“The Constitution is very clear that we can’t walk away from a constitutional responsibility when it comes to a vacancy on the Supreme Court.”

— Sen. Richard J. Durbin (D-Ill.), floor remarks, March 3

“The Senate shall advise and consent by voting on that nominee. That is what the plain language of the Constitution requires.”

— Sen. Michael F. Bennet, (D-Colo.), March 2

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“The Senate has responsibility to give that nominee a fair consideration with a timely hearing and a timely vote. It was deeply troubling to me and the people that I work for in Wisconsin that the Republican majority would choose not to fulfill their constitutional duty.”

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–Sen. Tammy Baldwin (D-Wis.), March 14

The upcoming battle over President Obama’s nominee for the Supreme Court vacancy created by the death of Justice Antonin Scalia has both parties digging in their heels, with Republicans citing a vague precedent that nominations are not considered in an election year and Democrats claiming that Republicans have a “constitutional responsibility” to at least hold hearings and a vote on a nominee.

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We’ve previously looked at how, depending on the circumstances, Democrats and Republicans have flip-flopped on the question of nominations in an election year. We also examined the often-ignored case of William Brennan’s 1956 elevation during the court in an election year.

So let’s tackle this issue. Is there a precedent for the current Republican refusal to consider Obama’s nominee? (We are not trying to single out the lawmakers above, just showing a representative sample of the rhetoric.)

The Facts

One problem with studying this issue is that, because Supreme Court justices have lifetime tenure, there are relatively few examples. Over nearly 230 years, there have been only 124 Justices. Presidents have submitted 160 nominations, of whom 148 received action on the floor of the Senate, according to the Congressional Research Service.

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These are not huge numbers, though it does indicate that most nominees are considered by the Senate. But there are even fewer examples of vacancies taking place — and being considered — in a presidential election year. Even more unusual is an instance when the presidency is held by one party and Senate is held by an opposing party. (The one recent example, as we noted, is the case of Brennan, but even then, his confirmation hearings did not take place until after the election.)

Though the examples are few, they tend to support the right of Republicans to handle — or not handle —this nomination as they wish.

In August 1828, Justice Robert Trimble died just as President John Quincy Adams was battling a tough reelection campaign against Democrat Andrew Jackson. Adams ended up losing to Jackson, but in December nominated Kentucky lawyer John Crittenden to replace Trimble. (Recall that before passage of the 20th Amendment in 1933, the presidential inauguration did not take place until March.)

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Supporters of Jackson opposed this lame-duck nomination, leading to a debate of nine days on the floor of the Senate. Supporters of Adams’s maneuver argued that it was a duty of the president to fill vacant slots, even in the waning days of a presidency. They offered an amendment on the floor:

“That the duty of the Senate to confirm or reject the nominations of the President, is as imperative as his duty to nominate; that such has heretofore been the settled practice of the government; and that it is not now expedient or proper to alter it.”

But this amendment was rejected in a voice vote and then the Senate voted 23-17 to adopt an amendment saying “that it is not expedient to act upon the nomination of John I. Crittenden.” A few days after becoming president, Jackson nominated John McLean, the Postmaster General under Adams, to replace Trimble. (Jackson did this mainly to get McLean out of the Cabinet and to remove the possibility of him running for president, according to a study of the confirmation process.)

According to the Congressional Research Service, “By this action, the early Senate declined to endorse the principle that proper practice required it to consider and proceed to a final vote on every nomination.”

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Then there’s the case of Justice Henry Baldwin, who died in April 1844. That was also an election year, but the sitting president, John Tyler, was not running for reelection, having been expelled from the Whig Party during his presidency. So in effect, the Whig-controlled Senate was run by an opposition party.

Tyler made nine Supreme Court nominations during his presidency, but only one was approved. He made three nominations to fill Baldwin’s seat, all of which were rejected by the Senate until the new president, James Polk, took office. Polk was a Democrat, and even his first choice for the seat was rejected by the still-majority Whigs.

During the 1852 campaign between Democrat Franklin Pierce and Whig Winfield Scott, Justice John McKinley died in July. President Millard Fillmore, a Whig who was not running for reelection, nominated three candidates — one in August, one in January and one in February. The Democratic-controlled Senate took no action on two candidates and the third withdrew after the Senate postponed a vote until after inauguration. One of Fillmore’s nominations was never even considered by the Senate, while the other was simply tabled.

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Pierce thus was given the Supreme Court nomination once he became president. (His nominee was confirmed one day after the nomination was submitted to the Senate.)

We realize these are all very old examples, back before there even was a Republican Party. And there is always an exception to the rule. In 1888, as Democrat Grover Cleveland sought a second term, he nominated Melville Fuller to be chief justice after the death of Morrison Waite. The Republican-controlled Senate was unenthusiastic, but Fuller was finally confirmed 41-20 after a delay. (Cleveland lost the election to Benjamin Harrison, though he had won the popular vote, and then won a rematch in 1892.)

In 1916 and 1932, election-year court vacancies were quickly filled by the Senate, but both occurred when the presidency and the Senate were controlled by the same party. The 1916 situation was unusual because the departing Supreme Court justice, Charles Evans Hughes, resigned after accepting the Republican nomination to challenge President Woodrow Wilson.

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The most recent and perhaps relevant example is Lyndon B. Johnson’s 1968 nomination of Abe Fortas, at the time an associate justice, to be chief justice. Earl Warren in June had announced he would retire and wanted to make sure Johnson had a chance to nominate his replacement.

Johnson at the time was a lame duck, having decided not seek reelection. While Democrats controlled the Senate, southern Democrats were angry at the Warren Court’s record on jurisprudence — and the Republican presidential nominee, Richard Nixon, had pledged to nominate a southerner as his first Supreme Court pick.

Nineteen Senators, in fact, declared that they would refuse to accept any nomination by Johnson because he was a lame duck. The Fortas nomination eventually ran aground over ethics issues and his close relationship with Johnson, and he eventually withdrew after his nomination failed a cloture vote.

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In effect, the 19 senators refusing to consider any Johnson nominee (mostly southern Democrats) created a working opposition majority with Republicans. Thus lawmakers were able to preserve the vacancy for the next president – who nominated a conservative, Warren Burger, as chief justice.

(Note: Some readers have asked why I did not include Anthony Kennedy, who was confirmed on Feb. 3, 1988, an election year, by a Democratic-controlled Senate after being nominated by a Republican president. That’s because he was filling a vacancy that opened up on June 26, 1987, well before the election year. Kennedy was the third nominee for the position.)

The Pinocchio Test

As you can see, there is no recent parallel to the current situation: a president filling a sudden vacancy on the court in an election year when the Senate is controlled by the opposition party, particularly when the vacancy occurred with nearly a year left in the presidential term.

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But it is also clear that politics has always played a role — and the Senate has set the rules to act as it wants. Nearly 200 years ago, the Senate made it clear that it was not required to act on a Supreme Court nomination. In periods of divided government, especially with elections looming, the Senate has chosen not to act — or to create circumstances under which the president’s nominee either withdrew or was not considered. Indeed, the patterns don’t suggest the Senate used procedures out of constitutional duty, out of deference for what the Constitution says or what previous Senates have done. Instead they used procedures based on the political circumstances of each confirmation.

It’s matter of opinion whether a refusal to consider a nominee is a dereliction of constitutional duty or walking away from a constitutional responsibility. But the Senate majority can in effect do what it wants – unless it becomes politically uncomfortable. Democrats who suggest otherwise are simply telling supporters a politically convenient fairy tale.

Three Pinocchios

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