Final Action by the Senate on Supreme Court Nominations During Presidential Election Years (1789-2020)

Final Action by the Senate on Supreme Court Nominations During Presidential Election Years (1789-2020)

INSIGHTi

Final Action by the Senate on Supreme Court
Nominations During Presidential Election
Years (1789-2020)
October 20, 2020
On September 29, 2020, President Trump nominated Judge Amy Coney Barrett of Indiana to fill the
vacancy created by the death of Justice Ruth Bader Ginsburg. It has been reported that final action by the
Senate on the nomination will occur prior to the presidential election on November 3, 2020. If such action
occurs, the Barrett nomination will be the 22nd Supreme Court nomination that has received final action
by the Senate during a presidential election year (and the 19th that received final action prior to the
election itself).
Seven Supreme Court nominations that were pending before the Senate during a presidential election year
are not included in the analysis below. These nominations include (1) three nominations on which the
Senate took no action, including the nomination of Judge Merrick Garland in 2016; (2) two nominations
for which the nominees declined the nominations; and (3) one nomination for which a motion to proceed
on the nomination was objected to and the nomination was never submitted to the Senate Judiciary
Committee. Further information about these particular nominations are 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 called for the Ginsburg vacancy to be filled after the inauguration of the winner of
the presidential election on November 3, 2020. Other Senators have called 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.
Congressional Research Service
https://crsreports.congress.gov
IN11519
CRS INSIGHT
Prepared for Members and
Committees of Congress

link to page 3 link to page 3 link to page 3 Congressional Research Service
2
Senate Confirmation of Supreme Court Nominations During Presidential Election
Years
As shown by Figure 1, 17 (81%) of 21 Supreme Court nominations that received final action by the
Senate during past presidential election years were confirmed. A majority of the nominations confirmed
by the Senate during presidential election years occurred in either the 18th or 19th centuries—specifically,
11 (65%) of 17 such nominations were approved during election years prior to 1900. The most recent
occurrence of a nomination being confirmed by the Senate during a presidential election year occurred in
1988 with the confirmation of Anthony M. Kennedy.
Of the 17 nominations confirmed by the Senate during presidential election years, 13 (76%) featured
unified party control (i.e., the party of the President was the same as the Senate majority party) and 4
(24%) featured divided party control (i.e., the party of the President was different than the Senate majority
party). The most recent occurrence of a nomination being confirmed during a presidential election year
that featured unified party control was in 1940 (with the confirmation of Frank Murphy during the
Franklin D. Roosevelt presidency). The most recent occurrence of a nomination being confirmed during a
presidential election year that featured divided party control was in 1988 (with the confirmation of
Anthony M. Kennedy during the Reagan presidency).
Of the 17 nominations confirmed by the Senate during presidential election years, 14 (82%) were
confirmed prior to the election while 3 (18%) were confirmed after the election.
For the 14 nominations confirmed during presidential election years (and that were also confirmed by the
Senate prior to the election), the average number of days from confirmation to the presidential election
was 218 days (or approximately 7 months). The median number of days from confirmation to the
presidential election was 235 days (or nearly 8 months).
The shortest length of time from confirmation of a Supreme Court nominee to the occurrence of a
presidential election was 105 days (with the confirmation of George Shiras Jr. in July of 1892). The
greatest length of time was 295 days (with the confirmation of Lucius Lamar in January of 1888).
In contrast, as shown by the figure, the three nominations that were approved by the Senate after a
presidential election occurred relatively soon after the election (within 28 to 49 days of the election).
Other Types of Final Senate Action on Supreme Court Nominations During
Presidential Election Years
As shown by Figure 1, there have been four Supreme Court nominations during presidential election
years on which the Senate took final action other than to confirm the nominations. Three of the four
nominations occurred in 1844 during the presidency of John Tyler. The Senate voted to table two of
Tyler’s nominations and rejected a third nomination in a floor vote.
The most recent Supreme Court nomination that received a final action other than confirmation by the
Senate during a presidential election year was the nomination in 1968 by President Johnson of Abe Fortas
to the Chief Justice position (in anticipation of Chief Justice Earl Warren’s retirement). The Fortas
nomination was reported favorably by the Senate Judiciary Committee, but the Senate later failed to
invoke cloture on the nomination.
The Barrett Nomination
The Barrett nomination has been scheduled to be voted upon by the Senate Judiciary Committee on
October 22, 2020. It has also been reported that the nomination will be considered by the full Senate in
late October. As shown by Figure 1, if final action concludes prior to November 3, 2020, this would be

Congressional Research Service
3
the shortest length of time from final action to a presidential election date for any nomination that
received final action by the Senate during a presidential election year (confirmed or otherwise).
Figure 1. Final Senate Action on Supreme Court Nominations During Presidential Election
Years
(1789 to 2020)

Source: Congressional Research Service.

Congressional Research Service
4
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
Congress. Information in a CRS Report should not be relied upon for purposes other than public understanding of
information that has been provided by CRS to Members of Congress in connection with CRS’s institutional role.
CRS Reports, as a work of the United States Government, are not subject to copyright protection in the United
States. Any CRS Report may be reproduced and distributed in its entirety without permission from CRS. However,
as a CRS Report may include copyrighted images or material from a third party, you may need to obtain the
permission of the copyright holder if you wish to copy or otherwise use copyrighted material.

IN11519 · VERSION 1 · NEW