I have previously written up the history (mainly here and here) of Supreme Court nominations in presidential election years, or in lame-duck sessions following a presidential election. To summarize: there have been 29 such vacancies, and presidents made nominations for all of them, in most cases promptly:
- In 19 cases, the president’s party held the Senate; 17 of the 19 vacancies were filled, the exceptions being the bipartisan filibuster against Lyndon Johnson’s nominees in 1968 and George Washington’s withdrawal and resubmission in the next Congress of a nominee who was ineligible to be confirmed (he’d voted to create the Court, and the Constitution made him wait until there was a new Congress seated). Nine of those 17 were confirmed before the election, and eight after. Three were confirmed in lame duck post-election sessions even though the president had just lost reelection.
- In ten cases, the party opposing the president held the Senate; only one of the ten got a nominee confirmed before the election, two were confirmed after the election when the president’s party won the election, and one (Dwight Eisenhower’s nomination of William Brennan) was a pre-election recess appointment that was confirmed by the new Senate in the new year after Eisenhower was reelected.
It is, however, true that none of the nominees confirmed before the election passed the Senate later than mid-July. Why? Mostly because the Senate was out of session. It was once common for the Senate to be out of session for much of the summer and fall. Leaving aside cases where a nomination was already made and rejected before mid-July (by one means or another, including the Republican rejection of the Merrick Garland nomination), there have been six cases where a vacancy opened or was unresolved between mid-July and the election:
- In 1828, a vacancy opened on August 25, but the Senate was out of session until December 1. John Quincy Adams sent up John Crittenden’s nomination on December 17, but the Jacksonian Democrats controlled the Senate and Adams had just lost the election to Andrew Jackson, so the seat was held open for Jackson to fill.
- In 1852, a vacancy opened on July 19. Millard Fillmore sent up the nomination of Edward Bradford on August 16; the Senate, controlled by Democrats (Fillmore was a Whig), tabled Bradford’s nomination on August 31 and went home until December. Two more Fillmore nominees were rejected by the lame-duck Senate.
- In 1860, a vacancy opened on May 31. The Senate was in session, and controlled by James Buchanan’s Democrats, but with the party fracturing in two (its second effort at a convention was held June 18-23, ending in a Southern walkout), the feckless Buchanan failed to submit a nomination before the session ended in late June, adjourning until December. By the time Buchanan finally submitted Jeremiah Black’s nomination in February, many of the Democrats had left the Senate as their states seceded, and Republicans now controlled the chamber. Black lost by one vote (on a party-line 26–25 vote), and the seat was left open to be filled by Abraham Lincoln.
- In 1864, Lincoln’s nemesis, Chief Justice Roger Taney (the author of Dred Scott) died on October 13. Republicans controlled the Senate, and Taney had been an obstacle to the war effort, but the Senate was out of session between July 4 and December 5. On December 6, in the lame-duck session (after both he and the Republican Senate had won reelection), Lincoln sent the nomination of Salmon P. Chase, his former Treasury Secretary, as Chief Justice. Chase was confirmed that day.
- In 1956, a vacancy opened on October 15. The Democrat-controlled Senate had recessed for the year on July 27. Dwight Eisenhower, the Republican president, made a recess appointment of William Brennan, a Democrat from the New Jersey Supreme Court. After both Eisenhower and the Senate Democrats were reelected, Ike submitted Brennan for Senate confirmation in January, which he won.
- On June 26, 1968, Lyndon Johnson nominated Associate Justice Abe Fortas to be Chief Justice (replacing Earl Warren, who announced two weeks earlier that he would be stepping down), and LBJ crony Homer Thornberry to fill the open seat. This was the only election-year nomination rejected by a Senate controlled by the president’s party; a variety of ethical and ideological objections led to a bipartisan filibuster of the nominations. A cloture vote was held at Johnson’s insistence on October 1, the closest Supreme Court vote to an election. It was largely a face-saving vote. When the vote failed, Johnson withdrew the nominations. Fortas eventually resigned from the Court in disgrace, and Richard Nixon got to fill both seats.
The only arguable precedent for a president delaying the nomination while the Senate was in session is Buchanan, and of course, that ended with the nation sliding into civil war. Lincoln and Eisenhower both had fresh vacancies to fill in the fall, but the Senate was not there to hear them. LBJ was able to force an October vote only once it was clear that his nominees were going down. Of course, we’ve had nomination votes close to an election in midterm years: Antonin Scalia, Arthur Goldberg, and George Sutherland were all confirmed in September before a midterm election, and Brett Kavanaugh and David Souter were both confirmed in October before a midterm.
As I have argued, the historical precedents support Mitch McConnell in distinguishing between election-year nominees when the president’s party controls the Senate — and thus, there’s no inter-branch disagreement for the voters to resolve — and when the White House and Senate are at odds. Still, we can recognize that the particular timing of this nomination is new, and that means the political fallout will be all that much more unpredictable.