Supreme Court Vacancies That Occurred During Presidential Election Years (1789-2020)

Supreme Court Vacancies That Occurred During Presidential Election Years (1789-2020)

INSIGHTi
Supreme Court Vacancies That Occurred
During Presidential Election Years (1789-2020)
October 1, 2020
The death of Justice Ruth Bader Ginsburg on September 18, 2020, created a vacancy on the Supreme
Court during a presidential election year. This is the 14th such vacancy on the Court that has occurred
during a presidential election year from 1789 to 2020 and that also occurred prior to the election date
itself. Information and analysis related to these 14 vacancies are presented below.
The fol owing election-year vacancies on the Supreme Court fal outside the scope of this Insight: (1) four
vacancies that arose during presidential election years but occurred after the general election date; (2)
eight vacancies that arose during the year prior to a presidential election year and stil existed, for at least
some period of time, during the election year itself; (3) two anticipated future vacancies on the Court that
occurred in 1968 (i.e., vacancies that did not exist when President Johnson submitted nominations to the
Senate); and (4) six initial vacancies on the Court when it was first established by Congress in 1789.
Information about these vacancies is available from the author upon request by congressional readers.
For comprehensive analysis of the Supreme Court nomination and confirmation process, see CRS Report
R44235 (addressing the selection of a nominee 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).
Some Senators have cal ed for the Ginsburg vacancy to be fil ed after the inauguration of the winner of
the presidential election on November 3, 2020. Other Senators have cal ed on the Senate to consider
President Trump’s nominee for the vacancy, Judge Amy Coney Barrett, prior to the election. This Insight
does not take a position as to when the Senate should confirm a nominee to the Ginsburg vacancy.
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Senate Action on Nominations for Vacancies that
Occurred During Presidential Election Years
Nomination Submitted During Election Year
As shown by Figure 1, 12 (86%) of 14 vacancies that arose during a presidential election year prior to the
election had a nomination submitted to the Senate during that same year. For these 12 vacancies, 7 (58%)
had a nominee confirmed during the election year, 4 (33%) did not have a nominee confirmed during the
election year, and 1 is the current Ginsburg vacancy. The most recent vacancy that arose during a
presidential election year for which a nominee was not confirmed was the vacancy created by the death of
Justice Antonin Scalia in 2016 (prior to this, 1852 was the most recent presidential election year during
which a nomination was submitted and not confirmed by the Senate).
Of the seven vacancies that arose during presidential election years, and also had a nomination submitted
and confirmed that same year, six featured unified party control (i.e., the party of the President was the
same as the Senate majority party) and one featured divided party control (i.e., the party of the President
was different than the Senate majority party). Of the four presidential election-year vacancies for which
nominations were submitted during the election year but not confirmed, each featured divided party
control.
No Nomination Submitted During Election Year
Figure 1 also shows that 2 (14%) of 14 vacancies that arose during a presidential election year did not
have a nomination submitted until the following calendar year. In one case (the Black nomination), the
nomination was rejected by a Senate floor vote. In another case (the Brennan nomination), the nominee
was confirmed by the Senate after he received a recess appointment during the preceding presidential
election year.
The Black nomination featured unified party control (a Democratic President and Democratic Senate
majority) while the Brennan nomination featured divided party control (a Republican President and
Democratic Senate majority).
Variation in Number of Days from Vacancy Occurring to
Presidential Election Date
Figure 1 shows, for each of the 14 vacancies that arose during a presidential election year, the number of
days from the vacancy occurring to the date of that year’s presidential election.
For the 14 vacancies, the average number of days a vacancy arose prior to a presidential election was 175
days, or approximately 5.8 months (the median was 177 days).
For the seven vacancies that occurred during a presidential election year and for which a nominee was
confirmed the same year, the average number of days from the vacancy occurring to the election date was
227 days, or approximately 7.5 months (the median was 281 days). For the four vacancies that occurred
during a presidential election year and for which a nominee was not confirmed the same year, the average
number of days from the vacancy occurring to the election date was 159 days, or approximately 5.2
months (the median was 150 days).
The shortest period of time from a vacancy occurring to a presidential election date occurred in 1956,
when Justice Sherman Minton assumed senior status on October 15, 1956 (22 days prior to the

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presidential election). Wil iam Brennan, Jr., received a recess appointment by President Eisenhower on
that same date (October 15). The following year, Mr. Brennan was renominated by President Eisenhower
and confirmed by the Senate.
The second-shortest period of time occurred in 1864, when Chief Justice Roger Taney died on October
12, 1864 (27 days prior to the presidential election). Salmon Chase was nominated for the Taney vacancy
on December 6, 1864, 29 days after the presidential election. Mr. Chase was confirmed on the same day
he was nominated.
The third-shortest period of time from a vacancy occurring to a presidential election date is the current
vacancy created by the death of Justice Ruth Bader Ginsburg on September 18, 2020 (46 days prior to the
presidential election on November 3, 2020).

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Figure 1. Supreme Court Vacancies That Occurred Prior to the Election During
Presidential Election Years
(1789-2020)

Source: Congressional Research Service.

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Author Information

Barry J. McMillion

Analyst in American National Government

Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan shared staff
to congressional committees and Members of Congress. It operates solely at the behest of and under the direction of
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