1800
Y#
D
Ellsworth
Same
J Adams
F
U
Marshall
1/20/1801
1/27/1801
Y
D
Moore
1/26/1804
Jefferson
DR
U
Johnson
3/22/1804
3/24/1804
Y
D
Trimble
8/25/1828
JQ Adams
W
Div
Crittenden
12/17/1828
2/2/1829
N
D
Duvall
1/14/1835
Jackson
D
U
Barbour
12/28/1835
3/15/1836
Y
D
Marshall
7/6/1835
Jackson
D
U
Taney
12/28/1835
3/15/1836
Y
D
Barbour
2/25/1841
Van Buren
D
U
Daniel
2/26/1841
3/2/1841
Y
W
Thompson
12/18/1843
Tyler
W?
?
Spencer (1)
1/8/1844
1/31/1844
N
D
Same
Same
Tyler
W?
?
Walworth (1)
3/13/1844
6/17/1844
N
D
Same
Same
Tyler
W?
?
Spencer (2)
6/17/1844
6/17/1844
N
D
Same
Same
Tyler
W?
?
Walworth (2)
6/17/1844
6/17/1844
N
D
Same
Same
Tyler
W?
?
Walworth (3)
12/4/1844
2/4/1845
N
D
Same
Same
Tyler
W?
?
Nelson
2/7/1845
2/14/1845
Y
D
Baldwin
4/21/1844
Tyler
W?
?
King (1)
6/5/1844
6/15/1844
N
D
Same
Same
Tyler
W?
?
King (2)
12/4/1844
2/7/1845
N
D
Same
Same
Tyler
W?
?
Read
2/7/1845
*
N
D
McKinley
7/19/1852
Filmore
W
Div
Bradford
8/16/1852
*
N
D
Same
Same
Filmore
W
Div
Badger
1/3/1853
2/14/1853
N
D
Same
Same
Filmore
W
Div
Micou
2/14/1853
*
N
D
Daniel
5/31/1860
Buchanan
D
Div
Black
2/5/1861
2/21/1861
N
R
Taney
10/12/1864
Lincoln
R
U
Chase
12/6/1864
12/6/1864
Y
R
Nelson
11/28/1872
Grant
R
U
Hunt
12/3/1872
12/11/1872
Y
R
Strong
12/14/1880
Hayes
R
Div
Woods
12/15/1880
12/21/1880
Y
R
Woods
5/14/1887
Cleveland
D
Div
Lamar
12/6/1887
1/16/1888
Y
R
Waite
3/23/1888
Cleveland
D
Div
Fuller
4/30/1888
7/20/1888
Y
R
Bradley
1/22/1892
Harrison
R
U
Shiras
7/19/1892
7/26/1892
Y
D
Lamar
1/23/1893
Harrison
R
U
Jackson
3/2/1893
3/2/1893
Y
D
Harlan
10/14/1911
Taft
R
U
Pitney
2/19/1912
3/13/1912
Y
D
Lamar
1/2/1916
Wilson
D
U
Brandeis
1/28/1916
6/1/1916
Y
D
Hughes
6/10/1916
Wilson
D
U
Clarke
7/14/1916
7/24/1916
McKenna
1/5/1925
Coolidge
R
U
Stone
1/5/1925
2/5/1925
Holmes
1/12/1932
Hoover
R
U
Cardozo
2/15/1932
2/24/1932
Butler
11/16/1939
Roosevelt
D
U
Murphy
1/4/1940
1/16/1940
Minton
9/15/1956
Eisenhower
R
Div
Brennan**
1/14/1957
3/19/1957
Warren
6/13/1968
Johnson
D
U
Fortas***
6/26/1968
10/4/1968
Fortas
Johnson
D
U
Thornberry
6/26/1968
10/4/1968
Powell
6/26/1987
Reagan
R
Div
Kennedy
11/30/1987
2/3/1988
Scalia
2/13/2016
Obama
D
Div
Garland
3/16/2016
*
# Confirmed but declined the seat
* Nomination not taken up
** Recess Appointed 10/15/1956
*** Fortas to chief justice, Thorberry to Fortas’s seat

The next 14 relevant cases highlight why Republicans’ argument — that the key to rejections is whether an election-year president serves with a divided government vs. a unified government — is flawed. All 14 resulted in a new justice being confirmed, whether they arose during divided or unified government.

This era of confirmations began with Lincoln’s decision to delay nominating Salmon Chase until after he had won reelection in 1864. Democratic vice-presidential nominee Kamala D. Harris cited this case in the vice-presidential debate, although Lincoln’s delay had less to do with awaiting a popular mandate and more to do with not wanting to make a pick that would alienate either wing of his party on the eve of an election.

This streak continued until 1968, by which point there clearly was a precedent that presidents filled court vacancies in election years, no matter which party controlled the Senate. Yet this precedent did not stop a coalition of Republicans and conservative Democrats from an unprecedented move — filibustering Lyndon Johnson’s choice of Associate Justice Abe Fortas to replace retiring Chief Justice Earl Warren.

Johnson’s defeat in part reflected his similarities to 19th-century predecessors whose nominees had failed in an election year. He had risen to office upon the death of the president, although he had won election in his own right in 1964. Additionally, and more important, unpopular, Johnson had joined the lame-duck club by bowing out of the 1968 presidential race in March. And like John Tyler, Johnson was largely undone by his own party’s Senate majority — one that was ideologically fractured. A straight party-line vote would have narrowly ended the filibuster and could have led to Fortas being confirmed, but nearly half of Democrats voted against even taking this procedural step or abstained.

Only Anthony M. Kennedy’s unanimous confirmation vote in February 1988 (Kennedy was Ronald Reagan’s third choice for the seat following Robert H. Bork’s rejection the previous year and Douglas Ginsburg’s withdrawal) stood between Fortas’s rejection and the Senate’s refusal to consider Garland in 2016. The rejection of Garland notably did not fit the pattern that plagued Tyler, Fillmore, Buchanan and Johnson. The Republican Senate’s decision to ignore Garland’s nomination in 2016 scuttled the precedent of one-term lame-duck presidents submitting all of the failed nominations.

Republicans first introduced their flawed history to justify their treatment of Garland. But, in reality, Trump today better fits the historical pattern than Obama, a two-term president who twice won a majority of the popular vote. Trump lost the popular vote in 2016 and he trails significantly in most polling, suggesting weakness. If it still took 60 votes to break a Senate filibuster Barrett probably would suffer the same fate as Fortas, restoring the principle that only presidents with serious legitimacy issues have their nominees rejected in election years and making Garland an anomaly. But Republicans changed the rules for Supreme Court nominations in 2017, which only confirms that we are now in unprecedented times.