In February of 2016, Amy Howe posted an article at scotusblog.com about the history of filling Supreme Court vacancies in presidential election years. I thought sharing that history might shed some light on the current situation. First of all, I don’t think anyone is going to pay attention to the history. The political atmosphere is very intense right now. The Democrats are making an unprecedented power grab with last minute changes to election laws, threats to end the filibuster and stack the Supreme Court if they take the Senate, and threats to burn down the country if President Trump nominates a Supreme Court judge to fill the vacancy left by Justice Ruth Bader Ginsburg. I don’t see this as rational behavior, and I am not sure how voters will react to it.
Amy Howe shares some of the history of presidential election year appointments:
The first nomination during an election year in the twentieth century came on March 13, 1912, when President William Taft (a Republican) nominated Mahlon Pitney to succeed John Marshall Harlan, who died on October 14, 1911. The Republican-controlled Senate confirmed Pitney on March 18, 1912, by a vote of fifty to twenty-six.
President Woodrow Wilson (a Democrat) made two nominations during 1916. On January 28, 1916, Wilson nominated Louis Brandeis to replace Joseph Rucker Lamar, who died on January 2, 1916; the Democratic-controlled Senate confirmed Brandeis on June 1, 1916, by a vote of forty-seven to twenty-two. Charles Evans Hughes resigned from the Court on June 10, 1916 to run (unsuccessfully) for president as a Republican. On July 14, 1916, Wilson nominated John Clarke to replace him; Clarke was confirmed unanimously ten days later.
On February 15, 1932, President Herbert Hoover (a Republican) nominated Benjamin Cardozo to succeed Oliver Wendell Holmes, who retired on January 12, 1932. A Republican-controlled Senate confirmed Cardozo by a unanimous voice vote on February 24, 1932.
On January 4, 1940, President Franklin Roosevelt (a Democrat) nominated Frank Murphy to replace Pierce Butler, who died on November 16, 1939; Murphy was confirmed by a heavily Democratic Senate on January 16, 1940, by a voice vote.
On November 30, 1987, President Ronald Reagan (a Republican) nominated Justice Anthony Kennedy to fill the vacancy created by the retirement of Lewis Powell. A Democratic-controlled Senate confirmed Kennedy (who followed Robert Bork and Douglas Ginsburg as nominees for that slot) on February 3, 1988, by a vote of ninety-seven to zero.
In two instances in the twentieth century, presidents were not able to nominate and confirm a successor during an election year. But neither reflects a practice of leaving a seat open on the Supreme Court until after the election.
Please follow the link to the article for further details. In 2016, Joe Biden said there was no Biden Rule. Evidently now there is a Biden Rule. I guess it’s all a matter of perspective. It would be nice if someone in Washington would occasionally read the U.S. Constitution.