Last night, I was finalizing my column for USA Today when one of my editors flagged my reference to the roughly 30 election-year nominations to the Supreme Court as a possible error. The New York Times ran a story declaring that there “there have been 16 Supreme Court vacancies that occurred before Election Day.” I have previously discussed glaring misstatements of cases in major media, but this was unnerving because the New York Times was suggesting that the precedent for the current nomination was roughly half as previously thought. I decided to do another rough count and, if anything, it would seem that the 29 nomination figure is arguably too low and that there appears almost twice the number cited by the New York Times. The difference appears in part counting a calendar year rather than a year from election, but that approach causes problems in comparison given the earlier early election calendars.
There has been considerable push back on the “precedent” for an election-year nomination. NBC Meet the Press Host Chuck Todd exclaimed “What precedent?!” when John Barrasso (R-WY) even used the word precedent in his interview. In reality, such nominations have occurred regularly in history. Indeed, the late Justice Ruth Bader Ginsburg herself said in 2016 that the Senate had to do its “job” and vote on such nominations because “there’s nothing in the Constitution that says the president stops being president in his last year.” (While Todd correctly considered it newsworthy to note that Ginsburg wanted to leave her seat for the next president to fill, he did not consider it relevant to also note that Ginsburg previously insisted that the Senate was supposed to fill such seats in an election year). Justice Sonia Sotomayor also stated that it was wrong to leave the Court with only eight justices.
That debate will continue to rage, but we should be able to reach a consensus on the historical record, even in this time of rage. Here is my effort (taken at my own peril).
I may be missing something obvious but I count 30 nominations in the year before a presidential election. The current vacancy could produce 31. There are a couple that could be excluded by a day or so (Johnson, Rutledge, Jay, and Crittenden). There is a recess appointment (Brennan). There were also a couple on the last day of the election period (King and Walworth). Moreover, a couple nominees were nominated and then renominated. Some are repeaters. For example, President John Tyler nominated Reuben Walworth three times in 1844, but Tyler was unpopular with the Democrats and the Whigs in Congress (leading to a series of stalled efforts on nominations and legislation). Spencer and King were also repeaters but represented separate nominations. However, even with such eliminations, it comes to roughly 30 not 16 from what I can see.
The New York Times also states that only one nomination was made in a short period in history (Chase) at 27 days. Again, I may be missing something but Chase was nominated on December 4, 1864. The election was on November 4, 1864. That would appear after the election, but I added him since it occurred during a lame duck period. Moreover, a couple of nominees (King and Walworth) appear to have been nominated on the actual last day of the election.
Keep in mind that the date of presidential elections has changed and once occurred over a longer time span. Anyhow, at the risk of making a fool of myself, here are the nomination dates with the election dates in parentheticals.
Thomas Johnson Oct. 31 1791 (Nov-Dec 1792)
John Rutledge Dec. 10, 1795 (Nov.-Dec. 1796)
John Jay Dec. 18, 1800 (Oct. –Dec. 1800)
Gabriel Duvall, Nov. 15, 1811 (Oct.- Dec. 1812)
Joseph Story, Nov. 15, 1811 (Oct. –Dec. 1812)
Smith Thompson Dec. 5, 1823 (Oct.-Dec. 1824)
John Crittenden Dec. 17, 1828 (Oct.-Dec. 1828)
Roger Taney Dec. 28, 1835 (Nov. – Dec. 1836)
Philip Barbour Dec. 28, 1835 (Nov. – Dec. 1836)
John Spencer Jan. 8, 1844 (Nov. – Dec. 1844)
Reuben Walworth March 13, 1844 (Nov. – Dec. 1844)
Edward King June 5, 1844 (Nov. –Dec. 1844)
John Spencer June 17, 1844 (Nov. –Dec. 1844)
Reuben Walworth June 17, 1844 (Nov. –Dec. 1844)
Edward King Dec. 4, 1844 (Nov. –Dec. 1844) *last day of the election on Dec. 4th
Reuben Walworth Dec. 4, 1844 (Nov. –Dec. 1844) *last day of the election on Dec. 4th
Edward Bradford August 16, 1852 (Nov. 2, 1852)
Salmon Chase December 4, 1864 (Nov. 4, 1864) (post election; lame duck period nominee)
Melville Fuller, April 20, 1888. (Nov. 6, 1888)
Lucius Lamar, Dec. 6, 1887. (Nov. 6, 1888)
George Shiras, July 19, 1892 (Nov. 8 1892)
Rufus Peckham Dec. 3, 1895 (Nov. 3, 1896)
Mahlon Pitney March 13, 1912 (Nov. 5, 1912)
Louis Brandeis January 28, 1916 (Nov. 5, 1916)
John Clarke June 10, 1916 (Nov. 7, 1916)
Benjamin Cardozo January 12, 1932 (Nov. 8, 1932)
Frank Murphy January 4, 1940 (Nov. 5, 1940)
William Brennan (recess appointment shortly before 1956 election)
Homer Thornberry June 26, 1968 (Nov. 5, 1968)
Abe Fortas June 26, 1968 (Nov. 5, 1968)
Anthony Kennedy November 30, 1987 (Nov. 8, 1988)
Merrick Garland March 16, 2016 (Nov. 8, 2016)
I could certainly be missing something. Even if the New York Times maintains that there were only 16 such nominations, it should explain its calculation. The most obvious explanation is that the Times is focusing on the calendar year instead of the common reference to “within a year of an election.” The difference however is small. Though early elections included October voting, the difference is the lost of two months in most cases. Moreover, for early election including October, it would cut off three months where presidents have moved within the year of the election, which seem a tad arbitrary and adds an unnecessary barrier for easy comparisons. Moreover, using “vacancies” rather than “nominations” does not address the discrepancies. While some were nominated for the same vacancies, there are clearly many more such cases. Finally, it makes not sense to focus on vacancies. The issue is whether it is extraordinary for the a president to make a nomination within a year of an election. It is not.
Of course, I could certainly be wrong but the Times seems to be advancing too low of a figure. I consider this a working list in progress, so if you spot any errors or omissions please let me know.