List of people nominated to the Supreme Court of the United States in the last year of a presidency

Vacancies on the Supreme Court of the United States rarely arise during the last year of a presidency.[1][2][3] Following is a list of those people who were nominated to the U.S. Supreme Court during the last year of a president's last term. This list does not include presidents who never had an opportunity to serve what would have been their last year, due to resignation or death.

Political scientist Michael Nelson wrote in 2012 that the U.S. Senate is less likely to approve Supreme Court nominations that are submitted during the final year of a presidency.[4] This type of situation received considerable public attention in 2016 with the death of Justice Antonin Scalia and the resulting Merrick Garland Supreme Court nomination.[5][6]

Law professors Jason Mazzone and Robin Kar published a study in 2016 in which they wrote that a detailed analysis of Senate history does not support a deliberate inter-presidential transfer of nominating power from one president to the next. In their view, an actual vacancy ought to be viewed differently from a vacancy that is announced in advance but never actually vacated ("NV"); an elected president who makes a nomination ought to be viewed differently from a president-by-succession ("S"); and, a nomination made post-election-of-successor ("PE") should be distinguished from a nomination made earlier.[7][8] Accordingly, the list below indicates these things in the notes column, although these distinctions have been questioned by scholars such as Edward Whelan.[9]

Possible results

There are several possible results of a Supreme Court nomination:

  • "confirmed"—for nominees who were confirmed and accepted confirmation.
  • "rejected"—for nominees who lost their confirmation vote.
  • "declined"—for nominees who declined nomination. This includes nominees who were confirmed by the Senate but declined to serve.
  • "pending"—for nominees pending before the current session of the Senate.
  • "withdrawn"—for nominations withdrawn by the President prior to a confirmation vote.
  • "no action"—for cases in which the Senate session ended without the nomination being brought to the floor for consideration.
  • "postponed"—for nominations about which a vote was taken to defer consideration of the nominee, but no confirmation vote took place. In this case, the "date of result" is the date of the vote to postpone. The Senate need not vote to postpone or table a matter "indefinitely", in order for a resolution to have that effect.[10]

Nominees

President Nomination
PresidentLast day of
last term		PartyNomineeSenate
Control		Submitted
to Senate		ResultDate of
Result		Notes
J. AdamsMar. 4, 1801FedJohn JayFedDec. 18, 1800declinedDec. 19, 1800PE[7][11]
John MarshallJan. 20, 1801confirmedJan. 27, 1801PE[7][11]
J. Q. AdamsMar. 4, 1829D-RJohn J. CrittendenD-RDec. 17, 1828postponedFeb. 12, 1829PE[3][7][11]
JacksonMar. 4, 1837DemWilliam SmithDemMar. 3, 1837declinedMar. 8, 1837PE[7][11]
John CatronMar. 3, 1837confirmedMar. 8, 1837PE[7][11]
Van BurenMar. 4, 1841DemPeter Vivian DanielDemFeb. 26, 1841confirmedMar. 2, 1841[11]
TylerMar. 4, 1845NoneReuben WalworthWhigMar. 13, 1844withdrawnJune 17, 1844S[7][11]
Edward KingJune 5, 1844postponedJune 15, 1844S[7][11]
John C. SpencerJune 17, 1844withdrawnJune 17, 1844S[7][11]
Reuben WalworthJune 17, 1844no actionJune 17, 1844S[7][11]
Edward KingDec. 4, 1844withdrawnFeb. 7, 1845S;PE[7][11]
Reuben WalworthDec. 4, 1844withdrawnFeb. 4, 1845S;PE[7][11]
Samuel NelsonFeb. 4, 1845confirmedFeb. 14, 1845S;PE[7][11]
John M. ReadFeb. 4, 1845no actionS[7][11]
FillmoreMar. 4, 1853WhigEdward A. BradfordDemAug. 16, 1852no actionS[7][11]
George E. BadgerJan. 3, 1853withdrawnFeb. 14, 1853S;PE[7][11]
William C. MicouFeb. 14, 1853no actionS;PE[7][11]
BuchananMar. 4, 1861DemJeremiah S. BlackDemFeb. 5, 1861declinedFeb. 21, 1861PE[7][11]
HayesMar. 4, 1881RepWilliam Burnham WoodsDemDec. 15, 1880confirmedDec. 21, 1880PE[7][11]
Stanley MatthewsAJan. 26, 1881no actionPE[7][11]
ClevelandMar. 4, 1889DemMelville FullerRepApr. 30, 1888confirmedJuly 20, 1888[3][11]
B. HarrisonMar. 4, 1893RepGeorge Shiras Jr.RepJuly 19, 1892confirmedJuly 26, 1892[11]
HooverMar. 4, 1933RepBenjamin N. CardozoRepFeb. 15, 1932confirmedFeb. 24, 1932
L. JohnsonJan. 20, 1969DemAbe FortasBDemJune 26, 1968withdrawnOct. 2, 1968NV[3][7][11]
Homer ThornberryCJune 26, 1968withdrawnOct. 2, 1968NV[7][11]
ObamaJan. 20, 2017DemMerrick GarlandDRepMar. 16, 2016no actionJan. 3, 2017[6][11][12]

