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Why the current Supreme Court nomination situation isn’t that unique

February 14, 2016 by Scott Bomboy


Hours after Justice Antonin Scalia’s death on Saturday, experts were looking for precedents about his passing and a replacement nominee in a presidential election year. While it is unusual for a sitting Justice to die during such a time, there are past cases where nominations have been handled differently.

480px-Antonin_ScaliaJustice Scalia died in West Texas at the age of 79 while on a hunting trip at a ranch, apparently of natural causes. Scalia’s passing could greatly complicate the Supreme Court’s work, since there are now an even number of Justices.

How rare and difficult is it to nominate and confirm a new Justice during a presidential election year? There are Justices, from Anthony Kennedy to Louis Brandeis, who were appointed during bitterly contested election years. But until Scalia’s passing, eight Justices had died while actively on the Court’s bench during a presidential election year since 1789, according to official records.

In some of these cases, the nomination and confirmation of replacement Justices came quickly, but in other cases, the Senate delayed confirmations, with two instances of a replacement process taking more than two years.

Justice Robert Trimble died in August 1828 as the election campaign between President John Quincy Adams and Andrew Jackson was concluding. Adams allegedly asked Henry Clay to consider replacing Trimble, and Adams then nominated John Crittenden in December 1828, after Jackson won the general election. The Senate postponed any vote on Crittenden until Jackson became President, and John McLean was quickly approved to replace Trimble.

Justice Henry Baldwin died in April 1844 during the campaign that eventually saw James Polk elected as President. Baldwin’s death came at a time when President John Tyler lacked any political support in the Senate and he saw a total of eight Supreme Court nominations fail. It took more than two years for Tyler and then Polk to get a replacement approved for Baldwin, when Robert Grier was confirmed in August 1846.

Justice John McKinley came on to the Court as a Martin Van Buren appointee in 1837 and died in July 1852 during the presidential campaign between Franklin Pierce and Winfield Scott. President Millard Fillmore nominated three candidates to replace McKinley. The Senate didn’t act on two candidates and one withdrew. The next President, Pierce, has his candidate, John Campbell, confirmed in March 1853.

Justice Peter Vivian Daniel died in late May 1860 during the race that saw Abraham Lincoln win the White House. President James Buchanan failed to get Jeremiah Black confirmed as Daniel’s replacement in February 1861. Lincoln finally had Samuel Miller confirmed in July 1862 to replace Daniel.

Chief Justice Roger Taney died in October 1864 just before Lincoln won re-election. Lincoln nominated Salmon P. Chase to become Chief Justice on January 6, 1865 and Chase was approved on the same day by the Senate.

Chief Justice Morrison Waite died unexpectedly in March 1888 during President Grover Cleveland’s re-election campaign against GOP candidate Benjamin Harrison. Cleveland nominated a replacement, Melville Fuller, in April 1888, and he wasn’t confirmed until July 1888. The Republicans controlled the Senate by two votes, but Fuller won his nomination by 21 votes.

Justice Joseph Bradley died in January 1892, the election year that saw Cleveland regain the presidency from Harrison. Harrison nominated George Shiras Jr., the cousin of GOP leader James Blaine, to replace Bradley. Shiras’s nomination and confirmation took a week in Senate controlled by the Republicans, and the approval was by voice vote.

And Justice Joseph Rucker Lamar, who had been ill in 1915 and planning to retire, died in early 1916. President Woodrow Wilson’s nomination of Brandeis, as Lamar’s replacement, during the 1916 presidential election year is one of the better-known moments in Court history. Brandeis was asked to appear at confirmation hearings and he was eventually approved by the Senate after a four-month process, even though Wilson’s party controlled the Senate. Brandeis briefly served on the bench with Charles Evans Hughes, until Hughes resigned to run against Wilson for President that fall.

To be sure, the nomination or confirmation of Justices in election years, where seats became vacant for other reasons, is more common, but still rare in the modern era. Of the 112 Justices who have served on the Court, 16 were confirmed during an election year.

In November 1987, President Reagan, a Republican, nominated Anthony Kennedy to the Court, after two prior replacement attempts (Robert Bork and Douglas Ginsburg) didn’t succeed. Kennedy was confirmed unanimously by a Democrat-controlled Senate in February 1988.

President Lyndon Johnson failed with two nominations during the contentious 1968 election year when Republicans filibustered Abe Fortas’s elevation as Chief Justice to replace Earl Warren, who had announced retirement plans. Warren and Fortas stayed on the Court while Homer Thornberry was denied a chance to replace Fortas as an Associate Justice.

Other Justices who either resigned or retired during presidential election years included Oliver Ellsworth, Alfred Moore, Samuel Nelson, William Strong, Ward Hunt, Oliver Wendell Holmes, Hughes, and Sherman Minton.

Successful election-year confirmations included William Johnson, Taney (elevated to Chief Justice), Philip Barbour, Salmon Chase (elevated to Chief Justice), Hunt, William Woods, Lucius Lamar, Mahlon Pitney, John Clarke, Benjamin Cardozo, Frank Murphy, and Anthony Kennedy.

It’s notable that while Kennedy’s confirmation was in 1988, he was nominated in late 1987. President Johnson’s nominations in the 1968 election year were unsuccessful. President Franklin Roosevelt’s successful nomination of Murphy in 1940 was the last time a candidate was nominated and confirmed within a presidential election year.

William J. Brennan was named as a recess appointee by President Dwight D. Eisenhower in October 1956, the same day that Justice Minton retired. The move was seen to attract votes in the following month’s presidential election. President Eisenhower was a Republican, while Brennan was a Democrat and Catholic. Brennan’s official nomination and confirmation were in 1957.

Scott Bomboy is the editor in chief of the National Constitution Center.

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