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Nominations to Supreme Court in Election Year with Divided and Unified Governments
Based on my cursory research, since the Civil War, there have been ten vacancies on the Supreme Court that arose in a presidential election year. Of those ten, eight were confirmed, one withdrawn, and one was not acted upon. However, of the eight that were confirmed, six were with a unified government–that is the President and the Senate were of the same party. Only two Justices were confirmed by Senates of the opposite party of the President. In 1880, William Burnham Woods, nominated by Rutherford B. Hayes (a Republican) was confirmed by a Democratic Senate. In 1888, Melville Fuller, nominated by Grover Cleveland (a Democrat) was confirmed by a Republican Senate. All other Justices who were nominated to fill vacancies that arose in an election year were confirmed by Senates that were of the same party as the President.
|Justice||Replacing and Vacancy||Submission to Senate||Result||Vote||Date of Result||President||Control of Senate|
|Salmon P. Chase||Taney (10/64)||December 6, 1864||confirmed||voice vote||December 6, 1864||Lincoln (R)||(R)|
|Ward Hunt||Nelson (11/872)||December 3, 1872||confirmed||voice vote||December 11, 1872||Grant (R)||(R)|
|William Burnham Woods||Strong (12/80)||December 15, 1880||confirmed||39–8||December 21, 1880||Hayes (R)||(D)|
|Melville Fuller||Waite (3/88)||April 30, 1888||confirmed||41-20||July 20, 1888||Cleveland (D)||(R)|
|George Shiras, Jr.||Bradley (1/92)||July 19, 1892||confirmed||voice vote||July 26, 1892||B. Harrison (R)||(R)|
|Louis Brandeis||Lamar (1/16)||January 28, 1916||confirmed||47–22||June 1, 1916||Wilson (D)||(D)|
|John Hessin Clarke||Hughes (6/16)||July 14, 1916||confirmed||voice vote||July 24, 1916||Wilson (D)||(D)|
|Benjamin N. Cardozo||Holmes (1/32)||February 15, 1932||confirmed||voice vote||February 24, 1932||Hoover (R)||(R)|
|Abe Fortas||Warren (6/68)||June 26, 1968||withdrawn||–||October 4, 1968||L. Johnson (D)||(D)|
|Homer Thornberry||Fortas (N/A)||June 26, 1968||no action||–||–||L. Johnson (D)||(D)|
I do not include three election-year confirmations because the vacancy arose the prior year.
- The vacancy that Justice Anthony Kennedy filled arose in 1987–which is not an election year. Justice Louis Powell announced his retirement on June 26, 1987. On July 1, 1987, President Reagan nominated Robert Bork to the Supreme Court. On October 23, 1987, the Democratic Senate voted Bork down by a vote of 58-42. Shortly thereafter, President Reagan announced that Judge Douglas Ginsburg would be the next nominee, but he withdrew on November 7, 1987–before he was formally nominated. Five days later on November 12, 1987, President Reagan nominated Judge Anthony Kennedy to the Supreme Court. His hearing was held in December 1987, and he was confirmed in February 1988.
- Justice Frank Murphy was confirmed in January 1940–an election year–but the vacancy arose in 1939.
- Justice John Marshall Harlan died in October 1911, and his vacancy was filled by Mahon Pitney in March 1912. President Taft (a Republican) appointed him, and he was confirmed by a Republican Senate.
Update: This post has been updated.
Disclosure: I am supporting Sen. Cruz’s campaign.