Memorandum on Supreme Court Vacancies and Confirmations During Presidential Election Years

18 Pages Posted: 22 Feb 2016

Date Written: February 20, 2016

Abstract

The author summarizes historical examples of Supreme Court vacancies during presidential election years (or the year prior), and the outcomes of presidential nominations to those Supreme Court vacancies. The facts are quite striking, and refute widespread arguments by Republican politicians that President Obama should not nominate, and the Senate should not approve or even consider (until after Obama's term concludes), any replacement for Justice Antonin Scalia, who died on February 13, 2016.

There is not a single case in American history in which an incumbent president chose not to make a Supreme Court nomination in such circumstances, even for vacancies occurring extremely late during the president's term. Of the total of 26 such vacancies considered, the Senate gave full consideration to nominees in at least 23 cases (88%), and 22 (85%) of the vacancies were successfully filled by the incumbent president.

Two of the 26 cases, however, when an incumbent president made a nomination after being reelected, are best excluded as irrelevant. Of the remaining 24 relevant vacancies -- 15 occurring during the election year (or even in the early part of the year following) and 9 occurring during the year before the election year but persisting into the election year -- 21 (87.5%) received Senate consideration and 20 (83%) were successful. Further excluding seven vacancies which occurred after June during the election year (thus much closer to the election and allowing much less time to consider a nominee), 15 of the 17 remaining vacancies (88%) were successfully filled by the incumbent president, and all but one case (94%) received full Senate consideration.

In the one solitary case (April 1844) of an early-election-year vacancy that did not receive a full Senate vote, there were actually two vacancies pending that year, and that lame-duck president did obtain two final Senate votes on, and eventually succeeded in filling, the other vacancy, which occurred in December 1843, right before that election year.

The most highly relevant comparison would be with the eight vacancies that actually occurred during a presidential election year, but no later than June. The president, again, made a nomination in all eight of those cases, at least seven of eight (87.5%) received full Senate consideration, and six of eight (75%) were successful.

Keywords: Supreme Court, judicial nominations, judicial vacancies, lame-duck presidents

JEL Classification: K19, K40

Suggested Citation

Wildenthal, Bryan H., Memorandum on Supreme Court Vacancies and Confirmations During Presidential Election Years (February 20, 2016). Thomas Jefferson School of Law Research Paper No. 2735256. Available at SSRN: https://ssrn.com/abstract=2735256 or http://dx.doi.org/10.2139/ssrn.2735256

Bryan H. Wildenthal (Contact Author)

Thomas Jefferson School of Law ( email )

701 B Street
Suite 110
San Diego, CA 92101
United States
619-961-4342 (Phone)

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