ONLY SIX SEATS on the Supreme Court became vacant then were left empty by the Senate for a later president to fill. Now, some Senators are “setting a precedent” to outright ban election year nominations from Senate consideration.
At the Constitutional Convention, “No one took the view that the Senate could simply refuse to perform its job, undermining the administration of justice.” Since then, through American history, precedents have been established (or not established). Here is a detailed review.
First we look at current events. Then, we brief the history. Next, we look at claims others are making. Finally, we provide an in-depth review of the history. We find that only one popularly elected president (45%) has ever been denied a vacancy appointment — on the eve of the Civil War, and after he lost the next election; but an actual floor vote was held. Complete coverage below.
RECENT EVENTS SUMMARY
On February 13, 2016, Supreme Court Justice Antonin Scalia died suddenly, leaving a vacancy on the Court in an election year. Within an hour of the announcement, Republican Senate Majority Leader Mitch McConnell proclaimed, “This vacancy should not be filled until we have a new president.” Later that day, Senator Lindsey Graham warned, “You better find a consensus choice.” Vice president Joe Biden later suggested compromise, conceding that a liberal nomination was “not going to happen.”
Barrack Obama had considered appeals court judge Merrick Garland twice before, but then chose someone else. Merrick Garland supported a major George W. Bush policy. In 2008, Merrick Garland upheld the George W. Bush policy of indefinite detention. His decision was overturned 5-4 by the Supreme Court.
Nevertheless, on March 16, 2016, with some Republicans refusing all consideration and others insisting upon “consensus,” Barrack Obama nominated Merrick Garland to fill the vacancy.
HISTORIC EVENTS SUMMARY
Six empty Supreme Court seats were not filled by the current president at the time of the vacancy. Only two of those seats arose during the term of an elected president, in 1828 and 1860. The other four presidents arrived without an election. In the 1860 case, the president was so out of favor that he lost his own party nomination. But the Supreme Court nomination was debated anyway — after the election.
This leaves just one more case with an unfilled seat, 1828. The 1828 case was an oddity in history. President John Q. Adams was selected by the House of Representatives after losing both the popular vote and the electoral vote. Regardless, the Senate debated in 1829 after the next election, and recorded floor votes. Today, some in the Senate are refusing all consideration.
Many are making comparisons of the current Antonin Scalia vacancy to past situations that are simply invalid. Here are the major invalid comparisons and claims.
In 1968, a nomination was not approved by the Senate. However, there was no actual vacancy. Because there was no vacancy, filling a vacancy simply could not be denied. Details for 1968 are covered below.
In some cases, nominations have been denied. The 1987 case of Robert Bork is often mentioned. However, the Senate approved the nomination of Anthony Kennedy and filled that same seat while the same president was in office. The president was not denied “advice and consent.”
Some articles look at the composition of the government. Where the presidency and the Senate are controlled by opposing parties, confirmation of a nomination is less likely. That is expected. But the Constitution does not have the blanket “opposition party” exception to “advice and consent,” which is different anyway from what is now being proposed.
Finally, much has been made of a 1992 speech by Senator Joe Biden where he discussed election-year Supreme Court vacancies. Whatever “side” is taken on the meaning of his words, he was just one Senator describing a hypothetical situation. The Constitution does not turn upon the spoken speculation of a single Senator.
Only six vacant seats were held-over to be filled by a later president. Here are all of those cases and others of particular interest to the debate.
JOHN ADAMS (1797-1801) seat filled
In 1800, John Adams of the Federalist party was the president, running for re-election. Thomas Jefferson of the Democratic-Republican party challenged him. While Chief Justice Oliver Ellsworth was overseas negotiating with Napolean, the Justice became ill. He resigned from the Supreme Court on October 30, 1800.
In the 1800 election, the Democratic-Republican party took control of the House, gained seats in the Senate, and won the presidential election with over 60 percent.
In January 1801, after the elections, John Adams nominated John Marshall to the Supreme Court. The outgoing Senate provided “advice and consent,” and John Marshall was approved. The outgoing government also changed the rules for judicial appointments and reduced the number of Justices on the Supreme Court for the purpose of denying the incoming government its ability to name appointments. Then, the lame duck government rushed to make appointments and prepare “commissions.”
