What is the ‘precedent’ for election year vacancies in the Supreme Court?

Politicians and most media are so partisan right now that it can be hard to know what is true, what is false, and what is spin. This is particularly true in regards to the potential nomination of a justice to replace Justice Ginsburg, so I went back and reviewed all the election year vacancies of Supreme Court justices since the Civil War (ie. the last 156 years). Here is the overview of each case (those of particular relevance have red text):

1864 – President Lincoln nominates Salmon Chase

President – Republican (Lincoln)
Senate – Republican Majority
Result – Confirmed

Justice Taney died on October 12, four weeks before the election. President Lincoln waited until after the election, in which he won a 2nd term, and then nominated Salmon Chase on December 6th. Chase was confirmed the same day he was appointed.

Conclusion – A vacancy was created VERY close to election day and the Republican President with a Republican Senate waited until after the election to nominate a new judge.

1872 – Grant nominates Ward Hunt

President – Republican (Grant)
Senate – Republican Majority
Result – Confirmed

Outgoing Justice Nelson retired on Nov 28th after the 1872 election in which Ulysses S. Grant had won a 2nd term. Grant then nominated Ward Hunt on Dec 3rd and Hunt was confirmed on Dec 11th.

Conclusion – An election year vacancy was created after the election and the president who had won a 2nd term filled the vacancy.

1880 – Hayes nominates William Woods

President – Republican (Hayes)
Senate – Democratic Majority
Result – Confirmed

President Hayes had not sought re-election and James Garfield (R) won the presidency. Outgoing Justice Strong retired after the election on Dec 14th and Hayes nominated William Woods on Dec 15th. Woods was confirmed by the Democratic Senate 6 days later on Dec 21st.

Conclusion – An election year vacancy was created after the election and filled by a president who was not serving a 2nd term, but whose party would continue holding the presidency when he was gone.

1881 – Hayes nominates Stanley Matthews

President – Republican (Hayes)
Senate – Democratic Majority
Result – No Action

Two months after the election and one month after William Woods’ nomination and confirmation, a 2nd Supreme Court Justice, Noah Swayne, also retired. President Hayes quickly nominated Stanley Matthews but his nomination was immediately under scrutiny due to conflict of interest concerns. The Judiciary Committee took no action on Matthews while Hayes was still in office.

When James Garfield assumed the presidency he renominated Stanley Matthews but concerns about Matthews continued and it took 2 months for confirmation. Matthews was confirmed by a vote of 24-23, the closest Supreme Court Justice vote in U.S. History.

Conclusion – It would be tempting to reference this case as a divided government that did not take up a vote on Stanley Matthews until a new president had been elected and inaugurated, but that would be misleading. The divided government did take a vote on Woods, they did not on Matthews. The issue was not a divided government but real concerns about the nominee which persisted into the next government and led to the closest confirmation of a U.S. Supreme Court Justice in history.

1888 – Cleveland nominates Melville Fuller

President – Democrat (Cleveland)
Senate – Republican Majority
Result – Confirmed

In the election year of 1888 Justice Morrison Waite died in late March. In April, a month later, President Grover Cleveland nominated Melville Fuller to fill the vacancy. Fuller was not well known and the Senate took a few months of consideration, but he was confirmed to his role on July 20th.

Conclusion – This case is particularly similar to the 2016 vacancy left by Justice Scalia’s death. Both had a divided government with a Democratic President and a Republican led Senate, both had an early in the year death of a Justice (Waite in March of 1888, Scalia in February of 2016) and both had a nomination of a Justice to fill the vacancy (Fuller in April of 1888, Garland in March of 2016). The obvious difference is that the Senate of 1888 considered and voted on President Cleveland’s nominee, the Senate of 2016 did not.

1892 – Harrison nominates George Shiras

President – Republican (Harrison)
Senate – Republican Majority
Result – Confirmed

I could not locate the exact date that Justice Joseph Bradly stepped down from the court but it was likely in late 1891 (he died on Jan 22nd of 1892). President Benjamin Harrison nominated George Shiras to replace him on July 19th of 1892 and he was confirmed a week later on July 26th.

Conclusion – A vacancy occurred on the Court late in the year before the election and a nomination was made in the year of the election by a Republican president with a Republican majority in the Senate.

1893 – Harrison nominates Howell Jackson

President – Republican (Harrison)
Senate – Republican Majority
Result – Confirmed

In January of the “lame duck session” of 1892/1893, Justice Lamar died leaving a vacancy on the court (Inauguration’s back then were on March 4th). President Harrison, a republican, had been defeated in his re-election bid by Grover Cleveland, a democrat. In addition, the current republican majority Senate was about to be replaced by a democratic led Senate. Despite the fact that the election was over and the democrats had won both the presidency and the Senate, Harrison moved forward with a nomination. On February 2nd President Harrison nominated Howell Jackson to fill the vacancy, and Jackson was confirmed on February 18th, just 14 days before the election and the transfer of power.

One important note for this case – Justice Jackson was a democrat! You read that right – a republican president nominated, and a republican Senate confirmed, a democratic justice to fill the vacancy.

Conclusion – While democrats at the time may have preferred for President Harrison to wait and let them fill the vacancy, filling said vacancy with a democratic judge certainly marks this case as distinct from any conversation we are having now.

