Sunday, February 14, 2016

'Lame Duck' Nominees Often Confirmed to High Court

      At least 19 Supreme Court justices have been confirmed in the final year of a president’s four-year term in U.S. history, including five chief justices (bold in list below). Contrary to statements by some Republican senators following the death of Justice Antonin Scalia, there is no historical tradition of declining to fill a Supreme Court vacancy during the final year of a president’s four-year term.
      Several nominations made by so-called lame-duck presidents, however, failed (in italics below): In the most recent instance, Lyndon B. Johnson’s nomination of Abe Fortas was withdrawn in the face of a Republican filibuster in the Senate based on ethics issues and Fortas’s liberal views. Somewhat analogously, the Senate did not act on John Tyler’s nomination of John M. Read in 1845 because Southern Democrats were opposed to confirming the anti-slavery Read. And the post now includes, in reply to a commenter, the Whig President Millard Fillmore's three unsuccessful attempts to fill a vacancy in 1852-53, his last year in office, as a Democratic-controlled Senate balked at his choices.

      Here is a list taken from Supreme Court A to Z (5th ed., CQ Press):

      Samuel Chase (1796: Washington)
      William Cushing (1796: Washington)) (Declined)
      Oliver Ellsworth (1796: Washington))
      John Jay (1800: J. Adams) (Declined)
      John Marshall (1801: J. Adams)
      William Johnson (1804: Jefferson)
      John Crittenden (1828: J.Q.Adams) (postponed)
      Roger Taney (1836: Jackson))
      Peter Daniel (1841: Van Buren))
      John Spencer (1844: Tyler) (Rejected)
      Reuben Walworth (1844: Tyler) (Withdrawn)
     Edward King (1844: Tyler) (Withdrawn)
      Samuel Nelson (1845: Tyler)
     John M. Read (1845) (No action)
     Edward Bradford (1852: Fillmore) (No action)
     George Badger (1853: Fillmore) (Postponed)
     William Micou (1853: Fillmore) (No action)
     Jeremiah Black (1861: Buchanan) (Rejected)
      Salmon Chase (1864: Lincoln)
      Ward Hunt (1872: Grant))
      William Woods (1880: Hayes)
      Stanley Matthews (1881: Hayes) (No action; then renominated by Garfield)
      Melville Fuller (1888: Cleveland)
      George Shiras Jr. (1892: B. Harrison)
      Howell Jackson (1893: B. Harrison)
      Mahlon Pitney (1912: Taft)
      Louis Brandeis (1916: Wilson)
      John H. Clarke (1916: Wilson)
      Benjamin Cardozo (1932: Hoover)
      Frank Murphy (1940: F. Roosevelt)
      William J. Brennan Jr. (1956 recess appt.: Eisenhower; confirmed 1957)
      Abe Fortas (1968: L. Johnson) (Withdrawn) )
      Homer Thornberry (1968: L. Johnson) (Withdrawn: no vacancy) )
      Anthony M. Kennedy (1988: Reagan)
      ???? (2016: Obama) (???)


  1. You forgot Edward Bradford, whom Fillmore unsuccessfully nominated in 1852.

  2. It should be noted that Badger's unsuccessful nomination in 1853 marks the only instance of Senatorial courtesy falling through!