Yesterday, President Obama nominated Merrick B. Garland to the Supreme Court of the United States to fill the vacancy left on the Court in the wake of the death of Justice Antonin Scalia.
Judge Garland sits on the United States Court of Appeals for the District of Columbia Circuit. If confirmed by the Senate, Judge Garland will become the 113th Justice to serve on the country’s high court. In light of this nomination, questions have arisen about whether there is precedent for not nominating and confirming Supreme Court Justices during a presidential election year. A look at the historical record reveals there is neither a standard practice of a president failing to nominate, nor of the Senate failing to confirm, a nominee in a presidential election year. Since 1900 there have been several nominations and confirmations of Supreme Court Justices in presidential election years.
- On March 13, 1912, President William Taft, a Republican, nominated Mahlon Pitney to succeed Justice John Marshall Harlan, who died in October of 1911. The Republican-controlled Senate confirmed Justice Pitney five days later on March 18, 1912.
- On January 28, 1916, President Woodrow Wilson, a Democrat, nominated Louis Brandeis to succeed Justice Joseph Rucker Lamar, who died on January 2, 1916. The Democratic-controlled Senate confirmed Justice Brandeis on June 1, 1916.
- Only a month later, on July 14, 1916, President Woodrow Wilson nominated John Clarke to replace Justice Charles Evans Hughes, who resigned from the Court on June 10, 1916. Justice Clarke was confirmed by the Senate on July 24, 1916.
- On February 15, 1932, President Herbert Hoover, a Republican, nominated Benjamin Cardozo to succeed Justice Oliver Wendell Holmes, who retired from the Court on January 12, 1932. A Republican-controlled Senate confirmed Justice Cardozo on February 24, 1932.
- On January 4, 1940, President Franklin Roosevelt, a Democrat, nominated Frank Murphy to succeed Justice Pierce Butler, who died on November 16, 1939. A Democratic-controlled Senate confirmed Justice Murphy on January 16, 1940.
- On November 30, 1987, President Ronald Reagan, a Republican, nominated Justice Anthony Kennedy to succeed Justice Louis Powell, who retired on June 26, 1987. A Democratic-controlled Senate confirmed Justice Kennedy on February 3, 1988, by a vote of ninety-seven to zero.
There have only been two instances since 1900 where a sitting president could not nominate and confirm a Supreme Court Justice during an election year– neither instance, however, reflects a precedent of keeping a seat on the high court open until after the election.
Justice Sherman Minton retired on October 15, 1956. Then sitting President Dwight Eisenhower made a recess appointment of Justice William J. Brennan to the Court since the Senate had already adjourned for the year. Justice Brennan was formally nominated and confirmed by the Court in 1957.
In 1968, President Lyndon B. Johnson nominated Abe Fortas, who was already sitting as an Associate Justice, to succeed then Chief Justice Earl Warren. Justice Fortas nomination was subjected to bi-partisan filibuster, mainly because of ethical questions surrounding the Associate Justice. However, President Johnson’s failure to nominate and confirm Justice Fortas to Chief Justice did not leave the Court with a vacancy because Chief Justice Warren Chief Justice Earl Warren remained on the bench.
Thus, if history holds true, Judge Garland will become the 113th Justice to serve on the Supreme Court of the United States, election year notwithstanding.