With a Supreme Court nomination expected later today, one can expect renewed discussion of last year’s nomination of Merrick Garland, much of it repeating the claim that the Senate’s refusal to act on an election-year nominee was unprecedented. To evaluate that claim, this article will review historical precedents for nominations of Supreme Court justices in the periods leading up to Presidential elections.
As background, Antonin Scalia, an associate justice of the U.S. Supreme Court, died on February 13, 2016. On March 16, 2016, Barack Obama nominated Garland to succeed him. Republican leaders in the Senate subsequently refused to act on Garland’s nomination, stating their view that an incumbent President should not make a nomination for a Supreme Court vacancy so close to an upcoming Presidential election; instead, they argued that the next President should make the nomination. Senate Republican leaders hoped that Obama’s successor might be a Republican, and this later turned out to be the case.
All precedents will necessarily be old because an election-year nomination1 has not occurred in a long time: partly due to convention, and partly due to luck. For the former, it has become a convention that justices try to avoid retiring in election years, precisely to avoid political wrangling. For the latter, it is sheer luck that no sitting justice has died in an election year in recent decades. Regardless of election years, deaths of sitting justices have become less common overall: before Scalia in 2016 and William Rehnquist in 2005, the last justice to die on the bench was Robert H. Jackson in 1954.
For our review, we first obtained the complete list of Supreme Court nominations from the Senate website. This list includes not only those who were confirmed or rejected but also those whose nominations were withdrawn, those who declined, and those for whom the Senate refused to take action. The list was placed into a spreadsheet, along with the date of the next Presidential election after each person was nominated, and the differences between these dates were calculated. For example, Garland was nominated on March 16, 2016, and the next Presidential election was scheduled for November 8, 2016, which was 237 days later. All nominees were then sorted by the difference between the two dates.
Of the 161 Supreme Court nominees, only 11 were nominated closer to an upcoming Presidential election than Garland was. It is therefore accurate to say that, by historical standards, this nomination fell unusually close to an upcoming election. In Merrick’s case, this was due to Scalia’s death; 8 of the other 11 nominations were likewise made to replace sitting justices who had died.2
What were the outcomes for the previous 11 nominees? The answer was not promising for Garland because only four were confirmed. (Note that one person, Reuben Walworth, appears twice: his nomination was made, withdrawn after no action from the Senate, then resubmitted, again receiving no action from the Senate. For Edward King, “postponed” was functionally equivalent to rejecting the nomination without hearings or a confirmation vote, albeit with the courtesy of a procedural vote; the Senate voted to postpone consideration indefinitely.)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.
However, Walworth’s case is interesting enough to deserve a full backstory. The Whigs who controlled the Senate despised John Tyler, a President who succeeded into office as a Whig but was ostracized by his party for twice vetoing bills to create a new Bank of the United States, a core Whig plank. Tyler’s Cabinet had resigned in protest, with the sole exception of Daniel Webster, so Tyler was stuck trying to fill Cabinet positions in addition to two Supreme Court vacancies: those of Smith Thompson (who died in December 1843) and Henry Baldwin (who died in April 1844). Even aside from Walworth, Tyler’s other attempts to fill the Supreme Court vacancies likewise met with no Senate action, though Tyler formally withdrew the nominations of Edward King and John Spencer. The Senate’s obstructionism was led by Henry Clay, who had been nominated at the Whig convention in May 1844 to run as the party’s candidate in November; he and his fellow Senate Whigs naturally preferred to keep the Court seats vacant so Clay could fill them, rather than Tyler. This was, once again, the same as the Senate Republican leadership’s motivation in 2016.
