In 2016, I reviewed every opening in U.S. Supreme Court history because I had a sneaking suspicion that Mitch McConnell was full of shit. My research confirmed my suspicion. Out of the roughly 100 vacancies that occurred since President Washington appointed the first Supreme Court, thirteen vacancies had occurred within a year of a presidential election. Most were filled without controversy. A few were rejected (the Senate absolutely despised John Tyler, for instance). There has never been a rule that the Senate won’t consider nominations to fill vacancies close to an election, until McConnell invented it.
Now, the Bullshit Brigade (looking at you, Mitt) has a new Rule That Never Was: “Senates with a majority in the party opposite to the President don’t confirm during election years.” Now, you know and I know that this is a cynical fig leaf that no one who pays attention really believes. But not everyone pays attention. So having the facts may be helpful when you encounter folk who don’t live and breathe this stuff. Below the fold is the reality.
First, there are at most five times where
1 a president of one party
2 has a vacancy appear on the Supreme Court
3 during an election year
4 while the Senate is held by another party.
Two of those examples occurred at the same time, during the administration of the hapless John Tyler. See below for my discussion of that case, which arguably doesn’t even count because Tyler was associated with the same party that controlled the Senate at the time.
Eisenhower
The most recent time this happened was in 1956. President Eisenhower (a Republican) faced a vacancy when Justice Minton announced in September his retirement effective that October. Ike first “recess appointed” William Brennan. After the election he nominated Brennan formally and the Democratic-controlled Senate confirmed in March 1957. There was no controversy regarding Brennan’s appointment just a month before the election.
Cleveland
The previous case was in 1888! Let’s see what happened then.
Morrison Waite was the 7th Chief Justice of the United States. He died in office on March 23, 1888. President Grover Cleveland (a Democrat) put the name of Melville Fuller before the Senate, which was dominated by Republicans. Many Republicans fought his nomination, but in the end the Senate considered his nomination (something McConnell says doesn’t happen) and confirmed with several Republicans joining the minority Democrats (something McConnell feared would happen with Merrick Garland). And this was for the appointment of the Chief!
And that is every example since the Civil War: McConnell’s score since then is 0-2.
I will briefly note that some have pointed to President Reagan’s appointment of Justice Kennedy, confirmed during an election year by a Senate with a Democratic majority. I don’t include this example because in 2016 McConnell said his invented rule applied when the vacancy occurs in an election year. Justice Kennedy replaced Justice Powell after the Senate rejected Robert Bork. But when Lindsay Graham or Mitt Romney say that a Senate doesn’t confirm nominations by a Presidency in the opposition during an election year, it is entirely fair to tell them that the Democrats did it in 1988.
Fillmore
Moving further along in the Wayback Machine, you hop over to the term of Millard Fillmore. Justice John McKinley died in office on July 9, 1852, when secession was in the air. Fillmore was a Whig who ascended to the Presidency upon the death of the popular Zachary Taylor. The Whigs had nominated Winfield Scott as their nominee, so Fillmore was already a lame duck when McKinley died. The Senate was controlled by Democrats and the Whigs were on the verge of dissolution over the question of slavery. I point out these facts to indicate just how extraordinary this time was.
Fillmore nominated several candidates to fill McKinley’s seat; none were successful. If McConnell wants to point to precedent for his snubbing of President Obama and Merrick Garland, this is the closest he can get. Even here, there was no claim to a principle of rejecting opposite-party President’s election-year nominations to the Supreme Court. It just didn’t confirm his candidates.
Tyler (no Tippecanoe)
The next examples (going backwards) are arguably the two open seats that John Tyler tried to fill. I say “arguably” because Tyler had been a Whig but was thrown out of the party that then dominated the Senate. So he was an ex-Whig, but had not joined another party. Everyone hated Tyler, who was known as “His Accidency.” He was the first Vice-President to ascend to the Presidency due to the death of the incumbent.
Justice Smith Thompson died December 18, 1843 and Justice Henry Baldwin died April 21, 1844. Tyler nominated several potential successors for both vacancies. The Senate finally confirmed Samuel Nelson to fill the Thompson seat in February 1845, ten days after his nomination and when both Tyler and the Whig majority were lame ducks.
JQ Adams
You have to go back to the John Quincy Adams presidency to reach the first example in U.S. history of a vacancy on the Supreme Court occurring when the President and the Senate Majority are of different parties. Justice Robert Trimble died August 25, 1828. Adams nominated John Crittenden, but not until December 17, 1828, after the election of 1828! Adams was a lame duck by then. The Senate postponed the nomination which effectively killed it. But as Adams did not nominate a candidate before the election, this provides no support to McConnell’s ahistoric nonsense.
That’s it. There are two (or three, including Justice Kennedy) examples proving McConnell (and Graham, and Romney, and Grassley and all the rest) wrong. There are no examples supporting a “precedent” for McConnell’s perfidy. But you already knew that. There was never any doubt that McConnell was just making stuff up. McConnell knew it, you knew it, I knew it, the press knew it even as it gave oxygen to the Republican’s BS.
Now, the disclaimers. I am not an historian (I am not even a historian). I am a layperson with a more-than-passing interest in the Presidency. If you find errors, omissions or just disagree with anything written, feel free to let me know.