With a new administration taking over in Washington, all eyes will be on the appointment of a new Supreme Court Justice. In historical terms, how unique is the nomination a new Justice mid-term as a new President takes office?
To find a similar scenario where a President from a party differing from his predecessor made a Supreme Court nomination right off the bat, we had to go back to 1853 and the new administration of Franklin Pierce. Pierce nominated John Archibald Campbell to the Court, who served there until 1861 (when Campbell left to join the new government of the Confederate States of America).
It’s certainly possible for Donald Trump to nominate a new Justice as soon as he takes the oath of office on January 20, 2017. If the nominee can get through the confirmation process by mid-March, and if the Democrats don’t mount a filibuster effort, the ninth Justice could take part in arguments that wind up in late March and late April. But the situation involving the change of power in Washington is special in several ways.
It is rare for any new President to nominate a Supreme Court Justice as soon as a presidential term starts. Just 25 of the 161 court nominations made since 1789 have been made in the month of January, when the Court is in the middle of its own term that usually ends in June. Of those 25 nominations, few were made just after a presidential election was concluded. Since 1933, when the 20th Amendment placed the start of presidential and congressional terms in January, only William Brennan in 1957 was nominated to the Court in a January after a presidential election.
In that situation, the re-elected President, Dwight Eisenhower, nominated Brennan a week before the presidential inauguration. Brennan was confirmed by a Senate voice vote about two months later.
To find an instance where a new President from a different party made a Supreme Court nomination immediately took some digging through Supreme Court records. There were 16 scenarios since 1828 where a new President from a different party took over the White House. In 14 of those 16 instances, the new President had his first nominee confirmed by a Senate controlled by their own party.
Of those 14 successful nominations, only two were made immediately as the start of a presidential term - in 1829 and 1853.
In the first case, back in March 1829 Andrew Jackson and his Democratic Party ushered in the modern era of politics, when Jackson and the Democrats controlled the White House, the House and the Senate. Jackson had just unseated his rival, John Quincy Adams, in a nasty 1828 election. The new President took office on March 4, 1829. Two days later, President Jackson nominated John McLean to replace Robert Trimble on the Court. The next day, the Senate approved McLean in a voice vote.
And in March 1853, Pierce became President after the Democrats swept the White House, the House and the Senate in the 1852 election that saw the demise of the Whig Party. As the new President, Pierce was able to get his first and only Supreme Court nominee, Campbell, confirmed within two weeks of taking office.
In the other cases, the nomination and confirmation process took some time. In 1845, Democratic James Polk waited 10 months to nominate George Woodward as a replacement for Justice Henry Baldwin after former President John Tyler, a Whig, repeatedly failed to replace Baldwin on the bench. Polk also nominated Levi Woodbury to replace Joseph Story. After about one month of deliberations, the Senate approved Woodbury but rejected Woodward.
In 1861, Abraham Lincoln took office from his Democratic predecessor James Buchanan as the Civil War started. But Lincoln waited 10 months to make his first court nomination, which was successful.
In March 1893, Democrat Grover Cleveland regained the White House from Benjamin Harrison, and the Democrats retained control of the House and Senate. President Cleveland, however, saw his first two nominees defeated for the Supreme Court by his own Democrat-controlled Senate in an inter-party dispute.
Republican William McKinley swept into the White House in 1897 as Cleveland’s replacement, enjoying a majority in the House and Senate. His only Supreme Court nominee, Joseph McKenna, came nine months into McKinley’s first term and he was confirmed within five weeks.
Woodrow Wilson also came into the White House in 1913 with a congressional majority, thanks to the Democrats regaining the Senate for the first time in 20 years. Wilson’s first Court pick was James McReynolds, who was nominated 18 months after Wilson’s inauguration. McReynolds was easily confirmed after 10 days of Senate deliberation.
Eight years later, Warren Harding replaced Wilson as the Republican Party dominated the elections for President, the House and the Senate. Harding named four Justices to the Court during his brief time in office. Harding’s first appointment came about four months after his inauguration: former President William Howard Taft was nominated and confirmed as Chief Justice on June 30, 1921.
The start of the Franklin Roosevelt era saw the Democrats gain back control of the White House and Congress in the 1932 general elections. President Roosevelt had to wait until his second term to make his first Supreme Court nomination as Roosevelt openly battled a conservative Court. Hugo Black was the first of nine Justices appointed by Roosevelt and he was confirmed over a five-day period in August 1937.
Dwight Eisenhower also came into the White House in January 1953 as his Republican Party gained control of the House and Senate back from the Democrats. It took Eisenhower nearly a year to make his first Court nomination, selecting Earl Warren as Chief Justice. Warren’s confirmation process took less than two months.
John F. Kennedy’s narrow win over Richard Nixon in 1960 also came with Democratic control of the House and Senate. Kennedy’s first Supreme Court nomination was his long-time friend, Byron White. White’s nomination came about 14 months into Kennedy’s only term and it took the Senate eight days to confirm the nomination.
Richard Nixon’s win 1968 saw the new President not enjoying Republican Party control over Congress, as the Democrats retained 62 Senate seats. However, Nixon’s first Court nomination was Warren Burger as Chief Justice in May 1969. The Burger nomination process took about three weeks and he was easily confirmed by the Senate. (Nixon’s next two nominations were not approved by the Senate.)
Ronald Reagan’s win over Jimmy Carter in 1980 also saw the Republicans gain back Senate control for the first time since the 1952 elections. Reagan’s first Court nomination came in August 1981, when Sandra Day O’Connor was nominated and confirmed easily during a one-month period.
After the 1992 elections, the Democrats had regained control of the White House, with Bill Clinton defeating George H.W. Bush and Ross Perot. The Democrats also enjoyed significant margins in the Senate and House. Clinton’s first Court nominee, Ruth Bader Ginsburg, came about six months into his first term and Ginsburg was easily confirmed over a seven-week period.
President George W. Bush didn’t get to make his first Court nomination until seven months into his second term. Bush’s nominee was John G. Roberts, Jr., who eventually replaced William Rehnquist as Chief Justice. The Republicans controlled the Senate at the time of Roberts’ nomination, which took about five weeks.
And in 2009, Barack Obama became President with a Democratic majority in the House and Senate. Obama’s first Court nominee was Sonia Sotomayor in June 2009, who was confirmed over a two-month period.
As for any prospective Trump nominee, if his candidate is nominated in January, the average nomination and confirmation process has been between two and three months since the Reagan era.
Scott Bomboy is the editor in chief of the National Constitution Center.