After the election, the story had a twist ending: Clay lost3 the 1844 election to James K. Polk, a Democrat who, among other things, opposed creating a new Bank of the United States. With Polk’s inauguration approaching in March 1845, Tyler and the Senate were locked in a game of chicken. In December 1844, Tyler again nominated King (for the second time) and Walworth (for the third time), but he withdrew them when the Senate continued its refusal to act. On February 4, 1845, just 28 days before Polk’s inauguration, the Senate finally confirmed a different Tyler nominee, Samuel Nelson, to fill Thompson’s vacancy from 1843. Three days later, Tyler nominated John Read to fill Baldwin’s seat, but again the Senate refused to take action. The second vacancy therefore remained unfilled until the Polk Administration. George Woodward, Polk’s first nominee to replace Baldwin, was rejected by a Senate vote in December 1845; only in August 1846, 28 months after Baldwin’s death, did the Senate approve Polk’s second nominee for the seat, Robert Grier.
So far, we have discussed nominations made in the lead-up to elections because this is the scenario that exactly matches Garland’s. However, the Tyler-Clay-Polk saga prompts us to wonder about other nominations made by outgoing Presidents, during the lame duck periods when their successors have been elected but not yet inaugurated. There have been 15 such nominations, excluding one (John Jay, not shown) who declined after being nominated but before the Senate could consider his nomination:As one would expect, most of these nominees were not confirmed either. The Senate took no action on three of them, indefinitely postponed consideration of one, and rejected one, while three others were withdrawn by the President. If anything, it is surprising that seven were confirmed, if we count one (William Smith) who declined the position after the confirmation vote occurred. It is especially notable that Smith and John Catron were nominated on Andrew Jackson’s last full day in office. Jackson’s successor, Martin Van Buren, was presumably content with Catron’s nomination, not only because Jackson and Van Buren were both Democrats, but also because Catron had been Van Buren’s campaign chairman in Tennessee.
However, viewed through the lens of party politics, even the confirmations predictably served the interests of the Senate. Peter Daniel was confirmed by the Democratic-controlled Senate six days before Martin Van Buren, a Democrat, was to be succeeded by William Henry Harrison, a Whig. Likewise, Howell Jackson was confirmed by the Republican-controlled Senate 30 days before Benjamin Harrison, a Republican, was to be replaced by Grover Cleveland, a Democrat. John Marshall was confirmed by the Federalist-controlled Senate 43 days before John Adams, a Federalist, was to be succeeded by Thomas Jefferson, a Democratic-Republican. The only instance not entailing a party change involved William Woods, who was confirmed in the lame duck period between two Republicans, Rutherford Hayes and James Garfield; although the Senate was controlled by Democrats, it made no partisan difference which of the two Republicans filled the vacancy, so the Senate had no incentive for delay.
If we switch gears to consider all4 election-year nominees, regardless of how close to Election Day they were nominated, we once again see that party control is quite a reliable indicator. For example, the last time an election-year nominee was confirmed was 1940: Frank Murphy was nominated on January 4, 1940, to replace Pierce Butler, who had died on November 16, 1939. His confirmation was all but assured because he was nominated by Franklin Roosevelt, a Democrat, at a time when 69 of the 96 Senate seats were held by Democrats. In the era of the two present-day parties, there have been ten election-year nominees, including Garland:Before Garland, in eight of the nine cases, the President’s party controlled the Senate. As one would predict from strictly partisan considerations, all of these resulted in confirmation, except for Abe Fortas and Homer Thornberry, whose nominations were withdrawn: Fortas faced Senate opposition due to an ethics scandal, and Thornberry’s nomination to fill Fortas’s seat as associate justice became moot when Fortas was not promoted to chief justice.
Of these ten cases, the sole exception was the earliest, when Melville Fuller was nominated as chief justice in 1888 by Grover Cleveland, a Democrat. However, this is a squeaker of an exception because the Republicans lacked a majority in the Senate, and their plurality was razor-thin: 38 Republicans, 37 Democrats, and one third-party Senator.5 If all Democrats supported their President’s nominee and even a single Republican joined them, Cleveland’s Vice President would have broken the tie, and Fuller would have been confirmed. Barring literally unanimous opposition by the Republicans and the third-party Senator, Fuller’s confirmation was assured, and he was ultimately confirmed by a 41-20 vote.
From this historical survey, it is clear that there are precedents for the Senate’s inaction on the Garland nomination, likewise motivated by the desire to have a subsequent President of a different party fill the vacancy instead. More broadly, there is nothing new about partisan considerations dictating the Senate’s response to election-year Supreme Court nominations; indeed, this has been the rule rather than the exception.
