In 2016, Senate Majority Leader Mitch McConnell (R-Ky.) attracted much controversy when he refused to hold a vote on Barack Obama’s Supreme Court nominee Merrick Garland and cited a rule he pretty much made up that he called the “Biden Rule”, based on Vice President Joe Biden’s 1992 argument for delaying Supreme Court picks until after a presidential election year. Biden of course disavowed that argument. Interestingly, no confirmations of Supreme Court nominees have occurred on presidential election years since Biden’s argument. In 2018, Senate Minority Leader Chuck Schumer (D-N.Y.) shot back after the announcement of Justice Anthony Kennedy’s retirement that justices shouldn’t be confirmed on midterm election years due to McConnell precedent, even though this precedent did not apply to midterm years. If both these men had their preferences, we would only confirm justices on odd-numbered years. As I am wont to do given the nature of this blog, let’s look at the history of it all! I will apply a “controversial justice” standard for this….in other words, justices not accepted unanimously or by acclamation as those are the only times that actually politically “count”. I will refer to these separate views as the “Biden-McConnell” Rule and the “Schumer Retort”.

The “Biden-McConnell” Rule

The number of Supreme Court picks during presidential election years who were controversial is actually rather low. Here’s a timeline of justices confirmed during presidential election years:

1796 – Samuel Chase and Chief Justice Oliver Ellsworth confirmed, Chase by acclamation and Ellsworth with only one dissenting vote.

1804 – William Johnson confirmed, is not controversial as he is confirmed by acclamation.

1836 – Chief Justice Roger B. Taney and Justice Philip Pendleton Barbour are confirmed, and both are controversial.

1864 – Salmon P. Chase is confirmed Chief Justice December 6th, after the election.

1872 – Ward Hunt is confirmed on December 11th, after the election.

1880 – William Burnham Woods is confirmed after the election.

1888 – Justices Lucius Q.C. Lamar and Melville Fuller confirmed by the Senate before the presidential election, and both are controversial.

1892 – George Shiras confirmed by acclamation.

1912 – Justice Mahlon Pitney is confirmed, and he is controversial.

1916 – Justices Louis Brandeis and John Hessin Clarke are confirmed, the former is controversial while the latter is confirmed by acclamation.

1932 – Justice Benjamin Cardozo is confirmed by acclamation.

1940 – Justice Frank Murphy confirmed by acclamation.

1988 – Justice Anthony Kennedy confirmed unanimously.

Observations:

In the entire history of the United States, only seven justices were confirmed during presidential election years before the election who had at least one senator object. Only two of these occurred during the 20th Century, and both occurred over a hundred years ago. Louis Brandeis was the last justice to be confirmed on an election year who was controversial. In 1912 the Senate was held by the Republicans and in 1916 held by the Democrats. The presidents were of the same party. This was not true for 2016. The Republicans only confirmed one justice who was controversial during a presidential election year and before the election had occurred: Mahlon Pitney. 2016 was unique because it was a presidential election year in which the Executive Branch was controlled by one party and the Legislative Branch by another and the justice pick was controversial.

Schumer’s Retort has a lot of history that indicates that if not confirming justices in midterm years were a practice, it would toss out a whole ton of precedent, but I will apply the same “controversial nominee” standard to him as McConnell:

1790: James Iredell confirmed by acclamation.

1798: Bushrod Washington confirmed by acclamation.

1806: Henry Brockholst Livingston confirmed by acclamation.

1826: Robert Trimble confirmed, five senators dissent.

1830: Henry Baldwin confirmed, two senators dissent.

1846: Levi Woodbury and Robert Grier confirmed by acclamation.

1858: Nathan Clifford confirmed, he is controversial.

1862: Noah Haynes Swayne, Samuel Freeman Miller, and David Davis confirmed, the former with only one dissenting vote and the latter two by acclamation. The last one was after the election.

1870: William Strong and Joseph Bradley confirmed, no vote was recorded for the former and the latter with nine dissents.

1874: Morrison Waite confirmed unanimously.

1882: Samuel Blatchford confirmed by acclamation.

1890: Henry Billings Brown confirmed by acclamation, after the election.

1894: Edward Douglass White confirmed by acclamation.

1898: Joseph McKenna confirmed by acclamation.

1902: Oliver Wendell Holmes Jr. confirmed by acclamation after the election.

1906: William Henry Moody confirmed by acclamation after the election.

1910: Charles Evans Hughes, Edward Douglass White, Willis Van Devanter, and Joseph Lamar confirmed by acclamation, White elevation to Chief Justice. Only Hughes is confirmed before the election.

1914: James C. McReynolds is confirmed, with six senators dissenting.

1922: George Sutherland confirmed by acclamation and Pierce Butler confirmed after the election with eight dissenting votes.

1930: Charles Evans Hughes confirmed as Chief Justice, his nomination is controversial. Owen Roberts on the other hand is confirmed by acclamation.

1938: Stanley Forman Reed confirmed by acclamation.

1946: Fred Vinson confirmed as Chief Justice by acclamation.

1954: Earl Warren confirmed as Chief Justice by acclamation.

1962: Byron White and Arthur Goldberg confirmed by acclamation.

1970: Harry Blackmun confirmed unanimously.

1986: William Rehnquist elevated to Chief Justice and is controversial, Antonin Scalia on the other hand is confirmed unanimously.

1990: David Souter confirmed with nine dissenting votes.

1994: Stephen Breyer confirmed with nine dissenting votes.

2006: Samuel Alito confirmed and is controversial.

2010: Elena Kagan confirmed and is controversial.

Observations:

13 Justices were confirmed during midterm years and before the election who had at least one senator dissent. 8 of these instances occurred after 1900. 3 of them occurred with justices currently serving!

Mitch McConnell would have been best off making the “election year” case from an intellectual standpoint if he had qualified it significantly. Given that politics in the media is based around sound-bytes, he made a claim that wasn’t accurate but conveyed a certain message: it is highly irregular for controversial justices to be confirmed in a presidential election year. Chuck Schumer is simply trying to create a new standard to stymie Republicans that has even less basis than the McConnell case. The Democrats badly want to kick back over the Supreme Court but they are unlikely to get their chance until after the midterms.

References (yes I am citing Wikipedia this time, it has an excellent list of what I was looking for!)

List of Justices of the Supreme Court of the United States. Wikipedia.

Retrieved from https://en.wikipedia.org/wiki/List_of_Justices_of_the_Supreme_Court_of_the_United_States