In the days since Justice Scalia's untimely passing, pundits and scholars have been using the history of Supreme Court nominations and confirmations to make their chosen political point - either that the Senate should or should not confirm a Supreme Court nominee in an Election Year.
These are the simple facts regarding Supreme Court nominations and confirmations in Election Years since the Civil War:
- The last justice confirmed during an Election Year to a vacancy that arose in that year was Justice Cardozo in 1932. When President Hoover nominated Justice Cardozo, he nominated a person of the opposite party.
- The last justice confirmed during an Election Year to a vacancy that arose in that year when the Presidency and the Senate were held by different parties was Justice Fuller in 1888.
- The last justice confirmed during an Election Year to a vacancy that arose in the year prior was Justice Kennedy in 1988. Justice Kennedy was the third nominee to the vacancy. If not for the delay caused by the unprecedented obstruction of President Reagan's first nominee, Judge Robert Bork, the vacancy almost surely would have been filled in 1987.
Prior to 1916, the confirmation process was vastly different from today's extended and highly publicized process. Confirmation hearings were not regularly held, and nominees were frequently confirmed by a voice vote.
Reviewing the actual historical facts in modern judicial confirmations presents a clear picture of Supreme Court nominees not being confirmed in an Election Year to vacancies that occurred in that year.