One of the biggest political arguments of 2016 will be whether the Senate should confirm President Obama's nominee to the Supreme Court — or delay until 2017 so that the next president can fill the seat. Already, partisans on both sides are readying their arguments about why it would — or wouldn't — be unprecedented for the Senate to run out the clock on Obama's presidency.
A key part of the conservative argument will be that it's unprecedented for the president to nominate a candidate during an election year. "It’s been standard practice over the last 80 years to not confirm Supreme Court nominees during a presidential election year," said Sen. Chuck Grassley (R-IA) on Saturday.
Igor Volsky, a staffer at the liberal Center for American Progress, responded with a tweet listing justices who have been confirmed in election years:
- Oliver Ellsworth, 1796
- Samuel Chase, 1796
- William Johnson, 1804
- Philip Barbour, 1836
- Roger Taney, 1836
- Melville Fuller, 1888
- Lucius Lamar, 1888
- George Shiras, 1892
- Mahlon Pitney, 1912
- John Clarke, 1916
- Louis Brandeis, 1916
- Benjamin Cardozo, 1932
- Frank Murphy, 1940
- Anthony Kennedy, 1988
Volsky also listed Salmon Chase, Ward Hunt, and William Woods, but their nominations all occurred in December — after the presidential election had already happened — so it's not fair to count them as election-year choices.
Liberals, of course, will argue that this shows it would be unprecedented for Senate Republicans to refuse to confirm Obama's choice for the Supreme Court. But notably, 13 out of those 14 nominations occurred prior to World War II. That's significant because American politics — particularly the politics of the Supreme Court — has changed a lot in recent decades. For most of the 20th century, the major parties were not as ideologically polarized as they are today, and Supreme Court nominations rarely led to protracted political fights. The fact that election-year nominations were common during this period doesn't seem to say all that much about the situation today.
What about Anthony Kennedy? Here, conservatives will have a strong retort: Not only was Anthony Kennedy nominated in 1987 — not 1988 — but the only reason he was nominated at all was because Democrats had rejected the nomination of Robert Bork a year earlier. All told, President Reagan had more than 18 months to fill the vacancy created by Justice Lewis Powell's retirement, compared with about 11 months for Obama.
The Senate has rejected a few lame duck appointments — in the 19th century
It's also worth asking the flip side of this question: Has the Senate ever rejected the Supreme Court nominees of presidents in their last year in office?
The closest this came to happening in the 20th century was in 1968, when the Senate rejected Abe Fortas's nomination to be the chief justice of the Supreme Court. There was a crucial difference here, however: Fortas was already an associate justice.
However, if Republicans want to find examples of the Senate rejecting Supreme Court nominees in the final year of a presidency, they can find two good examples in the 19th century.
The first comes in 1844. John Tyler, who was elected vice president on the Whig ticket and became president on the death of President William H. Harrison, nominated three people — John C. Spencer, Reuben Walworth, and Edward King — to fill two vacancies on the Supreme Court. But none were accepted by the Senate. After the election, the Senate finally accepted another Tyler nominee, Samuel Nelson, to the high court. But the other vacancy wasn't filled until Tyler's Democratic successor, James K. Polk, took office.
Something very similar happened in 1852. President Millard Fillmore, who had been elected vice president on the Whig ticket and became president when President Zachary Taylor died, nominated Edward A. Bradford for the Supreme Court. But the Democratic Senate chose not to act on his nomination, and rejected two more nominees Fillmore submitted during his lame-duck period in 1853. Instead, the Democrats waited until Fillmore's Democratic successor, Franklin Pierce, took office in 1853. Pierce nominated John Campbell to the seat, and the Senate confirmed his nomination.
Here, again, it's hard to give too much weight to events that occurred before most of our great-great-grandparents were born. But if you look far enough back in the history book, you can find examples of the Senate rejecting presidential nominations in their final year in office.