CRS INSIGHT
Nominations to the Supreme Court During Presidential
Election Years (1900-Present)
March 3, 2016 (IN10455)
|
Related Author
Barry J. McMillion
|
Barry J. McMillion, Analyst in American National Government (bmcmillion@crs.loc.gov, 7-6025)
This CRS Insight provides data and analysis related to nominations made to the Supreme Court during presidential
election years from 1900 to the present. As of this writing, there have been eight such nominations since 1900—six to
fill actual vacancies that existed at the time a President submitted a nomination to the Senate and two for anticipated
future vacancies on the Court (i.e., vacancies that did not exist at the time a President submitted a nomination to the
Senate). An anticipated vacancy, for example, arises when a sitting Justice announces his or her intention to retire upon
Senate approval of a new Justice.
This Insight is not intended to provide a comprehensive analysis of the Supreme Court nomination and confirmation
process. For longer analyses on the Supreme Court selection and confirmation process, see CRS Report R44235
(addressing the selection of nominees by a President), CRS Report R44236 (addressing the role of the Senate Judiciary
Committee in processing nominations), and CRS Report R44234 (addressing Senate debate and final action on
nominations).
As of this writing, some Senators have called on the Senate to wait to fill the vacancy created by Antonin Scalia's death
until after a new President is inaugurated, while other Senators have called on the Senate to confirm a nominee during
President Obama's final year in office. As discussed in previous CRS analysis of prior nominations to the Supreme
Court, multiple political and policy considerations will influence the length of time for Justice Scalia's successor to be
confirmed by the Senate. Note that this Insight does not take a position as to when the Senate should confirm a nominee
to the Scalia vacancy.
Nominations Made to Fill Actual Vacancies on the Court
As shown by Figure 1, the Scalia vacancy is historically unique in that, at least since 1900, it is the only vacancy that
has existed during the eighth, and final, year of a presidency that also arose during the eighth year itself. The vacancy
that existed in 1988 during the Reagan presidency arose prior to the eighth year (on June 26, 1987).
Note that the vacancy that existed during the 1940 election year occurred during President Roosevelt's eighth year in
office. But this vacancy existed prior to the ratification, in 1951, of the Twenty-second Amendment limiting a President
to two terms. President Roosevelt was running for re-election in 1940—consequently, there are only two vacancies
since 1900 that existed during the eighth, and final, year of a presidency (1988 and 2016).
Figure 1 also shows, of nominations made during presidential election years in which a vacancy existed on the Court,
five were made during years when a President was running for re-election—1912, two in 1916, 1932, and 1940. In two
cases (Presidents Hoover in 1932 and Taft in 1912) the incumbent President was defeated for re-election in the
November general election.
By at least one measure (i.e., whether or not a vacancy existed prior to an election year), the circumstances surrounding
the Scalia vacancy in 2016 are similar to some of the Supreme Court vacancies that existed during presidential election
years in which an incumbent President has run for re-election. Of the five nominations made when a President was
running for re-election, three were to vacancies (similar to the current vacancy) that arose during the election year itself
—two vacancies arose in 1916 and one vacancy arose in 1932.
Figure 1. Nominations to the Supreme Court During Presidential Election Years
(1900-Present)
Source: Congressional Research Service
Note: The last name in parentheses is the last name of the individual nominated by a
President. As of this writing, President Obama has announced his intention to nominate
an individual to a vacancy created by the death of Antonin Scalia on February 13, 2016.
Consequently, "TBD" is "to be determined."
Of the six nominations made to vacancies that have existed during presidential election years since 1900, each was
confirmed by the Senate—Kennedy was confirmed 97-0 (1988), Murphy confirmed by voice vote (1940), Cardozo
confirmed by voice vote (1932), Clarke confirmed by voice vote (1916), Brandeis confirmed 47-22 (1916), and Pitney
confirmed 50-26 (1912).
In five cases when a nominee was confirmed, the party of the President was the same as the majority party in the Senate
(Republicans controlled the presidency and Senate in 1912 and 1932, while Democrats controlled the presidency and
Senate in 1916 and 1940). In one case (1988), there was a Republican President (Reagan) and a Democratic majority in
the Senate.
Nominations Made for Anticipated Future Vacancies on the Court
In the two instances during election years since 1900 when nominations were made for anticipated future vacancies on
the Court, rather than actual vacancies, neither was confirmed by the Senate. President Johnson, in 1968, nominated
Abe Fortas to be Chief Justice of the Supreme Court (in anticipation of the retirement of Chief Justice Earl Warren) and
Homer Thornberry to be an Associate Justice (to replace Fortas, who was already serving on the Court as an Associate
Justice). After the Senate failed to invoke cloture on the Fortas nomination, President Johnson withdrew the
nomination. Chief Justice Warren then did not step down from the Court until 1969 and, consequently, no vacancies
existed on the Court in 1968. Additionally, the Thornberry nomination was withdrawn by President Johnson given that
Justice Fortas was not elevated to the Chief Justice position.
Recess Appointments During Presidential Election Years
Note that Figure 1 does not include recess appointments to the Court during presidential election years. Since 1900,
there has been one such appointment. On October 15, 1956, Justice Sherman Minton stepped down from active service
on the Court. On that same day, William J. Brennan received a recess appointment to the Court from President
Eisenhower. Mr. Brennan was nominated by President Eisenhower the following year, on January 14, 1957, and
confirmed by the Senate on March 19, 1957.