Nominations to Supreme Court in Election Year with Divided and Unified Governments

February 13th, 2016

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 Of those ten, eight were confirmed, one withdrawn, and one was not acted upon.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Abe Fortas Warren (6/68) June 26, 1968 withdrawn  – October 4, 1968 L. Johnson (D) (D)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.

  1. 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.
  2. Justice Frank Murphy was confirmed in January 1940–an election year–but the vacancy arose in 1939.
  3. 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.