" />

The Moderate Voice

An Internet hub with domestic and international news, analysis, original reporting, and popular features from the left, center, indies, centrists, moderates, and right


You are here: Home / Law / How common is it for the Senate to sit on a Supreme Court nomination?

How common is it for the Senate to sit on a Supreme Court nomination?

by 29 Comments

UPDATE: 23 February / GOP leaders to President Obama: the Senate Judiciary Committee will sit on any nomination. In a unanimous show of obstruction, the Senate Judiciary Committee Republicans vowed that they will hold no confirmation hearings.

****

How common is it for the Senate to sit on a Supreme Court nomination? The short answer: not very.

Immediately after the news broke that Supreme Court Justice Antonin Scalia had died, Republican leadership indicated it did not welcome a Barack Obama nominee to replace him. Rather, they want to wait a year.

The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new President (emphasis added).”
Sen. Mitch McConnell (R-KY), Senate Majority Leader

Let’s ignore, for the moment, the fact that “the American people” elected President Obama. Twice.

Republicans insist that there is “ample precedent” for this “standard practice.”

But is there?

The short answer: no.

Supreme Court nominations, in summary

The Supreme Court was established in 1789. The Senate has considered 160 presidential nominations for Court justices, including nominations for chief justice.

The Senate has left one Supreme Court justice vacancy hanging in November of a presidential election year.

It was in the run-up to the Civil War (1842).

There have been five nominations to fill a Supreme Court justice vacancy during an election year since 1900. All were confirmed; only one occurred with a party split between the White House (Republican) and the Senate (Democrat).

Since 1900, there has been one nomination to Chief Justice during a presidential election year; it was withdrawn. And there has been one recess appointment. That justice was nominated and confirmed after the Senate resumed session the following year.

  1. 1912, President William Taft (R)
    On Feb 19, 1912, Taft nominated Mahlon Pitney to succeed John Marshall Harlan, who had died in October. Harlan was a noted civil rights advocate, opposing Plessy v. Ferguson, which upheld racial segregation.

    On March 13, 1912, the Senate confirmed (50-26) the nomination. In contrast with Harlan, Pitney was an economic conservative and hostile to organized labor. In Coppage v. Kansas, “Pitney struck down a Kansas statute that prohibited an employer from using force or coercion to prevent employees from joining a union.”

    In 62nd Congress, the Senate was controlled by the Republican party (48-43). Taft served as president for one term (1909–13) and was subsequently appointed to the Supreme Court (1921–30).
  2. 1916, President President Woodrow Wilson (D)
    On January 28, 1916, Wilson nominated Louis Brandeis to succeed Joseph Lamar, who had died in January. The Senate confirmed Brandeis (47-22) on June 1, 1916. “His commitments to justice, education, and Judaism were commemorated several years later in the founding of Brandeis University.” A Georgian, Lamar tended to side with the majority

    On Jul 14, 1916, Wilson nominated John Clarke, a progressive to succeed Charles E. Hughes. The Senate confirmed Clarke on a voice vote July 24, 1916. Hughes was a Teddy Roosevelt Republican who was an “advocate of regulation and authored decisions that weakened the legal foundations of laissez-faire capitalism.”

    In the 64th Congress, the Senate was controlled by the Democratic party (56-40). Wilson served as president for two terms (1913-1921). He did not run for a third term.
  3. 1932, President Herbert Hoover (R)
    On February 15, 1932, Hoover nominated Benjamin Cardozo to succeed Oliver Wendell Holmes, who had retired after 29 years. The Senate confirmed Cardozo on a voice vote February 24, 1932.

    In the 72nd Congress, the Senate was controlled by the Republican party (48-46-1). Hoover served as president for one term (1929-1933). He was defeated by Franklin Roosevelt.
  4. 1940, President Franklin Roosevelt (D)
    On January 4, 1940, Roosevelt nominated Frank Murphy to replace Pierce Butler, who had died in November. The Senate confirmed Murphy on a voice vote January 16, 1940.

