Last night, I was finalizing my column for USA Today when one of my editors correctly my reference to the roughly 30 election-year nominations to the Supreme Court. The New York Times ran a story declaring that there were only “there have been 16 Supreme Court vacancies that occurred before Election Day.” I have previously discussed glaring misstatements of cases in major media, but this was unnerving because the New York Times was suggesting that the precedent for the current nomination was roughly half as previously thought. I decided to do another rough count and, if anything, it would seem that the 29 nomination figure is arguably too low and that there appears almost twice the number cited by the New York Times.
There has been considerable push back on the “precedent” for an election-year nomination. NBC Meet the Press Host Chuck Todd exclaimed “What precedent?!” when John Barrasso (R-WY) even used the word precedent. In reality, such nominations have occurred regularly in history. Indeed, the late Justice Ruth Bader Ginsburg herself said in 2016 that the Senate had to do its “job” and vote on such nominations because “there’s nothing in the Constitution that says the president stops being president in his last year.” Justice Sonia Sotomayor also stated that it was wrong to leave the Court with only eight justices.
That debate will continue to rage, but we should be able to reach a consensus on the historical record, even in this time of rage. Here is my effort (taken at my own peril).
I may be missing something obvious but I count 30 nominations in the year before a presidential election. The current vacancy could produce 31. There are a couple that could be excluded by a day or so (Johnson, Rutledge, Jay, and Crittenden). There is a recess appointment (Brennan). There were also a couple on the last day of the election period (King and Walworth). Moreover, a couple nominees were nominated and then renominated. Some are repeaters. For example, President John Tyler nominated Reuben Walworth three times in 1844, but Tyler was unpopular with the Democrats and the Whigs in Congress (leading to a series of stalled efforts on nominations and legislation). However, even with such eliminations, it comes to roughly 30 not 16 from what I can see.
Keep in mind that the date of presidential elections has changed and once occurred over a longer time span. Anyhow, at the risk of making a fool of myself, here are the nomination dates with the election dates in parentheticals.
Thomas Johnson Oct. 31 1791 (Nov-Dec 1792)
John Rutledge Dec. 10, 1795 (Nov.-Dec. 1796)
John Jay Dec. 18, 1800 (Oct. –Dec. 1800)
Gabriel Duvall, Nov. 15, 1811 (Oct.- Dec. 1812)
Joseph Story, Nov. 15, 1811 (Oct. –Dec. 1812)
Smith Thompson Dec. 5, 1823 (Oct.-Dec. 1824)
John Crittenden Dec. 17, 1828 (Oct.-Dec. 1828)
Roger Taney Dec. 28, 1835 (Nov. – Dec. 1836)
Philip Barbour Dec. 28, 1835 (Nov. – Dec. 1836)
John Spencer Jan. 8, 1844 (Nov. – Dec. 1844)
Reuben Walworth March 13, 1844 (Nov. – Dec. 1844)
Edward King June 5, 1844 (Nov. –Dec. 1844)
John Spencer June 17, 1844 (Nov. –Dec. 1844)
Reuben Walworth June 17, 1844 (Nov. –Dec. 1844)
Edward King Dec. 4, 1844 (Nov. –Dec. 1844) *last day of the election on Dec. 4th
Reuben Walworth Dec. 4, 1844 (Nov. –Dec. 1844) *last day of the election on Dec. 4th
Edward Bradford August 16, 1852 (Nov. 2, 1852)
Melville Fuller, April 20, 1888. (Nov. 6, 1888)
George Shiras, July 19, 1892 (Nov. 8 1892)
Rufus Peckham Dec. 3, 1895 (Nov. 3, 1896)
Mahlon Pitney March 13, 1912 (Nov. 5, 1912)
Louis Brandeis January 28, 1912 (Nov. 5, 1912)
John Clarke June 10, 1916 (Nov. 7, 1916)
Benjamin Cardozo January 12, 1932 (Nov. 8, 1932)
Frank Murphy January 4, 1940 (Nov. 5, 1940)
William Brennan (recess appointment shortly before 1956 election)
Homer Thornberry June 26, 1968 (Nov. 5, 1968)
Abe Fortas June 26, 1968 (Nov. 5, 1968)
Anthony Kennedy November 30, 1987 (Nov. 8, 1988)
Merrick Garland March 16, 2016 (Nov. 8, 2016)
I could certainly be missing something. I consider this a working list in progress, so if you spot any errors or omissions please let me know.