Tradition

Supreme Court building, Washington, DC. Photo by Callen Harty.

On the news this morning I repeatedly heard the argument from talking heads and Republicans that there is a 40-year tradition of no Supreme Court justices nominated and confirmed during an election year. According to these people it just doesn’t happen. For some reason this argument only goes back 40 years rather than looking at our entire history to determine what is tradition. Understood, traditions do change over time, so perhaps they simply selected a random number of years to determine what should be considered tradition. Whatever their reason for the time span selected they were all talking about it as if it were some kind of definitive guide for nominating and confirming justices—that it is just not done in the year before an election.

But let’s look at that 40-year “tradition” just a little closer. Remember, the argument is that justices are not nominated and confirmed in an election year.

Let’s go back exactly 40 years, which was the election year of 1976. There were no nominations to the Supreme Court in that year. However, John Paul Stevens had been nominated by Gerald Ford on November 28, 1975. The election in 1976 was on November 2, so the nomination was less than a year before the election date. According to the “tradition” that supposedly started that year Ford should not have nominated Stevens and the Senate should not have confirmed him because it was less than a year before an election. Bucking the “tradition” that supposedly started that year the Senate, which was controlled by Democrats, confirmed the Republican President’s nominee by a vote of 98-0 on December 17 of 1975.

This was hardly a repudiation of the idea of selecting a Supreme Court justice with an election looming. One would think there must be an incredible number of hotly contested nominations in election years since that time that helped cement this “tradition”. One would be wrong. It is simply not the case.

Since John Paul Stevens there have only been a couple of opportunities for a President to nominate a Supreme Court justice in the year of or within a year before an election.

Ronald Reagan nominated five justices during his Presidency, four of whom were confirmed. His first was Sandra Day O’Connor in 1981, his first year in office. William Rehnquist and Antonin Scalia were nominated in 1986, two years on either side of an election. Robert Bork was put forth in July of 1987, more than a year before the 1988 election. He was the only one of Reagan’s choices who was rejected, joining nine others in history that the Senate had outright rejected. Reagan’s last appointment was Anthony Kennedy, submitted to the Senate on November 30, 1987. The 1988 election was on November 8, just under a year after the nomination, so the tradition would dictate that he should not have been nominated and confirmed. The Senate, controlled by Democrats at the time, confirmed the nomination 97-0.

Until today, Ford’s nomination of Stevens and Reagan’s nomination of Kennedy were the only two Supreme Court justices nominated with less than a year before an election in the last 40 years.

The elder George Bush appointed two justices, David Souter and Clarence Thomas. Souter was nominated in 1990, between election years. Clarence Thomas was nominated more than a year before the next election.

Bill Clinton also appointed two justices. Ruth Bader Ginsburg was nominated in June of 1993 and Stephen Breyer in May of 1994. Both of these were between the election years of 1992 and 1996.

George W. Bush submitted three names in four nominations to the Senate, all of them within the first year after the election of 2004. He submitted John Roberts’ name on July 29, 2005 and that was withdrawn and then resubmitted on September 6 of the same year. Harriet Miers’ was submitted in October of 2005 and also withdrawn. Samuel Alito was then submitted in November and he was approved in early 2006.

Finally, Barack Obama has now put forth three nominees with the announcement today of his nomination of Merrick Garland. His first was Sonia Sotomayor, nominated in June of 2009, Obama’s first year in office. His second was Elena Kagan, nominated in 2010, two years after the 2008 election and two years before the 2012 election.

Merrick Garland is only the third nominee in the last 40 years submitted by a President with a year or less to go before an election. The first two were nominated by Republican Presidents and approved unanimously by Democratic-controlled Senates. This one looks to be a nominee who is not even going to be looked at by the Republican-controlled Senate. Whether that is right or wrong is being argued all over the press and social media, but to say it’s because of a 40-year tradition is an outright lie.