TIME Supreme Court

Here’s What Happened During Other Supreme Court Vacancies in Election Years

Presidents didn't confirm a successor during an election year only twice in the 20th century

The President of the United States has rarely failed to successfully appoint a new Justice to the Supreme Court because of an impending election.

However, an outgoing President Obama faces a mounting battle over his replacement for Justice Antonin Scalia, who died Saturday, as Republicans and
Senate Majority Leader Mitch McConnell argue that the late conservative’s successor shouldn’t be picked until a new president is elected.

Other bench vacancies were filled during presidential election years, according to SCOTUSblog, which covers developments within the country’s highest federal court.

President William Taft nominated Mahlon Pitney to succeed John Marshall Harlan on March 13, 1912 after Harlan died about five months earlier. The Republican-controlled Senate approved Pitney less than a week after the nomination.

In 1916, President Woodrow Wilson nominated Louis Brandeis to replace Joseph Lamar Rucker, who died, and John Clarke to replace Charles Evans Hughes, who resigned from the Court. In the following decades, then-Presidents Herbert Hoover, Franklin Roosevelt and Ronald Reagan also made appointments.

However, presidents didn’t confirm a successor during an election year only twice in the 20th century, according to the blog. In 1956, Dwight Eisenhower made a recess appointment, giving William J. Brennan a seat on the court just before the November election. Brennan was later confirmed in 1957.

In 1968, President Lyndon Johnson nominated Abe Fortas, who was already sitting as an Associate Justice, to succeed Chief Justice Earl Warren. However, the nomination led to a filibuster after many objected to Fortas, as well as the seat being filled in an election year.


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