Supreme Court Vacancies During Presidential Election Years

Last Tuesday President Trump announced his choice for the U.S. Supreme Court seat vacated by the late Antonin Scalia in February of 2016: federal judge Neil Gorsuch.  I myself don't have much of a problem with this nomination other than my feeling that it should have been the previous president, Barack Obama, to make and that his selection of judge Merrick Garland was unfairly shunned and rejected by the Republican Senate majority led by Mitch McConnell.  Their claim that it is a tradition for vacancies within the highest court to not be subjected to election-year politics made me want to look into the past record in this area...so here are my results...

Here is a list of the past United States Supreme Court vacancies that have arisen during a presidential election year.  At the end of each entry is indicated whether the political party of the sitting president at the time of vacancy was the same or different from that which controlled the Senate: (note: this list looks better on a laptop or desktop screen)

            DEPARTING JUSTICE                                  NEW JUSTICE                   PARTY
1800 12/15   Oliver Ellsworth (resigned)          1801  2/04    John Marshall           same
1804  1/26    Alfred Moore (resigned)               1800  5/07   William Johnson       same
1828  8/25    Robert Trimble                              1829  3/07   John McLean            different
1844  4/21    Henry Baldwin                              1846  8/04   Robert Grier              same
1852  7/19    John McKinley                              1853  3/53   John Campbell          same
1860  5/31    Peter Daniel                                   1862  7/16   Samuel Miller           same
1864 10/12   Roger Taney                                  1864 12/15  Samuel Chase           same
1872 11/28* Samuel Nelson (retired)                1872 12/11  Ward Hunt                same
1880 12/14* William Strong (retired)                1880 12/21  William Words         different
1888  3/23    Morrison Waite                             1888 10/08  George Shiras            different
1916  1/02    Joseph Lamar                                1916   6/01   Louis Brandeis         same
1916  6/10    Charles Evan Hughes (resigned)  1916   7/29   John Clarke               same
1932  1/12    Oliver Wendell Holmes (retired)  1932  3/02   Benjamin Cardozo    different
1956 10/15   Sherman Minter (retired)              1956  3/22   William Brennan       different
2016  2/13   Antonin Scalia                                ---?????----                                    different
* vacancy occurred after election

First note that, given that there have been 104 total vacancies so far that required a Senate confirmation process for the successor (including the position of Chief Justice), only 15 have occurred during presidential election years...if this were a random process, around one fourth, or 26, would have happened.  And this discrepancy, already notable as it is, has drastically increased during the last 80+ years...within that long span, until Justice Scalia passed away last year, there was only one election-year vacancy: Sherman Minter's retirement in October of 1956.  In that year, Dwight Eisenhower was running for reelection when the vacancy occurred less than a month from the election.  He announced his pick to be William Brennan, reportedly hoping that his nominee's Roman Catholic affiliation would help him in some of the northern states...but Brennan wasn't confirmed until the following year.  In 1932 then-president Herbert Hoover, a Republican, deliberately chose a Democrat, Benjamin Cardozo, to fill that election year vacancy...he was promptly confirmed by the Democratic-controlled Senate. You would have to go back to 1888, when Grover Cleveland had his election-year nominee George Shiras confirmed in October by the opposition-lead Senate, to find another example of an opposition Senate confirming a president's Supreme Court pick during an election year.  But keep in mind that back then the election campaigning began much later and closer to the election...now it begins in the first half of the previous year.  In 1880, that nomination occurred after the election and in 1828 the vacancy happened in the thick of the campaign...in late August: the succeeding president filled it right after he took office the following year...

So if the same party as the president's controls the Senate, then election-year filling of Supreme Court vacancies isn't that big of a deal...it's just that this scenario hasn't happened since 1916.  If Supreme Court justices die while in office, they have during the past century had the good luck to do it in off-election years...until Scalia's passing last year.  Usually nowadays they choose to retire first, and in doing so they deliberately avoid setting up a situation like that we found ourselves dealing with in 2016.  But I don't like what Senator McConnell, Judiciary Committee Chairman Grassley, and the rest of the Senate Republican caucus did to Obama's nominee Merrick Garland by denying him even a hearing. They were also preemptive in categorically rejecting any approaches that the sitting president made toward them in regard to candidates that they might find acceptable.  There is hardly any sort of tradition against election-year Supreme Court appointments and confirmations: any such tradition, if at all, comes from the justices themselves when they choose the best time to retire. I'm afraid that this sort of unprecedented action...or should I say inaction...will come back to haunt the Senate Republicans and only ratchet up the already-unacceptable level of confrontation and partisanship that has not served our Congress well in recent years. And in the immediate future, it has placed a dark cloud over the confirmation process for Neil Gorsuch...