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Wednesday, July 17, 2024 | Back issues
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History Weighs Against Speedy SCOTUS Action

WASHINGTON (CN) - Amid debate over who should fill deceased Supreme Court Justice Antonin Scalia's seat on the court, history suggests the Senate has rarely confirmed a justice nominated in a president's final year in office.

Not since Benjamin Harrison appointed Howell Jackson to the nation's highest court in 1893 has the Senate confirmed a nominee appointed within a year of a president leaving office, according information on the Senate website.

Seven other justices in the 1800s cleared a similar hurdle, including John Marshall, who John Adams appointed 43 days before leaving office. Marshall went on to serve 34 years on the bench and became one of the most influence chief justices in the court's history.

All told nearly 13 percent of the justices who ever served on the Supreme Court were appointed either in an election year or in a President's final year in office, though none since World War II.

In response to Scalia's death over the weekend, Republicans and Democrats in Congress and on the campaign trail have lobbed shots over whether President Barack Obama should be able to nominate the conservative justice's replacement or whether the privilege should go to the person elected to replace him.

An Obama nominee would almost certainly shift the newly split court to the left, causing Republicans to threaten to delay the appointment until after the election.

"The American people should have a voice in the selection of their next Supreme Court justice," Senate Majority Leader Mitch McConnell said in a statement released Saturday. "Therefore, this vacancy should not be filled until we have a new President."

But Democrats naturally disagreed, arguing Obama has the right to appoint a judge so long as he is in office and that the Senate has the obligation to consider whoever the president puts forth.

"The President can and should send the Senate a nominee right away," Senate Minority Leader Harry Reid said in a statement. "With so many important issues pending before the Supreme Court, the Senate has a responsibility to fill vacancies as soon as possible. It would be unprecedented in recent history for the Supreme Court to go a year with a vacant seat. Failing to fill this vacancy would be a shameful abdication of one of the Senate's most essential Constitutional responsibilities."

In his statement, Reid pointed particularly to Ronald Reagan appointee Anthony Kennedy as an example of a justice in recent history confirmed in the last year of a president's term, but Reid leaves out important context in making this point.

While Kennedy was confirmed on Feb. 3, 1988, less than a year before Reagan left office, his appointment lay dormant in the Democrat-controlled Senate for 65 days. Reagan actually tapped Kennedy on Nov. 30, 1987, before the clock started ticking on his final year.

Andrew Jackson similarly appointed Roger Taney and Philip Barbour before his last year in office only to see the Senate sit on their confirmations until after his final year began.

Admittedly, this fairly strict interpretation of situation now at hand only includes justices appointed in the last year of a president's final term in office. Expanding the definition slightly captures more justices appointed by a president with relatively little time in the White House.

For example, William Howard Taft appointed Mahlon Pitney to the bench on Feb. 19, 1912 and left office on March 4, 1913. While his appointment technically came before his final year in office officially began, Taft did successfully appoint a justice in the year of an election he lost.

In addition to the justices nominated and confirmed in a president's final year in office, eight others were successfully appointed in an election year. Two - Pitney and Herbert Hoover appointee Benjamin Cardozo - were confirmed before the president who appointed them lost an election.

No president has successfully appointed a Supreme Court justice ahead of an election since Franklin Delano Roosevelt appointed Frank Murphy in January 1940 before winning that year's election in a landslide.

Eleven other judges were nominated in an election year, including seven in 1844, but each was either rejected, declined the position, had his name withdrawn or had no action taken on his appointment.

No president has nominated a Supreme Court Justice ahead of an election since Lyndon Johnson nominated Homer Thornberry in June 1968. Johnson withdrew his nomination one month before the election.

While the Senate confirming a judge in an election year would be out of the ordinary, so would the Senate rejecting a president's appointee. The Senate has only rejected 12 of the 160 Supreme Court nominations sent from the president, and has not done so since it rejected Reagan appointee Robert Bork in 1987.

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