History Is Clear: Senate Control Has Overwhelmingly Determined The Fate Of Election-Year Supreme Court Nominations

LEADER McCONNELL: ‘The Historical Precedent Is Overwhelming And It Runs In One Direction’


15 TIMES: In U.S. history, a Supreme Court vacancy arose in a presidential election year and the President nominated someone that year.

  • 8 TIMES: Voters had chosen a Senate majority of the same party as the President. 7 of those 8 nominations were confirmed.
    • The only such nominee who was not confirmed faced bipartisan opposition over serious questions of judicial ethics and personal finances.
    • Apart from that strange exception, no Senate has failed to confirm a nominee in the circumstances that face the body now.
  • 7 TIMES: Voters had chosen an opposite-party Senate to check and balance the President. Only 2 of these 7 nominations were confirmed, the last in 1888.

(“Supreme Court Nominations (1789-Present),” U.S. Senate Website, Accessed 9/19/2020; “Justices 1789 to Present,” Supreme Court of the United States Website, Accessed 9/20/2020; “Party Division,” U.S. Senate Website, Accessed 9/19/2020; “Dates of Sessions of the Congress,” Accessed 9/20/2020; “Abe Fortas Resigns From Supreme Court May 15, 1969,” Politico, 5/15/2008; Professor KC Johnson, “Kennedy’s Retirement Is The Latest Chapter In 50 Years Of Judicial Wars,” The Washington Post, 6/28/2018)


‘President Trump’s Nominee For This Vacancy Will Receive A Vote On The Floor Of The Senate’

SENATE MAJORITY LEADER MITCH McCONNELL (R-KY): “President Trump’s nominee for this vacancy will receive a vote on the floor of the Senate. Now, already, some of the same individuals who tried every conceivable dirty trick to obstruct Justice Gorsuch and Justice Kavanaugh are lining up to proclaim the third time will be the charm. The American people are about to witness an astonishing parade of misrepresentations about the past... misstatements about the present... and more threats against our institutions from the same people who have already been saying for months that they want to pack the Court. Two years ago, a radical movement tried to use unproven accusations to ruin a man’s life because they could not win a vote fair and square. Now, they appear to be readying an even more appalling sequel. This time, the target will not just be the presumption of innocence for one American, but our very governing institutions themselves.” (Sen. McConnell, Remarks, 9/21/2020)

LEADER McCONNELL: “[Some] want to claim this situation is exactly analogous to Justice Scalia’s passing in 2016, and so we should not proceed until January. This is also completely false. Here is what I said on the Senate floor the very first session day after Justice Scalia passed. Quote: ‘The Senate has not filled a vacancy arising in an election year when there was divided government since 1888, almost 130 years ago.’ Here is what I said the next day, when I spoke to the press for the first time on the subject: ‘[You] have to go back to 1888, when Grover Cleveland was president, to find the last time a vacancy created in a presidential-election year was approved by a Senate of a different party.’ As of then, only six prior times in American history had a Supreme Court vacancy arisen in a presidential election year, and the President sent a nomination that year to a Senate of the opposite party. The majority of those times, the outcome was exactly what happened in 2016: No confirmation. The historically normal outcome in divided government. President Obama was asking Senate Republicans for an unusual favor that had last been granted nearly 130 years prior. But voters had explicitly elected our majority to check and balance the end of his presidency. So we stuck with the historical norm.” (Sen. McConnell, Remarks, 9/21/2020)

LEADER McCONNELL: “When voters have not chosen divided government, when the American people have elected a Senate majority to work closely with the sitting president, the historical record is even more overwhelming — in favor of confirmation. Eight such times in our nation’s history, new vacancies have arisen and presidents have made nominations, all during the election year. Seven of the eight were confirmed. And the sole exception, Justice Abe Fortas, was a bizarre situation including obvious personal corruption that extended into financial dealings. Apart from that one strange exception, no Senate has failed to confirm a nominee in the circumstances that face us now. The historical precedent is overwhelming and it runs in one direction. If our Democratic colleagues want to claim they are outraged, they can only be outraged at the plain facts of American history. There was clear precedent behind the predictable outcome that came out of 2016. And there is even more overwhelming precedent behind the fact that this Senate will vote on this nomination this year.” (Sen. McConnell, Remarks, 9/21/2020)

  • LEADER McCONNELL: “The American people re-elected our majority in 2016 and strengthened it further in 2018 because we pledged to work with President Trump on the most critical issues facing our country. The federal judiciary was right at the top of that list…. Perhaps more than any other single issue, the American people strengthened this Senate majority to keep confirming this President’s impressive judicial nominees who respect our Constitution and understand the proper role of a judge. In 2014, the voters elected our majority because we pledged to check and balance a second-term lame-duck President. Two years later, we kept our word. In 2018, the voters grew that majority on our pledge to continue working with President Trump, most especially on his outstanding judicial appointments. We are going to keep our word once again. We are going to vote on this nomination on this floor.” (Sen. McConnell, Remarks, 9/21/2020)



Related Issues: Nominations, Judicial Nominations, History, Supreme Court