They Really Love Gridlock, Don’t They?

Jim Burroway

February 14th, 2016

The Family “Research” Council’s Tony Perkins has joined Senate Majority Leader Mitch McConnel, and GOP presidential candidates Sens. Ted Cruz and Marco Rubio in demanding that Justice Scalia’s seat remain vacant until after the next President is sworn in. According to Perkins:

“The Supreme Court has now become the centerpiece in this presidential election. There has not been an election-year nomination in generations and the Senate must not break that trend now. With the election only 269 days away, the people should decide what president should fill this seat,” concluded Perkins.

You can pretty much count on Perkins being wrong whenever he opens his mouth. Within the current generation — well, the current generation of still-living Supreme Court Justices anyway, there is one Justice who was nominated during an election year. That would be Justice Anthony Kennedy, was nominated by Reagan on November 30, 1987. Cruz counters out that, technically speaking it wasn’t yet an election year and this is supposed to matter somehow. But it seems to me that what really ought to matter is that the Dem0cratic-led Senate had no problem with the idea of confirming him on February 18, 1988, which is about the same spot on the Election year calendar as where we are today. You see, that was back in the olden days when having a split government between the White House and the Senate (where Democrats enjoyed a 55-45 majority) was not seen as an excuse for not getting anything done.

Appointing Supreme Court Justices has often been brought with political calculations. That’s why justices who are considering stepping down are nearly always careful to do so in a non-election year. Which is why it’s true that it’s not common to name a new Justice to the bench during an election year. And yet there is a pretty good history of Supreme Court Justices inconveniently dying in office and their replacements getting named and confirmed throughout the history of the Republic. It’s odd seeing a political party that prides itself on constitutional and historical precedence, not to mention the actions of our much-invoked Founding Fathers, ignore that history.

Besides Kennedy, I’ve found these other examples of Supreme Court nominees ascending to the bench during an election year, even sometimes in during extremely contentious election years. There have even been a few notable lame duck appointments in our history:

William Brennan Jr., was named to the Court through a recess appointment by Dwight D. Eisenhower in 1956, just three weeks before the presidential election. Brennan was selected to succeed Sherman Minton, who resigned following a period of declining health and tired from trying to place peacemaker through the many violent personal feuds among his colleagues. Political calculations played an important role in Brennan’s appointment. Eisenhower’s advisers thought that naming a Catholic Democrat to the bench would help solidify Eisenhower’s support in the Northeast. (They needn’t have worried; Eisenhower defeated Adlai Stevenson in a landslide.) When the Senate returned and took up Brennan’s nomination, he faced fierce opposition from the National Liberal League who thought he’d be too beholden to the Vatican, and from Sen. Joseph McCarthy who objected to Brennan’s characterization of McCarthy’s Red Scare as “witch hunts.” McCarthy wound up being the only Senator to vote against Brennan’s confirmation.

Frank Murphy, Attorney General in the Franklin D. Roosevelt administration, was nominated on January 4, 1940 to fill the seat vacated by the death of Pierce Butler. He was confirmed by the Senate on January 16.

Benjamin N. Cardozo, a well-know Democrat, was appointed by Republican President Herbert Hoover in February 1932 to succeed the legendary Oliver Wendell Holmes. At ninety and in ill health, Holmes had stepped down at the urging of his colleagues.  The New York Times hailed Cardozo’s nomination: “Seldom, if ever, in the history of the Court has an appointment been so universally commended.” The still-Republican-controlled Senate confirmed Cardozo by a unanimous voice vote. The following November, Hoover and more than a hundred Republican Representatives were wiped out in Franklin D. Roosevelt’s Democratic landslide.

John Hessin Clarke was nominated by Woodrow Wilson on July 14, 1916, just a few weeks after Clarks Evans Hughes resigned as Associate Justice to run against Wilson in 1916 that year as the Republican Presidential nominee. (Hughes would later be named Chief Justice by Herbert Hoover in 1930.) Clarke was confirmed unanimously on July 24.

Louis Brandeis was nominated by Wilson on January 29, 1916 following the death of Joseph Rucker Lamar four weeks earlier. Brandeis, an Republican economic ally of the Democrat Wilson’s anti-monopoly policies, was so controversial that the Senate Judiciary Committee held a public hearing on the nomination for the first time in history. This resulted in an unprecedented four months gap between Wilson’s nomination and the Senate’s final confirmation.