Some of these commissions were not yet delivered when Thomas Jefferson took office. He reviewed them and refused to deliver some. One refusal was of William Marbury. In a lawsuit brought by Marbury against Secretary of State James Madison, Chief Justice John Marshall and the Court declared the refusal to deliver the commission by new president Thomas Jefferson to be illegal and ordered delivery.
This is where a related precedent was set. Vacancies filled by the outgoing president and approved by the outgoing Senate were valid. The Supreme Court itself said so.
THOMAS JEFFERSON (1801-1809) seat filled
On January 26, 1804, Justice Alfred Moore decided to leave his position. President Thomas Jefferson, while running for re-election, nominated successor William Johnson, who was approved and began work on May 7, 1804, before the election.
JOHN Q. ADAMS (1825-1829) first seat not filled
John Quincy Adams assumed the presidency in 1825 after losing both the popular and electoral vote to Andrew Jackson. He was appointed by the House of Representatives.
On August 25, 1828, Justice Robert Trimble died suddenly. On December 17, 1828, after John Q. Adams lost the election to Andrew Jackson, Adams nominated John Crittenden to the Supreme Court. The Senate debated the nomination for nine days. The Senate voted 23-17 to delay action upon the nomination until a report by the Judiciary Committee was completed. The committee was looking at reducing the number of Supreme Court seats.
On February 12, 1829, the Senate voted on the bigger question, refusing by a vote of 17-23 to commit that the “duty of the Senate to confirm or reject the nominations of the President, is as imperative as his duty to nominate; that such has heretofore been the settled practice of the government; and that it is not now expedient or proper to alter it.”
When John Q. Adams provided a nomination after he lost election, the Senate debated and voted twice on the issue. On March 7, 1829, the seat was filled by Andrew Jackson with John McLean.
MARTIN VAN BUREN (1837-1841) seat filled
President Martin Van Buren lost the 1840 election. On February 25, 1841, Justice Philip Barbour died. Martin Van Buren nominated Peter Daniel who was approved March 2, 1841.
With John Marshall approved in 1800 and Peter Daniel approved in 1841, the 1829 refusal to commit the Senate to consider all Supreme Court nominations became an oddity in between.
JOHN TYLER (1841-1845) second seat not filled
On April 4, 1841, a month after his inauguration, president Benjamin Harrison died. John Tyler became the first person to become the President without an election. As such, he was nicknamed “Your Accidency.” John Tyler was so widely despised that he chose not to run for re-election.
On December 18, 1843, Justice Smith Thompson died. On April 21, 1844, Justice Henry Baldwin died. Now two seats were vacant with an election coming.
John Tyler made multiple attempts to replace these two with the Senate refusing. Finally, on February 14, 1845, long after the election, the Senate approved nominee Samuel Nelson. John Tyler got his “advice and consent” but he only picked one nominee suitable to Senate consent before time ran out. The other vacant seat was filled by next president James Polk with nominee Robert Grier.
MILLARD FILMORE (1850-1853) third seat not filled
On July 9, 1850, president Zachary Taylor died. Millard Filmore assumed the presidency. Justice Levi Woodbury died on September 4, 1951. Millard Filmore nominated Benjamin Curtis, who was confirmed December 20, 1851, while already serving as a recess appointee.
On June 20, 1852, Millard Filmore lost the presidential nomination of his own party at a contested convention.
Justice John McKinley died July 19, 1852. Millard Filmore tried three times to fill this vacancy. On August 16, 1852, Millard Filmore nominated Edward Bradford. No Senate action was taken. On January 3, 1853, Millard Filmore nominated George Badger. This nomination was debated for a few days, then postponed until after inauguration day. On February 14, 1853, Millard Filmore nominated William Micou. No action was taken. The vacancy was filled by the next president Franklin Pierce with John Campbell.