1916 – Wilson nominates Louis Brandeis

President – Democrat (Wilson)
Senate – Democratic Majority
Result – Confirmed

In January of 2016, an election year, President Wilson nominated Louis Brandeis to the court. Brandeis was a contentious nomination and, for the first time, the Judiciary Committee held public hearings on the nomination. After months of debate and consideration Brandeis was confirmed by the Senate in early July.

Conclusion – A vacancy in the court existed early in an election year and President Wilson filled it.

1916 – Wilson nominates John Clarke

President – Democrat (Wilson)
Senate – Democratic Majority
Result – Confirmed

In June of the same election year as the case above, a second vacancy arose. Republican Justice Hughes resigned from the court in order to accept the Republican nomination for President. Justice Hughes resigned in June and in July President Wilson sent his nomination of John Clarke to the Senate. Ten days later Justice Clarke was confirmed to the court unanimously.

Conclusion – There are clear similarities between this case and the present day scenario. A vacancy on the court occurred near to an election and the presidency and Senate were controlled by the same party. The situation is not the same given that the 1916 vacancy occurred 3 months earlier than the 2020 vacancy and the nominee was confirmed unanimously, but there are still significant similarities.

1925 – Coolidge nominates Harlan Stone

President – Republican (Coolidge)
Senate – Republican Majority
Result – Confirmed

After the 1924 election Justice McKenna stepped down. President Coolidge had been re-elected and on January 5th nominated Harlan Stone to fill the vacancy. Justice Stone was confirmed on February 5th.

Conclusion – A vacancy occurred after the election where the incumbent had won and where there had been, and would remain, a republican led Senate. Therefore, President Coolidge nominated a new justice.

1932 – Hoover nominates Benjamin Cardozo

President – Republican (Hoover)
Senate – Republican Majority
Result – Confirmed

In January of election year 1932 a vacancy was created on the court from outgoing Justice Holmes. In an act that feels impossible to imagine in our current context, then President Hoover (R) with a republican led Senate, nominated Benjamin Cardozo (D) to the court. Cardozo was widely respected and was unanimously confirmed to the court on February 24th.

Conclusion – A vacancy occurred early in an election year and a republican president chose a democratic judge to fill the vacancy. Wow!

1956 – Eisenhower nominates William Brennan

President – Republican (Eisenhower)
Senate – Democratic Majority
Result – Confirmed

Just weeks before the 1956 election Justice Minton stepped down from the court. President Eisenhower (R) used a recess appointment to install Justice William Brennan (D) to the court. After Eisenhower won his bid for re-election in late 1956, Brennan was officially confirmed as a justice of the Supreme Court.

Conclusion – A late vacancy was created and republican President Eisenhower filled the vacancy with a democratic judge. (note – most understand Eisenhower’s choice of a democrat from the northeast as a political move to support his re-election campaign)

1968 – Johnson nominates Abe Fortas & Homer Thornberry

President – Democrat (Johnson)
Senate – Democratic Majority
Result – No Action

In June of 1968 then Chief Justice Warren announced his resignation. President Johnson attempted to nominate Abe Fortas (already a Supreme Court Justice) to become Chief Justice and to nominate Homer Thornberry to the fill the vacancy of the court. However, Fortas’ nomination was riddled with contention and potential scandal from the start and eventually Fortas removed himself from consideration for Chief Justice. This left him on the court and Thornberry’s nomination became moot. The vacancy was eventually filled the following year by President Nixon.

Conclusion – A vacancy occurred in an election year and a Democratic President made two nominations, one to replace the Chief Justice with an existing Justice and another to fill the vacant seat on the court, but contention and scandal over the existing Justice Fortas derailed both nominations.

2016 – Obama nominates Merritt Garland

President – Democrat (Obama)
Senate – Republican Majority
Result – No Action

Justice Antonin Scalia died on February 13th of 2016 and President Obama nominated Merritt Garland to fill the vacancy on March 16th. No vote was taken by the Senate.

Conclusion – A judge died early in an election year and the Democratic president nominated someone to fill the vacancy but a Republican Senate did not consider that candidate. There is no case in U.S. History that is comparable.

My Final Analysis

If precedent is meant to inform the actions of the President and the Senate when it comes to the nomination and confirmation of a Supreme Court Justice in an election year, here is what I think is historically true about the last two election year vacancies:

  • There is no credibility to the claim that a divided presidency/Senate means that a nominee should not be considered in an election year. There is only one genuine example of an election year vacancy with divided leadership from 1888 and a candidate was nominated and confirmed. The 2016 refusal to consider Merritt Garland’s nomination was unprecedented.
  • There is no direct parallel to the current vacancy from Justice Ginsburg’s seat. The closest examples are:
    • 1864 when a republican president (Lincoln) and republican Senate encountered a vacancy just four weeks before the election. In that case they waited until after the election to nominate and confirm someone. Our current case is 6.5 weeks before the election.
    • 1916 when a democratic president (Wilson) and democratic Senate had a vacancy in June (4.5 months before the election) and filled the vacancy soon after.

Published by

Joshua Throneburg

I live in Charlottesville, VA with my wife and 2 rambunctious daughters. I have spent most of my adult life as a pastor. I golf, poorly.

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