Given the “facts” that have been bandied about in the media since Justice Antonin Scalia’s death concerning presidential election year nominations and confirmations to the Supreme Court, I asked Anthony Gruzdis, our crack research assistant for the Center for Constitutional Studies, to do an exhaustive study of the subject, and here, in summary, are the most relevant facts.
It turns out that most election year resignations and deaths were in the pre-modern (pre-1900) era—many in the era before today’s two major parties were established. And the pre-1900 picture is further complicated by several multiple nominations and confirmations of the same person, both before and after the election, so it’s not until the modern era that we get a picture that is more clearly relevant and instructive for the current situation.
Looking at the history of the matter since 1900, then, until last week only four vacancies have occurred during an election year, two in 1916, one in 1932, and one in 1956. (Three more occurred during the previous year, in 1911, 1939, and 1987; the nominees in each case were confirmed, respectively, in February, early January, and early February of the election year that followed.) The first three were filled when the president’s party also controlled the Senate, so that’s not the situation we have now. And when Justice Sherman Minton resigned for health reasons on October 15, 1956, President Eisenhower made a recess appointment that same day of William J. Brennan, Jr., nominating him for the seat on January 14, 1957, for which Brennan was confirmed by voice vote on March 19, 1957. In 1956 the Senate was closely divided with 48 Democrats, 47 Republicans, and 1 Independent. In 1957 it was also closely divided with 49 Democrats and 47 Republicans, although in both cases the Southern Democrats often voted with the Republicans.
The resignation of Chief Justice Earl Warren in June 1968 and President’s Johnson’s nomination of Justice Abe Fortas to succeed Warren has been cited as a parallel for today, but the complex details of that case hardly make it so. In a nutshell, after a heated debate concerning speaking fees Fortas had accepted plus his political activities while on the bench, Fortas asked President Johnson on October 1, 1968 to withdraw his nomination to be chief justice. He resigned from the Court on May 14, 1969, shortly after which President Nixon nominated Warren Burger to be chief justice.
More often the nomination of Justice Anthony Kennedy is cited as a parallel for today, but here too there are important differences. In particular, the seat Kennedy holds became vacant not in an election year but in late June 1987 when Justice Lewis Powell, Jr. announced his retirement. The stormy hearings for Judge Robert Bork followed. After that nomination failed, President Reagan named Judge Douglas Ginsburg, who withdrew his name shortly thereafter. Finally, the president nominated then-Judge Kennedy on November 11, 1987, still not in an election year. Kennedy was confirmed on February 3, 1988. The one parallel to today is that President Reagan faced a Senate that was 55-45 Democratic. It is likely, however, that the president’s popularity, plus the wish to bring to an end the exhausting struggle of the previous seven months, explains the confirmation vote of 97-0.
In sum, in the modern era there is no close parallel to the situation today when the presidential primary elections are already underway, the White House and the Senate are held by different parties, the parties are deeply divided, and the most recent off-year elections reflected that divide fairly clearly. The Constitution gives the president the power to nominate a successor to Justice Scalia. But it also gives the Senate the power to confirm, or not. In the end, this is a political matter.