The rules:
1. Play nice.
2. See rule 1.
The precedent for nomination
Ref: Supreme Court Nominations, 1789-present
There's been some suggestion that a nomination during a presidential election year violates an 80-year precedent. In fact, there is no such precedent. Vacancies on the Supreme Court, and hence nominations during election years are rare. I can find no case where a vacancy in an election year did not lead to a nomination.
There is one precedent, typified by a sole example, however, for withholding a Supreme Court confirmation vote in an election year: the intended replacement of Chief Justice Earl Warren in 1968. No election year resignations, retirements, or deaths have taken place since then, and in fact, a nomination was indeed submitted to the Senate in that case.
With Johnson choosing not to run again, and expecting a Nixon presidency, Warren announced his retirement in June 1968 to allow Johnson to name his replacement. In a brokered deal, Johnson chose Associate Justice Abe Fortas, who was originally nominated to the court by Lyndon Johnson and confirmed by the Senate in 1965. Simultaneous with Fortas' nomination for elevation, Homer Thornberry was nominated to replace Fortas.
Already under pressure from partisan opposition due to general conservative displeasure with the Warren court and Johnson's Civil Rights Act, the deal fell apart under mounting accusations of ethics violations by Fortas. Fortas had accepted an out-sized, for the time, payment from private business interests for a series of speeches. In addition, Fortas' close association with Johnson even after his appointment to the court brought into question the constitutional separation of powers should he be named Chief Justice.
Fortas was deeply compromised, leading to an arguably well-deserved filibuster of his nomination, even if the proximate cause was less deserving. Both nominations were withdrawn by Johnson on October 4, a month before the election. Warren then chose to delay his retirement, removing the vacancy until after the election, and with it, the need for a nomination.
Vacancy on the Supreme Court
The next president will take office in 11 months. There is no precedent for a period that long without a nomination, and the resulting vacancy could well be the longest in history.
The longest previous vacancy was occasioned by the death of one of the original justices, William Cushing, on September 13, 1810, replaced by Joseph Story on Nov 18, 1811 after two previous nominees declined to serve and one was rejected. No nomination was sent to the Senate in the period after former President John Quincy Adams declined to serve on Feb 22 and before Story's nomination on Nov 15, representing the longest period without a nomination as well. Smith Johnson's vacancy, occasioned by his death on December 18, 1843 ran nearly as long, until his replacement by Samuel Nelson on Feb 14, 1845 after a long parade of failed nominations.
It's noteworthy that Nelson was nominated on Feb 4, one month prior to James Polk's inauguration on Mar 4, 1845.
1. Play nice.
2. See rule 1.
The precedent for nomination
Ref: Supreme Court Nominations, 1789-present
There's been some suggestion that a nomination during a presidential election year violates an 80-year precedent. In fact, there is no such precedent. Vacancies on the Supreme Court, and hence nominations during election years are rare. I can find no case where a vacancy in an election year did not lead to a nomination.
There is one precedent, typified by a sole example, however, for withholding a Supreme Court confirmation vote in an election year: the intended replacement of Chief Justice Earl Warren in 1968. No election year resignations, retirements, or deaths have taken place since then, and in fact, a nomination was indeed submitted to the Senate in that case.
With Johnson choosing not to run again, and expecting a Nixon presidency, Warren announced his retirement in June 1968 to allow Johnson to name his replacement. In a brokered deal, Johnson chose Associate Justice Abe Fortas, who was originally nominated to the court by Lyndon Johnson and confirmed by the Senate in 1965. Simultaneous with Fortas' nomination for elevation, Homer Thornberry was nominated to replace Fortas.
Already under pressure from partisan opposition due to general conservative displeasure with the Warren court and Johnson's Civil Rights Act, the deal fell apart under mounting accusations of ethics violations by Fortas. Fortas had accepted an out-sized, for the time, payment from private business interests for a series of speeches. In addition, Fortas' close association with Johnson even after his appointment to the court brought into question the constitutional separation of powers should he be named Chief Justice.
Fortas was deeply compromised, leading to an arguably well-deserved filibuster of his nomination, even if the proximate cause was less deserving. Both nominations were withdrawn by Johnson on October 4, a month before the election. Warren then chose to delay his retirement, removing the vacancy until after the election, and with it, the need for a nomination.
Vacancy on the Supreme Court
The next president will take office in 11 months. There is no precedent for a period that long without a nomination, and the resulting vacancy could well be the longest in history.
The longest previous vacancy was occasioned by the death of one of the original justices, William Cushing, on September 13, 1810, replaced by Joseph Story on Nov 18, 1811 after two previous nominees declined to serve and one was rejected. No nomination was sent to the Senate in the period after former President John Quincy Adams declined to serve on Feb 22 and before Story's nomination on Nov 15, representing the longest period without a nomination as well. Smith Johnson's vacancy, occasioned by his death on December 18, 1843 ran nearly as long, until his replacement by Samuel Nelson on Feb 14, 1845 after a long parade of failed nominations.
It's noteworthy that Nelson was nominated on Feb 4, one month prior to James Polk's inauguration on Mar 4, 1845.
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