In election years, a (spotty) history of confirming court nominees

by Jonathan H. Adler

Jonathan H. Adler teaches courses in constitutional, administrative, and environmental law at the Case Western University School of Law, where he is the inaugural Johan Verheij Memorial Professor of Law and Director of the Center for Business Law and Regulation.

Today’s New York Times featured a widely circulated op-ed by historian Timothy Huebner on the history of presidential election year vacancies on the Supreme Court. There’s lots of interesting information in the piece, but I also think it overstates the extent to which the U.S. Senate has acted quickly to fill Supreme Court vacancies created within a year of a presidential election.

Here’s is Professor Huebner’s central claim:

On 13 occasions, a vacancy on the nation’s highest court has occurred — through death, retirement or resignation — during a presidential election year. This does not include the most recent and frequently cited example, Justice Anthony Kennedy, who was nominated by Ronald Reagan in November 1987 to fill a vacancy and won confirmation from a Democratic-controlled Senate in February 1988.
In 11 of these instances, the Senate took action on the president’s nomination. . . .
in cases when vacancies have arisen during election years, the weight of history is clearly on the side of the president naming a successor and the Senate acting on that nomination.

By my count, there have been 15 occasions in which a vacancy arose in an election year, defined as a vacancy that occurred within a year prior to the election. (This is what I understand is the standard Huebner used.) Note that this excludes three instances in which vacancies arose after the election, even though some of those were filled in the same calendar year as the election. I understand Huebner would also exclude the vacancy created by Oliver Ellsworth in 1800 and filled by John Marshall in January 1801. The Supreme Court Historical Society says Ellsworth retired in September, however, so that’s the date I used.

In only seven of these cases were the nominees confirmed prior to the election. That’s fewer than half (or half if we exclude Marshall). In two others, a president’s election year nominees were confirmed after the election, but in both of these cases (as with Marshall) the nomination was not made until after the election either (and in one, the nominee was the sixth sent up for that seat). The remaining five vacancies were not filled until later, usually by subsequent presidents....

Read entire article at WaPo Volokh Blog