Can there be an election year Senate confirmation of a Supreme Court Justice?

Why won’t there be an election year Senate confirmation of a new Supreme Court justice? The death of Justice Antonin Scalia shocked the current presidential nomination contest, and Republicans at last night’s debate were quick to cite a supposed “80-year precedent” without an election year Senate confirmation of any kind. Political historians were quick to point out, however, that the precedent is largely coincidental, and that there’s much more to the matter than a quick glance reveals.

For instance, there has been one election year Senate confirmation since then: as the Washington Post reminds us, Justice Anthony Kennedy was confirmed in 1988, the year that George H. W. Bush won election to the presidency. US Senator Chuck Grassley, current chairman of the Judiciary Committee, must have forgotten about his own vote in favor of Justice Kennedy’s election year Senate confirmation when he sent out a press release that stated “”It’s been standard practice over the last 80 years to not confirm Supreme Court nominees during a presidential election year.” (Grassley took his Senate seat in 1981.)

And current Senate Majority Leader Mitch McConnell, who took office in 1985, likewise forgot about his 1988 Yea vote in favor of Justice Kennedy (and about how checks and balances work) when he declared “The American people should have a voice in  the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new President.”

It’s also worth pointing out that Ted Cruz shared the 80-year falsehood from the podium at last night’s Republican primary debate–and was corrected by moderator John Dickerson:

Obviously, the Republican senators are hopeful that the next President will be a member of their party, and are hoping to forestall an election year Senate confirmation for as long as possible. It’s misleading, though, to claim any sort of precedent for no election year Senate confirmations, simply because the situation hardly ever comes up. There has only been the possibility for an election year Senate confirmation three times since World War Two. The first was Justice William J. Brennan, Jr., who President Eisenhower appointed during a Senate recess in 1956, and who the Senate confirmed in 1957, following Eisenhower’s resounding re-election. (Technically, then, there has been an election year Senate confirmation twice in the past 80 years, though, given Congress’ current polarized state, it’s practically unthinkable that a President could use Eisenhower’s method today).

The second attempt at an election year Senate confirmation came in 1968, when, as Senator Cruz mentioned in the video above, President Johnson nominated longtime friend Abe Fortas for retiring Chief Justice Earl Warren’s seat. Fortas was already a Supreme Court Justice; however, Fortas’ close, personal friendship with the extremely unpopular Johnson, and his controversial payment for several speeches he gave while a Justice (the money came from private interests, not the law school where Fortas spoke) both torpedoed his nomination, and Fortas was not elevated to the Chief Justice’s chair. Warren delayed his retirement in order to keep his seat from going vacant, and President Nixon nominated Warren E. Burger to replace him the following year.

In none of the above instances did the Presidential election play a role in either the successful or unsuccessful nomination of the justices, as Amy Howe of SCOTUS Blog points out: “The historical record does not reveal any instances since at least 1900 of the president failing to nominate and/or the Senate failing to confirm a nominee in a presidential election year because of the impending election.” Instead, “there were several nominations and confirmations of Justices during presidential election years.” If you go back before World War Two, you’ll find that President Taft nominated Mahlon Pitney to the Court on March 13, 1912; Pitney’s election year Senate confirmation was came on March 18.

Beyond that, President Woodrow Wilson saw a successful election year Senate Confirmation twice in 1916; President Hoover did the same in 1932; and President Franklin Roosevelt followed suit in 1940. The most recent Supreme Court confirmations (Justices Kagan in 2010, Sotomayor in 2009, and Alito in 2006, along with Chief Justice Roberts in 2005) all came in off-years–as, indeed, do most years themselves.

It’s incorrect, then, to say that an election year Senate confirmation is impossible because of historical precedent. Political expediency, rather than any extant law, is the only thing standing in such a confirmation’s path.

 

(Photo credits: Election year Senate confirmation by Stephen Masker on Wikipedia; Pete Souza via the White House; public domain)