    In the 76th Congress, the Senate was controlled by the Democratic party (68-23-4). Roosevelt served as president for four terms (1933-1945).
  5. 1956, President Dwight D. Eisenhower (R)
    On October 15, 1956, Sherman Minton retired; the Senate was adjourned. Rather than leave the seat vacant, Eisenhower made William J. Brennan a justice by making a a recess appointment. Subsequently, Eisenhower nominated Brennan on January 14, 1957. The Senate confirmed him on a voice vote March 19, 1957.

    In the 84th Congress, the Senate was split (47-47-2). Eisenhower served as president for two terms (1953-1961).
  6. 1968, President Lyndon B. Johnson (D)
    On June 26, 1968, Johnson nominated Abe Fortas to succeed Chief Justice Earl Warren. Johnson withdrew the nomination in light of ethical questions. Also, “Critics claimed” he was too close to the President, violating the separation of powers. Chief Justice Earl Warren remained on the bench; there was no vacancy.

    In the 90th Congress, the Senate was controlled by the Democratic party (64-35). Johnson served as president for one elected term (1963-1969). He did not run for a second term.
  7. 1988, President Ronald Reagan (R)
    On November 30, 1987, Reagan nominated Anthony Kennedy to succeed Louis Powell. The Senate confirmed Kennedy (97-0) on February 3, 1988.

    In the 100th Congress, the Senate was controlled by the Democratic party (55-45). Reagan served as president for two terms (1981-1988).

Prior to 1900, there were six (6) nominations to the Supreme Court during a presidential election year when you remove President John Tyler (1844) from the equation. All were confirmed.

Nine refusals to act

Of the total nominations, 124 were confirmed but seven declined to serve.

The Senate refused to act on a presidential nomination only nine (9) times. For the math inclined, that’s 6% of the nominations.

However, of those nine instances, three of the nominees were subsequently confirmed and one was rejected

That leaves five (5) absolute refusals to consider. That’s 3% of the nominations. And none of them are in the 20th century.

All data are from the U.S. Senate.

Five candidates for the Supreme Court for whom the U.S. Senate took no action

  1. June 17, 1844
    Reuben Walworth, nominated by President John Tyler
  2. February 7, 1845
    John Read, nominated by President John Tyler
  3. August 16, 1852 (election year)
    Edward Bradford, nominated by President Millard Fillmore
    Filled April 1853 by John Campbell, appointed by President Franklin Pierce
  4. February 14, 1853
    William Micou, nominated by President Millard Fillmore
  5. April 16, 1866
    Henry Stanbery, nominated by President Andrew Johnson (seat abolished, leaving no vacancy)

Notice the era? Mid-1800s, pre-Civil War.

Three candidates for the Supreme Court for whom the U.S. Senate initially took no action but confirmed on second nomination

  1. Stanley Matthews, nominated by President Rutherford Hayes
    No action on January 26, 1881
    Re-nominated by President James Garfield on Mar 14, 1881 and confirmed May 12, 1881
  2. Pierce Butler, nominated by President Warren Harding
    No action on November 21, 1922 nomination; this is after the election
    Re-nominated December 5, 1922, and confirmed December 21, 1922
  3. John Harlan, nominated by President Dwight Eisenhower (R)
    No action on November 9, 1954 nomination; recess appointment
    Re-nominated January 10, 1955, and confirmed March 16, 1955

One candidate was eventually rejected

  1. William Hornblower, nominated by President Grover Cleveland
    No action on September 19, 1893 nomination
    Re-nominated December 5, 1893, and rejected January 15, 1894

President Grover Cleveland subsequently nominated Wheeler Peckham, who was also rejected by the Senate. The President succeeded in filling the open seat with Edward White on February 19, 1894.

A version of this post appeared originally at WiredPen.

Update, 2:30 pm Sunday // The pre-1900 list of nominations contained years that were not presidential years and, thus, did not contain Tyler’s mess.

Update, 5:00 pm Sunday // Discovered that in the run-up to the Civil War, there was one November presidential election with a nominee left hanging by the Senate.