Supreme Court Appointments in Presidential Election Years: The Case of John Hessin Clarke

Abstract

Supreme Court Appointments in Presidential Election YearsThe Case of John Hessin Clarke Jonathan L. Entin (bio) When Supreme Court Justice Antonin Scalia died unexpectedly on February 13, 2016, Republicans in the US Senate immediately made clear that they would not consider any nominee proposed by President Barack Obama. Because 2016 was a presidential election year, Majority Leader Mitch McConnell declared within hours of Scalia’s passing: “The American people should have a voice in the selection of their next Supreme Court justice.”1 True to their word, the GOP-controlled Senate refused to take any action on Obama’s nomination of Chief Judge Merrick B. Garland of the US Court of Appeals for the District of Columbia Circuit as Justice Scalia’s successor. This inaction provoked widespread debate, but the vacancy remained open for President Donald J. Trump to appoint Judge Neil M. Gorsuch, of the US Court of Appeals for the Tenth Circuit, to Scalia’s seat.2 The refusal to act on Judge Garland’s nomination marked the first time in 150 years that the Senate had completely stonewalled a Supreme Court [End Page 30] nominee.3 But this does not mean that the confirmation process used to be genteel or straightforward. Since World War II, the only two Supreme Court appointments that had occurred during a presidential election cycle illustrated the fraught nature of such matters. In October 1956, shortly after the opening of the Court’s new term, President Dwight D. Eisenhower nominated New Jersey Supreme Court Justice William J. Brennan Jr. to succeed Justice Sherman Minton, who had retired for health reasons. Eisenhower chose Brennan in an effort to appeal to Catholic voters who traditionally supported Democrats.4 The president acted quickly to put Brennan on the Court, giving him a recess appointment that meant that he was able to hear cases before the Senate got a chance to vote on his confirmation. This posed two potential problems. First, because the recess appointment came before the election, Brennan might not have received a permanent appointment had Eisenhower lost.5 Second, even if Eisenhower won (as he of course did), the recess appointment could undermine Brennan’s independence on the bench because the Senate might retaliate against him for controversial decisions, or, more subtly, Brennan might at least subconsciously decide cases with that possibility in mind.6 In June 1968, Chief Justice Earl Warren announced his retirement. The timing of the announcement was seen as a thinly veiled attempt to prevent the presumptive Republican presidential nominee, Richard M. Nixon, from [End Page 31] appointing his successor. Warren and Nixon disliked each other from their days in Republican politics in their home state of California, and Nixon had strongly criticized the Warren Court’s liberal rulings on criminal law and procedure.7 President Lyndon B. Johnson, who was not seeking reelection, nominated Justice Abe Fortas as the new chief justice, but Republicans and southern Democrats in the Senate filibustered the nomination, and Fortas eventually withdrew.8 Despite the small number of postwar Supreme Court appointments in presidential election years, the prospect of such appointments fueled interbranch tensions. The Brennan appointment played a significant role in the Senate’s adoption of a resolution opposing recess appointments except in “unusual circumstances” to avoid “a demonstrable breakdown in the administration of the Court’s business.”9 Although the resolution expressed only the sense of the Senate, the timing of this move was hardly coincidental: the vote occurred on August 29, 1960, just two days before Congress adjourned to concentrate on the general election, so it served as at least a symbolic warning against any last-minute recess appointments.10 Similarly, as Republicans often pointed out during the Garland stalemate, Vice President Joseph R. Biden, while chairing the Senate Judiciary Committee, had advised President George H. W. Bush not to try to push through a nominee while he was running for reelection in 1992.11 This warning also seemed like no idle threat, coming only a few years after the controversy over the failed nomination of Judge Robert H. Bork and the tumultuous confirmation process for Justice Clarence Thomas. It was not always thus. In 1932, a politically vulnerable President...