The battle over the future of Justice Ruth Bader Ginsburg’s Supreme Court seat is heating up, with each side arguing precedent and with Democrats claiming hypocrisy by Republicans.
The Democrats say the 2016 Republican-controlled Senate refused to consider former President Barack Obama’s Supreme Court nominee to replace the late Justice Antonin Scalia. Democrats say that example means there is precedent to not fill the vacancy until after the election.
The Republicans argue that precedent is actually on the side of them filling the seat now and that this is a different situation than four years ago.
Senate Majority Leader Mitch McConnell, who was in the same position when Obama nominated Merrick Garland to the Supreme Court, put out a press release this week arguing history supported the Republicans. He said there have been 15 times that a Supreme Court vacancy has opened in a presidential election year and that the president nominated someone that same year. Eight of those times, the White House and Senate were controlled by the same party and seven of the nominees were confirmed. In the other seven nominations, the White House and Senate were different parties and only two nominees were confirmed.
And while the data is cited accurately, the reality is not as cut and dry as McConnell makes it sound.
THE QUESTION
Are McConnell’s numbers correct? Is there precedent for declining to fill Scalia’s seat until after the election but choosing to fill Ginsburg’s seat before the election?
THE ANSWER
McConnell’s numbers are accurate, but there’s a lot of missing context. For example, how close a vacancy opened to election day itself was not taken into account.
WHAT WE FOUND
McConnell’s press team shared the list of election year vacancies included in their data with the VERIFY team. That list included:
- President Barack Obama’s nomination of Merrick Garland to replace Justice Antonin Scalia
- President Grover Cleveland’s nomination of Melville Fuller to replace to replace Chief Justice Morrison Waite
- President Rutherford Hayes’ nomination of William Woods to replace Justice William Strong
- President Millard Fillmore’s nomination of Bradford to replace Justice John McKinley
- Two nominations by President John Tyler of Edward King to replace Justice Henry Baldwin
- President John Quincy Adams’ nomination of John Crittenden to replace Justice Robert Trimble
- President Lyndon Johnson’s nomination of Abe Fortas to replace Chief Justice Earl Warren
- President Herbert Hoover’s nomination of Benjamin Cardozo to replace Justice Oliver Wendell Holmes
- President Woodrow Wilson’s nomination of John Clarke to replace Charles Evans Hughes
- Wilson’s nomination of Louis Brandeis to replace Justice Joseph Lamar
- President Benjamin Harrison’s nomination of George Shiras to replace Justice Joseph Bradley
- President Ulysses Grant’s nomination of Ward Hunt to replace Justice Samuel Nelson
- President Abraham Lincoln’s nomination of Salmon P. Chase to replace Chief Justice Robert Taney
- President Thomas Jefferson’s nomination of William Johnson to replace Justice Alfred Moore.
McConnell's team used the Senate's Supreme Court nominations page, the Supreme Court's list of justices and the Senate's historical party divisions page as their sources.
A cross-reference of these found that their list accurately portrayed Supreme Court vacancies that opened in an election year and had replacements nominated that same year. It also accurately portrayed party alignments and who was confirmed or not.
The list does leave out President Johnson's nomination of Homer Thornberry. He was nominated to take Fortas' seat when Fortas was nominated to move up to chief justice. But Fortas' nomination was later withdrawn and, as a result, so was Thornberry's.
But while the list does accurately meet McConnell's criteria, that criteria is subject to scrutiny.
McConnell's list includes two examples where Supreme Court seats were vacated after the election but still during the same calendar year. In these examples, both nominees were confirmed: one by the same party as the president and another by the opposing party.
However, the election was no longer a consideration in either case. In one instance, the president had just won re-election. In the other, the president was about to be replaced by a member of his own party.
This list also excludes instances where a Supreme Court seat was vacated shortly before the election but a nominee wasn't submitted until the following calendar year. For example, President Dwight Eisenhower didn't nominate a replacement for Justice Sherman Minton, whose term ended less than 25 days before election day, until the following January. By then, Eisenhower had won re-election and the Senate majority remained in opposition to him both before and after the election.
Another example is when Peter Daniel's seat opened up about six months before President James Buchanan sought re-election. Buchanan didn't nominate someone until the following February after he lost re-election and was set to be replaced by a member of the opposite party. His nominee was not confirmed despite his party controlling the Senate majority.
Similar to those instances, Lincoln also didn't nominate anyone until after the election. A Supreme Court seat opened up in the final month before election day and Lincoln didn't nominate anyone for his party to confirm until December, after he had won re-election. Regardless, it was counted all the same.
The timing of these is especially notable because generally, Supreme Court seats have become vacant with more time before election day when the president and Senate are unified than when they're divided.
Of the eight times McConnell noted a vacancy under same-party rule, there were four cases in which that vacancy first opened in January. In another case, the seat did not become vacant until after the election. And in another, the nominee wasn't submitted until after the election was over.
Meanwhile, none of the vacancies during opposite-party rule occurred in January of the election year. Scalia's seat under Obama's presidency first opened up in February and Waite's seat -- the last one McConnell says was confirmed in an election year by a Senate of the opposite party -- opened during Cleveland's presidency in March. All of the other seats first became vacant later in their respective years, one of which became vacant after the election.
Of the four previous times a Supreme Court seat has become vacant within four months of a presidential election, a nominee has never been confirmed before the election. Each time, the Senate never confirmed the nominee of a president whose party lost re-election and eventually confirmed the nominee of a president who had won re-election.
Therefore, while McConnell may have an argument that there is precedent for the president's party to confirm a Supreme Court nominee for an election year vacancy, doing so would be unprecedented nonetheless for how close it would be to election day.