Mahlon Pitney, a prominent New Jersey Democrat, was nominated by the Republican President William Howard Taft on March 13, 1912 to fill the seat vacated by Marshall Harlan’s death the previous October. Taft was defeated in his bid for re-election the following November.

Rufus Wheeler Peckham ascended to the bench on January 1896 after having been nominated by President Grover Cleveland the month before. Peckham was selected to fill the seat vacated by Howell Edmunds Jackson’s death. All this happened during Cleveland’s second term of office, which, if you will remember, was not consecutive with his first. Benjamin Harrison had defeated Cleveland in 1888, only to lose to Cleveland four years later. By the way, Peckham was the last Supreme Court Justice nominated by a Democratic president and confirmed by a Republican-controlled Senate, although until this year this appears more a product of circumstances than thickheaded GOP posturing. And also by the way, two years earlier, Cleveland nominated Peckham’s brother, Wheeler Hazard Peckham, for a different seat on the Supreme Court. That nomination was blocked in the Senate.

Howell Edmunds Jackson was nominated by Benjamin Harrison on February 2, 1893, nearly three months after Harrison lost his bid for re-election the previous November. (This was when presidential terms began on March 4th. The twentieth amendment changed the start date to January 20 beginning in 1937.)

George Shiras, Jr. was also nominated by Harrison, on July 19, 1892, nearly six months after Justice Joseph P. Bradley’s death, and just a little more than three months before the election that would turn the unpopular Harrison out of office. As unpopular as Harrison had become by 1892 — his economic policies would eventually lead to the Panic of 1893 — he somehow managed to place two Justices on the Supreme Court both during and after his failed bid for re-election.

Melville Fuller was nominated as Chief Justice by Cleveland on April 30, 1888, after the death of Morrison Waite a month earlier. Fuller’s nomination came just a little more than six months before Cleveland lost his bid for re-election to Harrison. Which makes Cleveland the only president to have successfully nominated a Supreme Court justice during two different presidential election years which ended his term in office.

William B. Woods was named to the high court by Rutherford B. Hayes on December 21, 1880, just a few months before Hayes was set to leave office. Hayes, a Republican, was succeeded by another Republican, the ill-fated James Garfield. Associate Justice William Strong waited until after the election to tender his resignation and make way for Woods. As well he should.  Strong was one of five Supreme Court Justices who sat on the Electoral Commission whose sorry task it was to sort out the disputed 1876 Presidential election. Strong and his fellow Republican commission members awarded every disputed vote to “His Fraudulency” Rutherford B. Hayes.

Samuel Nelson was nominated by the Whig President John Tyler in February 1845 following the death of Smith Thompson in December, and just one month before the highly unpopular Tyler was to leave office. Tyler had been so hated that he had to fend of an impeachment attempt by his own party in the House of Representatives. Thanks to his enmity with his fellow Whigs and the lack of support among Democrats, four of his own Cabinet nominations were rejected by the Senate, the most of any president before or since. Tyler also had a difficult time getting a replacement for Thompson through the Senate. Before he hit upon Nelson, Tyler had nominated John Canfield Spencer, and Ruben Walworth. With Nelson, the third time was the charm, and despite the Senate’s animosity toward Tyler nominations, he still managed to get Nelson seated on the high court just before leaving office. (The Whigs themselves would go extinct just nine years later.)

Peter Vivian Daniel was a lame-duck nomination by Martin Van Buren on February 26, 1841, to fill the seat vacated by the death of Philip Pendleton Barbour just one day earlier. Daniel was confirmed two days before the Democrat Van Buren was succeeded by his already-controversial Whig successor, John Tyler.

John Catron was nominated by Andrew Jackson on March 3, 1837, on Andrew Jackson’s last full day as President. This case is unusual because Jackson was given the opportunity to name two new justices after Congress expanded the U.S. Supreme Court from seven to nine members. Catron was the only nominee to accept the nomination, leaving the second seat to be filled by Jackson’s successor, Martin Van Buren.  The new Senate of the next Congress confirmed Catron’s appointment after Jackson left office. Catron would go on to side with the majority in the Dred Scott decision.

William Johnson was nominated by Thomas Jefferson on March 22, 1804, following the resignation of Alfred Moore the previous January. He was confirmed by the Senate on May 7.

