SUPREME COURT NOMINATIONS IN AN ELECTION YEAR

There is a bit of discussion about whether or not it seems legitimate or illigitimate for a president to fill a Supreme Court justice seat during an election year. I feel like we need to unpack that as well as briefly look at some history to put that very real question in context.

Is it proper for a president to fill a Supreme Court seat during an election year?

Arguments for waiting:

• Some people would prefer we wait for the will of the people to resolve with regard to the soon elected president, before the current president who may not be re-elected, makes such a nomination.
• Republicans were for waiting (2016), before they were against waiting (2020)

Arguments against waiting:

• Democrats were against waiting (2016), before they were for waiting (2020)
• Ruth Bader Ginsburg said “The president is elected for four years, not three years. So the power he has in year three continues into year four. Maybe members of the Senate will wake-up and appreciate that that’s how it should be.” (2016)

Historical facts about this process during an election year

• Filling a Supreme Court vacancy during an election year has occured 29 times in US history
• Half of all US Presidents in US history have made nominations during election years with no problems
• For 19 of 20 times, The US Senate and the President were affiliated with the same party
• Of the 19 times when the US Senate and the US President were of the same party, 17 nominations were confirmed in the election year
• 10 times in US history, a US President of a party different from the majority party controlling the US Senate nominated a Supreme Court candidate during an election year
• Of those 10 times where the President and the US Senate did not share a party affiliation, only 2 confirmations occured.

Conclusion:

There is historically no increased likelihood of a presidential nomination being either taken up or confirmed in an election year where the president and the party controlling the senate are not the same party. Said another way…

• Democrats and Republicans controlling the senate are not very likely to confirm a presidential candidate where their party affiliation is not a match during an election year.

• At the same time, Democrats and Republicans are much more likely to confirm presidential Supreme Court nominations during an election year when the party affiliation is the same and the candidate is qualified.