On September 7, 1956, US Supreme Court Justice Sherman Minton penned a note to President Dwight Eisenhower. Minton, a former Democratic senator from Indiana who had been appointed to the Court by President Harry Truman, was in ailing health. He informed the president that he was retiring from the Court. Eisenhower responded with a note expressing his hope that Minton would enjoy his time off.
Justice Minton left the Court on October 15, 1956, as the country was focused on that year’s presidential campaign and intense battles for control of the House of Representatives and the Senate. Eisenhower, the Republican nominee for a new term, had a lot on his mind. But he found time that week to fill the vacancy created by Minton’s departure. As the Senate was in recess, the president simply appointed New Jersey Supreme Court Justice William Brennan Jr. to the High Court.
Justice Brennan took his place on the bench immediately.
That was that.
And that is a part of the history of how Supreme Court vacancies are filled in election years.
Recess appointments are rare (although Eisenhower also made initial appointments of Chief Justice Earl Warren and Justice Potter Stewart during recesses in 1953 and 1958, respectively) and are eventually followed by post-recess, post-election nominations, and confirmations (as was the case with Warren, Stewart, and Brennan). But nominations and confirmations of new justices in election years are not particularly rare. (Indeed, the authoritative Scotusblog notes, “The historical record does not reveal any instances since at least 1900 of the president failing to nominate and/or the Senate failing to confirm a nominee in a presidential election year because of the impending election. In that period, there were several nominations and confirmations of Justices during presidential election years.”
There is ample precedent for nominations and confirmations in politically contentious periods on the cusp of presidential election years. And there is a long history of nominations made and confirmations delivered during off-year election seasons when control of the Senate is at stake.
So why are supposedly responsible Republican senators like Ohioan Rob Portman and otherwise serious media commentators according even the slightest respect to the off-the-deep-end proposal by Republican presidential candidates (included alleged “constitutionalists” Ted Cruz and Marco Rubio) and Republican Senate leaders that a vacancy on Supreme Court be left open for a year so that, if the 2016 election goes their way, a Republican president and a Republican-controlled US Senate can name the successor to the late Justice Antonin Scalia? Why would anyone with access to the historical record and a desire to provide a clear picture of the process of filling vacancies on the nation’s highest court perpetuate the fantasy that a sitting president ought not move to fill an opening on the Supreme Court during the term to which that president has been elected?