John Marshall, perhaps the most famous and influential of all of the Chief Justices, was nominated to the post by John Adams on January 20, 1801 after the death of Oliver Ellsworth. Adams and his Federalists had lost badly during the 1800 election, and they were about to lose both the Executive Mansion and Congress to Jefferson and the Democratic-Republicans. Adams and the Federalists not only pushed through Marshall’s nomination, but they also passed what became derisively known as the Midnight Judges Act, which reduced the size of the Supreme Court from six members to five (the reduction would occur upon the next vacancy), which meant that it would take two more vacancies before Jefferson could make an appointment. The Judiciary Act of 1801 got its more common name when it was alleged that Adams stayed up until midnight on his last day in office packing the Federal judiciary with his chosen appointments. The controversial law was repealed in 1802, and Jefferson was able to make three appointments to the bench during his eight years in office. Meanwhile, one of those last-minute Adams appointments, William Marbury, went to court to try to force the Jefferson Administration to honor Adams’s commission. That case led to the landmark Marbury v. Madison decision which declared an earlier law that Marbury cited in his attempt to force the commission was itself unconstitutional, thus establishing the doctrine of Judicial Review for all of the courts to come.

Alfred Moore was also nominated by John Adams in April of 1800, seven months before the election that would see the Federalists tossed out of office. Moore was nominated some six months after James Iredell died.

Oliver Ellsworth was nominated by George Washington to be the nation’s third Chief Justice on March 3, 1796, eight months before the election that would make John Adams the nation’s second President. Ellsworth’s nomination closed a contentious chapter in the early history of the Court. In 1795, Washington named John Rutledge as Chief Justice as a recess appointment while the Senate was not in session. Rutledge became Chief Justice on June 30 and on July 16, he have a controversial speech lambasting the Jay Treaty with Great Britain, saying that he’d rather the President would die than sign “that puerile instrument.” That speech cost him support in the Senate, which ratified the treaty with the constitutionally-mandated two-thirds support. By the time the Senate took up Rutledge’s nomination, his support had evaporated and the Senate rejected his appointment.

Samuel Chase was nominated by George Washington on January 26, 1796 to fill the seat made vacant by John Blair’s resignation.

Against that history, I’ve only found six cases where a Supreme Court Justice died or left office and his seat went unfilled until after the next Presidential election:

Earl Warren, the legendary chief justice who will forever be remembered for steering some of the nation’s most important civil rights decisions through the Court, announced his retirement in June 1968. Lyndon Johnson nominated Abe Fortas, already an Associate Justice on the Supreme Court, for the top spot. But a coalition of conservative Republicans and Dixiecrats, led by Strom Thurmund rebelled against the Fortas nomination and its likely extension of the Warren Court’s pro-civil rights legacy. Fortas’s case wasn’t helped when it was learned that his moonlighting teaching job came with a lucrative income secretly provided by a group of Wall Street investors. With a full-on filibuster blocking a vote on Fortas’s confirmation, Johnson was forced to withdraw the nomination. Fortas resigned in 1969 as his ethics problems continued to grow. The Supreme Court plodded along without a Chief Justice until Richard Nixon nominated Warren Burger the following June.

Roger B. Taney, the nation’s fifth Chief Justice, died on October 12, 1864, just three weeks before Abraham Lincoln’s successful re-election bid, although by then his soon-to-be landslide re-election was no longer in doubt. Perhaps that explains why Lincoln wasn’t in any hurry to fill the post. Lincoln selected his former Secretary of the Treasurer and longtime frenemy Salmon P. Chase to succeed Taney on December 6, 1864. The Senate confirmed him that very same day.

Peter Vivian Daniel, who himself ascended to the bench as a lame-duck appointment in 1941, died n May 31, 1860 during James Buchanan’s last year in office. Buchanan didn’t seem to be in much of a hurry to replace Daniel. Neither was Buchanan’s successor, Abraham Lincoln, who waited until 1862 to name Samuel Freeman Miller to the bench.

John McKinley died on July 19, 1852 as Millard Fillmore was in the middle of his last year in office. Fillmore, the last Whig President, tried three times to fill the vacancy. Three times Fillmore’s nominations were rejected by the Democratic-controlled Senate. Fillmore’s successor, Franklin Pierce, took the rare step of consulting with a group of sitting Supreme Court justices to fill McKinley’s seat. He chose Alabama lawyer John A. Campbell in an attempt to appease southern Senators. The Senate unanimously approved Campbell’s appointment, and he would later form part of the majority for the infamous Dred Scott decision. Meanwhile, the Whigs never recovered form Fillmore’s presidency. The party outlasted Fillmore’s administration by a mere two years.

