What Happened When Supreme Court Vacancies Occurred Ahead of Past Presidential Elections?

What’s the story?

• The death of Justice Ruth Bader Ginsburg on September 18, 2020, created a Supreme Court vacancy during a presidential year prior to the election, the timing of which is relatively rare. To date, there have been 114 justices who’ve served on the Supreme Court, but only 14 times has a Supreme Court seat become vacant during a presidential election year before the general election date according to the Congressional Research Service.
• Of the 14 vacancies, eight occurred when the same party controlled both the presidency and the Senate majority, including the current vacancy. In those vacancies, five nominees were confirmed to the Supreme Court before the presidential election, one was confirmed after the election, one was rejected by the Senate, and the current nomination is pending. 
• Of the six vacancies which occurred when different parties controlled the presidency and the Senate majority, four nominees were rejected or not considered by the Senate, one was confirmed on a bipartisan vote, and one was appointed in a recess appointment and later confirmed. A Senate majority declining to consider a nominee put forward by a president of the opposing party is known as the McConnell Rule or the Biden Rule.

One Party Control of the Presidency & Senate Majority

• 2020: The death of Justice Ruth Bader Ginsburg created a vacancy 46 days prior to the presidential election. President Donald Trump, who is running for re-election, nominated Judge Amy Coney Barrett as her successor on September 26th. The Republican Senate is expected to begin confirmation hearings on October 12th, and may vote on her confirmation before the end of the month.  
• 1932: The retirement of Justice Oliver Wendell Holmes in January created a vacancy 301 days before the election. President Herbert Hoover nominated Benjamin Cardozo to fill the vacancy in February, and the Senate confirmed Cardozo on a voice vote later that month. 
• 1916: Justice Charles Evans Hughes resigned from the Supreme Court in June so that he could accept the Republican nomination and challenge President Woodrow Wilson, which created a vacancy 150 days prior to the election. Wilson nominated John Clarke to succeed him, and Clarke was confirmed on a voice vote in July.
• 1916: The death of Justice Joseph Lamar in January created a vacancy 310 days prior to the election. President Woodrow Wilson was running for re-election and nominated Louis Brandeis to fill the vacancy in January. The Senate confirmed Brandeis on a bipartisan 47-22 vote in June.  
• 1892: The death of Justice Joseph Bradley in January created a vacancy 291 days before the election. President Benjamin Harrison, who was running for re-election, nominated George Shiras as Bradley’s successor. Shiras was confirmed by the Republican Senate by voice vote in July.
• 1864: The death of Chief Justice Roger Taney in October created a vacancy 27 days prior to the election. President Abraham Lincoln, a Republican running for re-election on the National Union ticket, was unable to immediately put forward a formal nomination because the Senate wasn’t in session, but named Salmon Chase as the nominee to appease Radical Republicans in his coalition. Lincoln submitted Chase’s formal nomination when the Senate reconvened in December, and the nominee was confirmed by voice vote the same day.
• 1860: The death of Justice Peter Daniel in May created a vacancy 159 days prior to the election. President James Buchanan, who didn’t pursue re-election and supported Democrat John Breckinridge in his unsuccessful campaign, waited to nominate Jeremiah Black to fill the vacancy in February 1861, but the Senate rejected his nomination.
• 1804: The retirement of Justice Alfred Moore from the created a vacancy 281 days prior to the presidential election. President Thomas Jefferson, who was running for re-election, nominated William Johnson on March 22nd. Johnson was confirmed by the Senate via voice vote on March 24, 1804.

Different Parties Control the Presidency & Senate Majority

• 2016: The death of Justice Antonin Scalia in February created a vacancy 269 days prior to the election. Democratic President Barack Obama was term-limited and nominated Judge Merrick Garland as his successor, but the Senate Republican majority chose to take no action on the nomination. After Republican President Donald Trump was inaugurated in 2017 and GOP senators held their majority, Trump nominated and the Senate confirmed Justice Neil Gorsuch in April on a 54-45 vote.
• 1956: The retirement of Justice Sherman Minton in October created a vacancy 22 days before the election. President Dwight Eisenhower was running for re-election as a Republican and appointed William Brennan as his successor the next day using a recess appointment because the Senate was adjourned at the time. After Eisenhower’s victory, the Democratic Senate confirmed Brennan on a voice vote in March 1957.
• 1888: The death of Chief Justice Morrison Waite in March created a vacancy 228 days prior to the election. President Grover Cleveland, who was running for re-election as a Democrat, nominated Melville Fuller to fill the seat. The Senate confirmed Fuller on a bipartisan 41-20 vote in July 1888.  
• 1852: The death of Justice John McKinley in July created a vacancy 106 days prior to the presidential election. President Millard Fillmore, who had already lost the Whig party’s presidential nomination and wasn’t seeking re-election, nominated Edward Bradford to fill the vacancy, but the Democratic Senate declined to consider his nomination or those of two others put forward by Fillmore.
• 1844: The death of Justice Henry Baldwin in April created a vacancy 194 days prior to the presidential election. President James Tyler, who was running for re-election, nominated Edward King to fill the vacancy after making two other unsuccessful nominations. The Senate voted 29-18 to postpone the nomination and it was ultimately withdrawn after Tyler ended his re-election campaign and James Polk won the election.
• 1828: The death of Justice Robert Trimble in August created a vacancy 67 days prior to the presidential election. President John Quincy Adams nominated John Crittenden two weeks after he lost his re-election bid to Andrew Jackson. The Senate had a majority of pro-Jacksonian senators, and voted 23-17 to table Crittenden’s nomination.

— Eric Revell

(Photo Credit: iStock.com / CHPD)