Notes

A.^ Matthews was re-nominated immediately by President Garfield and confirmed.
B.^ Fortas was a sitting Associate Justice nominated to assume the post of Chief Justice; he continued to serve on the Court after this nomination was withdrawn.
C.^ This nomination (to assume Fortas's seat should Fortas become Chief Justice) became moot when Fortas's nomination was withdrawn.
D.^ During the 2016 Garland dispute, attention was drawn to the fact that Anthony Kennedy was confirmed by a Democratic Senate on February 18, 1988, during the last year of Republican Ronald Reagan's presidency (which ended January 20, 1989).[13] However, Kennedy is excluded from this list because he had been nominated on November 11, 1987 (for a seat that had been vacant since June 26, 1987).

See also

References

  1. ↑ "Do presidents stop nominating judges in final year?", Politifact (February 14, 2016).
  2. ↑ Kiely, Eugene. "Cruz, Rubio Twist Court 'Precedent'", FactCheck.org (February 17, 2016).
  3. 1 2 3 4 Kessler, Glenn. "Does the Senate have a constitutional responsibility to consider a Supreme Court nomination?", Washington Post (March 16, 2016).
  4. ↑ Nelson, Michael. "2013 and Beyond: Barack Obama and the Perils of Second Term Presidents" in Elections of 2012, p. 33 (SAGE Publications, 2013): "During the final year of the second term, the Senate takes an especially jaundiced view of the president's judicial nominations. Historically, the rejection rate for final year nominations to the United States Supreme Court has been 48 percent, compared with 14 percent for nominations made earlier in the term. When the opposition party controls the Senate, the final year rejection rate rises to 75 percent."
  5. ↑ Levy, Gabrielle. "Even GOP Voters Think Senate Should Confirm SCOTUS Nominee", U.S. News and World Report (March 31, 2016): "Because Obama has less than a year left in his term, McConnell said, he should not get to make a lifetime appointment..."
  6. 1 2 Shear, Michael (March 16, 2016). "Obama Chooses Merrick Garland for Supreme Court". New York Times.
  7. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Kar, Robin and Mazzone, Jason. "The Garland Affair: What History and the Constitution Really Say About President Obama's Powers to Appoint a Replacement for Justice Scalia", NYU Law Review (On-Line Features, 2016) via SSRN.
  8. ↑ "Law Profs Kar and Mazzone Respond", Bench Memos, National Review (June 9, 2016).
  9. ↑ Whelan, Edward. "Law Profs Kar/Mazzone on Senate Duty on Supreme Court Vacancies --- Part 3", Bench Memos, National Review (June 7, 2016).
  10. ↑ Beth, Richard (2009). Supreme Court Nominations: Senate Floor Procedure and Practice, 1789-2009. DIANE Publishing. pp. 5ff. ISBN 978-1-4379-1994-3.
  11. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 "Supreme Court Nominations". Official website of the United States Senate. Retrieved February 3, 2006.
  12. ↑ Bravin, Jess (January 3, 2017). "President Obama's Supreme Court Nomination of Merrick Garland Expires". Wall Street Journal.
  13. ↑ http://www.msnbc.com/rachel-maddow-show/justice-kennedys-confirmation-debunks-key-gop-talking-point
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