Confirming a Justice in an Election Year

Shortly after the death of Justice Antonin Scalia, Republican Senators immediately announced that they would not approve any candidate for the Court nominated by President Obama. They justified this opposition by claiming that a "tradition" had developed against any such confirmation vote in an election year. Senator Chuck Grassley stated : "The fact of the matter is that it's been standard practice over the last 80 years to not confirm Supreme Court nominees during a presidential election year." Senator Ted Cruz agreed: "It has been 80 years since a Supreme Court vacancy was nominated and confirmed in an election year. There is a long tradition that you don't do this in an election year."

Both statements deserve a "pants on fire" rating on the truth scale. The fact is that even in the 80 year period selected by the Senators, there were two nominations made during a Presidential election year and both were confirmed. Justice Frank Murphy was nominated by President Franklin D. Roosevelt and confirmed by the Senate in 1940, an election year, and Justice William Brennan was given a recess appointment by President Eisenhower in 1956 and confirmed the following year. Justice Anthony Kennedy was nominated in 1987, but unanimously confirmed by the Senate in 1988, an election year.

If one goes back 100 years, rather than the unusual 80-year period selected by the Senators, any "tradition" truly disappears. In 1916, a Presidential election year, President Woodrow Wilson nominated two candidates, John Clarke and Louis Brandeis, and both were confirmed. And in 1932, President Hoover nominated Benjamin Cardozo to replace Oliver Wendell Homes Jr., and he was also confirmed.

If one goes back still further, to the origins of the Court, in total, twelve Justices were nominated in an election year and then confirmed by the Senate in that year. (In one of those cases, President Lincoln nominated Salmon Portland Chase to be Chief Justice in December 1864, after the election). In an additional three cases, nominations were made in the year before a Presidential election, but confirmed in the election year, as in Anthony Kennedy's case.

To establish a tradition or a "standard practice," the Senators should show how often a candidate was nominated by a President in an election year, but rejected by the Senate. How often did that happen in the last 100 or 80 years? And the answer is only once, in 1968 when President Lyndon Johnson tried to promote Justice Abe Fortas to replace Earl Warren as Chief Justice. (Warren announced he would resign when a replacement was confirmed.) Fortas was not rejected by the Senate, but by a 45-43 vote, the Senate refused to cut off debate on his nomination, upholding a filibuster, largely because of some questionable financial deals made while Fortas was sitting as Justice.

The only other Senate rejection of a candidate for the Court in an election year occurred in 1844 when a candidate nominated by President John Tyler (John Spencer) was rejected by the Senate. So the true tradition is that by a 12 to 2 margin, the Senate has accepted and confirmed nominations to the Court made in a Presidential election year.

So what is happening now? Why has every Supreme Court nomination become such a political tempest? Observers go back to the Robert Bork nomination in 1987, when this ultra-conservative candidate was rejected by the Senate in a 58-42 vote, after Democratic Senators mounted a highly public campaign against the nomination. Many conservatives were angered by this rejection and promised to turn the tables and reject any liberal candidate put up by a Democratic President. But Ruth Bader Ginsburg, a former general counsel for the American Civil Liberties Union and the chief advocate for woman's equality under the law, was nominated by President Clinton, confirmed by a 96-3 vote in 1993.

Nominations to the Court were rarely the basis for political turmoil. Of the 112 Justices confirmed by the Senate, 68 were by voice votes with no objections noted in the record. In our time, Justices John Paul Stevens, Sandra Day O'Connor, Antonin Scalia and Anthony Kennedy were approved unanimously by the Senate, and only one Senator voted against the nomination of Lewis Powell in 1971. There has been a few periods of political turmoil surrounding a nomination, as shown by the fights over Supreme Court nominees after the Civil War (many of President Grant's nominees were rejected) as well as in the Progressive era in the early 20th Century. The Senate rejected President Franklin Roosevelt's effort to pack the Court in the 1930's after the conservatives on the Court struck down many New Deal legislative measures. But these were isolated incidents.

In the last twenty years, times have changed. Over thirty Republican Senators voted against the nominations of Sonia Sotomayor and Elena Kagan, even though they were highly qualified candidates. More and more political issues have come before the Court, requiring champions on both sides to support candidates that favor their positions. The Court has entered the political arena, issuing decisions on campaign expenditures and contributions, public financing of candidates, reapportionment, redistricting, voting rights, even deciding a Presidential election. Social issues such as abortion, gun rights, gay marriage, which important parts of the electorate believe are central to their values, come before the courts. The Senate must support candidates that favor their beliefs and those of the electorate that they represent.

So do not expect any unanimous votes on any candidate regardless of who makes it. And expect more political misreading of history to support opponents of any nomination.

Leon Friedman is a Professor of Constitutional Law at the Maurice A. Deane College of Law at Hofstra University, He is the editor of and contributor to "The Justice of the Supreme Court: Their Lives and Major Opinions" published in 2013.