1. There are multiple precedents for the Senate refusing to take action on a Supreme Court nominee during an election year in hopes of having the next President, who has not yet been elected, fill the vacancy instead. Edward Bradford and Reuben Walworth are the most direct parallels to Merrick Garland because their nominations were never withdrawn, but nominees withdrawn following Senate inaction are, in terms of Senate behavior and motivation, precedents as well.
2. There are also multiple precedents for the Senate refusing to take action on a Supreme Court nominee during the lame duck period following an election.
3. Partisanship in the consideration of an election-year Supreme Court nomination is nothing new. On the contrary, party considerations reliably appear to be the decisive factor.
4. There were no recent precedents for Supreme Court nominations in election years—regardless of outcome—because the situation had not arisen in the past few decades.
1. Some people mistakenly assume Anthony Kennedy was an election-year nominee because he was confirmed on February 3, 1988, but he was actually nominated the previous year, on November 30, 1987. Likewise, Lucius Lamar (nominated December 6, 1887; confirmed January 16, 1888) and Philip Barbour and Roger Taney (both nominated December 28, 1835; both confirmed March 15, 1836) were not election-year nominees, though Barbour and Taney cut it much closer than Kennedy or Lamar.
2. The first two exceptions were Alfred Moore, who resigned in January 1804 due to ill health, and Charles Evans Hughes, who resigned in June 1916 to run for President himself. The third was Earl Warren, who announced his resignation in June 1968 so Lyndon Johnson could nominate his successor; Warren sought to avoid the possibility of his successor being named by Warren’s longtime nemesis, Richard Nixon, if Nixon later won the Presidency.
3. This gives rise to an interesting thought experiment: what would the Senate have done if Hillary Clinton had won the 2016 election? Garland was more centrist than the other judges Obama had considered, largely due to Obama’s recognition that the Republican-controlled Senate was unlikely to approve a more liberal justice; Garland was also more centrist than Clinton’s nominee in 2017 probably would have been, if she had been elected. It is easy to imagine a repeat of the Tyler post-election scenario, with the Senate agreeing to confirm Garland after the election. In that case, Garland would have been the modern-day Samuel Nelson.
5. Senator Harrison Riddleberger of Virginia was a member of the Readjuster Party; he caucused with the Republicans. However, the mathematics of a 39-37 split is the same as that of a 38-37 split because a single Republican vote for Fuller would still have allowed the Vice President to break the tie, assuming all Democrats voted for Fuller.
All information on Supreme Court nominations and their outcomes was taken from the Senate’s official list at https://www.senate.gov/pagelayout/reference/nominations/Nominations.shtml. The information on Supreme Court justices was taken from https://www.supremecourt.gov/about/members_text.aspx. Historical background was taken from several sources, most notably William A. DeGregorio’s “The Complete Book of U.S. Presidents” (1991).
The only well-researched article we have seen on precedents for Garland was Jonathan Adler’s piece for the Washington Post; it is not historically exhaustive, but it mentions Bradford and several other pertinent nominees. Adler’s article begins by discussing Anthony Kennedy’s confirmation in February 1988, which we do not include because he was not an election-year nominee, though Adler’s focus on recent history makes Kennedy’s inclusion understandable.
A participation trophy goes to a paper by Robin Bradley Kar and Jason Mazzon, who claimed that Garland’s situation was unprecedented, in a discussion that necessarily ducked any mention of Edward Bradford and briefly hand-waved Reuben Walworth in a footnote. If not for their partisan tone, a reader might conclude that their approach, attempting to use legal reasoning to answer a question of historical fact, was meant as satire; in a similar vein, one could imagine them arguing that no U.S. President has ever been assassinated because this would, inter alia, violate 18 U.S.C. §1114. Their paper was rebutted, from a similarly legal perspective, in a series of posts by Edward Whelan; Whelan is on the opposite side of the political spectrum from Kar and Mazzon.
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