JAMES BUCHANAN (1857-1961) fourth seat not filled
James Buchanan was a member of the Democratic party. He won 45 percent of the vote in a three-way election. In 1857, the infamous Dred Scott Supreme Court decision came down, expanding slave owner rights. As the nation headed toward the Civil War, the Democratic party split into Northern and Southern factions. Southern Democrats held their convention in April and Northern Democrats in June.
On May 1, 1860, Justice Peter Daniel died. On February 5, 1861, James Buchanan nominated Jeremiah Black to the Supreme Court. The Senate actually held a vote and voted against him, 25-26. The seat was filled by the next president Abraham Lincoln with Samuel Miller.
ANDREW JOHNSON (1865-1869) fifth and six seats not filled
Andrew Johnson became the unelected president on April 15, 1865, after Abraham Lincoln was killed. Democrat Andrew Johnson faced an overwhelmingly Republican Congress.
On May 30, 1865, Justice John Catron died. Andrew Johnson nominated Henry Stanbery. In 1866, Congress passed the Judicial Circuits Act. reducing the number of Justices on the Supreme Court as vacancies arose. Henry Stanbery was no longer eligible to become a Justice. On July 5, 1867, Justice James Wayne died. Under the new law, no replacement was named. Andrew Johnson was later impeached. The trial in the Senate ended in a vote of 35-19, one vote short of the two-thirds majority required for removal.
Unelected president Andrew Johnson lost two appointments due to a super-majority Republican Congress changing the number of seats allowed.
DWIGHT EISENHOWER (1953-1961) seat filled
On October 15, 1956, right before the election, Justice Sherman Minton retired due to health issues after providing a few weeks of notice. Dwight Eisenhower replaced him the same day in a recess appointment with William Brennan. On March 19, 1957, after Dwight Eisenhower was re-elected, the Senate approved the nomination.
LYNDON JOHNSON (1963-1969) seat not vacated
On November 22, 1963, president John Kennedy was shot and killed and vice president Lyndon Johnson became the president. Lyndon Johnson then won the 1964 election as a Democrat.
In March, 1968, with Lyndon Johnson unpopular due to the Viet Nam war, and with the Democratic party splintering into factions over civil rights, Robert Kennedy, the brother of the slain John Kennedy, decided to launch a primary challenge. On March 31, 1968, Lyndon Johnson announced that he would not seek a second full term. On June 6, 1968, Robert Kennedy was shot and killed. A few days later, Chief Justice Earl Warren told Lyndon Johnson that he would like to resign.
Abe Fortas was a sitting Supreme Court Justice. On June 26, 1968, Lyndon Johnson nominated him to become the Chief Justice and nominated Homer Thornberry to fill the coming strategic vacancy.
Abe Fortas was called to testify before the Senate. After hearings, his nomination was blocked for at least three reasons. (1) Many Senators from both parties did not support his Constitutional views. (2) He had collected large speaking fees from private interests. (3) A minority of 19 Republican Senators refused to consider his nomination against the wishes of Republican presidential candidate Richard Nixon. 19 does not set a precedent.
On October 4, 1968, Lyndon Johnson withdrew both nominations. There was no vacancy, so Homer Thornberry could not be approved. No vacant seat was ever denied. Earl Warren finally retired after Richard Nixon was in office, and Richard Nixon appointed his successor, Warren Burger.
Abe Fortas later became involved in another fee scandal, and was forced to resign.
GERALD FORD (1974-1977) seat filled
President Richard Nixon appointed four Justices to the Supreme Court. Facing criminal charges, his vice president Spiro Agnew resigned. Gerald Ford was appointed to the position. Then, facing impeachment, Richard Nixon resigned. On August 9, 1974, Gerald Ford became the first and only president who was not elected to at least the vice presidency.
On November 12, 1975, Justice William Douglas retired after a stroke. Gerald Ford quickly nominated John Paul Stevens. The Senate confirmed him 98-0.
By the time of the end of the second term of Richard Nixon, he and his unelected successor had appointed a majority of the Justices on the Supreme Court.
HAVING REVIEWED every vacant seat left empty to the end of the term in American history, no-one was denied all opportunity for “advice and consent.” On the other side, many times nominations were approved in the final year. Current claims by some Republicans that consideration should be denied are unprecedented and Unconstitutional.