Henry Baldwin died in 1844 during Tyler’s last year in office. Tyler made two tries to replace him, nominating Edward King, and then John M. Read. The Senate refused both appointments, and the seat remained vacant until James Polk became president. Polk tried two more times to fill the seat, naming James Buchanan (the future president who refused the appointment) and George Washington Woodward, who the Senate refused to confirm. Finally Polk nominated Richard Cooper Grier on August 3, 1846 and the Senate unanimously approved his nomination the next day.

Robert Trimble died on August 25, 1828 during John Quincy Adam’s last year in office. Adams, a Democratic-Republican, nominated John J. Crittenden to fill the spot, but Andrew Jackson’s Democratic supporters in the Senate (who that year had split off from the Democratic-Republican) refused to confirm him. After Jackson became president the following March, he named John McLean to the position.

Republicans are now trying to say that there is a “tradition” of waiting until the next president is elected before filling a Supreme Court vacancy during the president’s last year in office. But it turns out that there is precious little evidence of any such “tradition.” The actual history of the Republic says otherwise, although there are exceptions. And when you look at those exceptions, they are just about always during periods of political crises. Johnson was so badly despised by members of his own party that he had already withdrawn from the primary. Buchanan, well he more or less sit on his hands as a civil war loomed. Fillmore was so disastrous he broke his party for all time, completing a feat that his Whig predecessor, Tyler, very nearly accomplished eight years earlier. And John Quincy Adams had the misfortune of being president just as the anti-establishment Andrew Jackson began his scorched-earth path to the Executive Mansion. The Constitution tells us that the Senate has the obligation to consider any Supreme Court nominations sent its way, but history tells us that when the Senate is broken, it tends to stay broken, at least until the next election comes along and clears the air. Which means that the Republican-led gridlock in Congress now threatens to create a Republican-induced gridlock in the Supreme Court.  Yes, there’s precedent for that, but not a good one.


February 14th, 2016

William Brennan was named to the court in 1956.

Jim Burroway

February 14th, 2016

Thanks, Soren. I fixed the typo.

Ben in oakland

February 14th, 2016

Contrary to these so called republican so called thinkers– and for that matter, contrary to The Scaley One himself– the people are not the law of the land. the Constitution is, though its authority derives from the people, the people do not get to select Supreme Court justices.cthey select the people ho select the justices.

They do love gridlock. I hope that the Dems are smart enough to hammer on this failure to govern.


February 15th, 2016

It’s all political rhetoric. If it was a Republican president whose term was expiring, the Senate would be arguing that it was a disservice to the nation to leave a Supreme Court seat empty for a year.

Of course, they’re the ones who have stalled on Federal court nominations for the last eight years. They are happy to hold the justice system hostage for political ends.

Eric Payne

February 15th, 2016

Interesting factoid of one of the Presidents listed, above, who made a Supreme Court appointment in their final year in office:

William Howard Taft was defeated in his re-election bid primarily because the Republican Party of 1912 was torn between the foreign policy of Taft and that of his predecessor, Franklin Roosevelt, who ran for the office as an “off party” third party candidate.

In June, 1921, Taft was appointed Chief Justice of the Supreme Court of the United States; his appointment and confirmation happening on the same day.

Taft served as the 10th Chief Justice, and held the seat for 9 years. He retired from the bench, and died just weeks later, in March, 1930. Taft died on the very same day an associate Justice on SCOTUS, Edward Terry Sanford, died.

Eric Payne

February 15th, 2016

oooops. THEODORE Roosevelt, not Franklin. I need some coffee.


February 15th, 2016

If it’s coming from a Republican, and even more so, a “conservative” Republican, and especially a right-wing “religious” leader, if it’s not a lie, it’s a distortion or a misrepresentation. Tony Perkins is only the most shameless liar in the bunch.

Obama will nominate a successor, the Republicans in the Senate will ignore the nomination, and they’ll get away with it because the Democrats won’t go after the jugular on it. And I hope I’m wrong, but it’s problematic as to whether the Republicans are going to feel any pressure to confirm a nominee: they only pressure they feel is from their base, and then only if it’s from the right, and their base hates that black man in the White House because he’s that black man in the White House.

Steve McCuen

February 15th, 2016

Great research! Thank you for sharing it with us!

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