Kevin M. Kruse @KevinMKruse Historian. Author/editor of White Flight; The New Suburban History; Spaces of the Modern City; Fog of War; One Nation Under God; Fault Lines. Oct. 09, 2018 4 min read

“The tradition going back to the 1880s has been if a vacancy occurs in a presidential election year, and there is a different party in control of the Senate than the presidency, it is not filled."

This line from @senatemajldr is utter garbage. 

Normally, when we talk about a "tradition going back to [year]," that means that we started doing something in [year] and -- now, @senatemajldr, this is the *really* important part if we call it a "tradition" -- it also means we have been doing it regularly ever since [year].

First of all, yes, there actually was a SCOTUS nominee in the 1880s who was nominated by a Republican president and denied a hearing by a Democratic Congress.

But it happened *after* a presidential election, during the true lame-duck period of January 1881.

Two months after the presidential election of 1880 and two months before he left office, President Rutherford B. Hayes (R) nominated his old friend Stanley Matthews to a vacancy on the Court.

The Democratic Congress saw him as an unqualified crony and refused to vote on him.

But Hayes' successor, President James Garfield (R), resubmitted the nomination in March 1881, right after he was sworn in.

This time the Democratic Congress *did* hold a vote, and Matthews squeaked in with the thinnest margin of a successful SCOTUS nominee in US history: 24-23.

So that's the start of what @senatemajldr insists was an election-year "tradition" -- a nomination that came after the election and after the calendar year of the election too.

Not a great start for a tradition.

But I'm sure there are countless other examples after the 1880s of this "tradition" in which presidents of one party repeatedly tried to nominate justices to vacant seats on the Supreme Court and Senates controlled by the other party refused to do so.

Lots and lots of examples.

Wait, here's an example!

In 1888, Democrat Grover Cleveland nominated Melville Fuller to be Chief Justice. The GOP Senate spread vicious rumors about him, and in the end his nomination was ... approved 41-20.

Hmm, that sort of kills this "tradition" right out of the gate.

Now, as I've noted repeatedly, we've had plenty of examples of Supreme Court nominations made during election years that were then confirmed during that same election year -- Shiras (1882), Pitney (1912), Brandeis and Clarke (1916), Cardozo (1932), Murphy (1940), etc. etc.

But! @senatemajldr points out, those all happened when the president and the Senate were controlled by the same party.

Well ... sure. But given how much of the late 19th c and early 20th c saw the president and the Senate controlled by the same party, that's not saying much.

As a result of that basic fact, a key condition of this "tradition" -- the White House and Senate controlled by different parties -- didn't happen often during those decades.

What's more, Supreme Court vacancies in election years were rare too.

Both at the same time? VERY RARE.

But, even if we want to be generous and give McConnell a mulligan for Cleveland/Fuller, this *did* happen twice in the modern era.

In 1956, Ike (R) put William Brennan on the bench with a Dem Senate.

In 1988, Reagan (R) put Anthony Kennedy on the bench with a Dem Senate, too.

Now, @senatemajldr is quick to dismiss these inconvenient events.

Brennan doesn't count apparently, because Ike used a recess appointment to put him on the bench a few weeks before the 1956 election, and the Democratic Senate didn't confirm him officially until early 1957.

(I'll pause here to note that this is pretty much the same pattern of post-election confirmation that happened with Justice Matthews, the case that @senatemajldr considers the start -- and, to this point, the *only* example -- of his grand "tradition," but let's keep moving.)

Kennedy, we're told, doesn't count because while it's true that a Democratic Senate *did* confirm a Republican president's nominee to the Supreme Court during an election year, the nomination was actually made before the actual calendar year of 1988. (It came on 11/11/87.)

(I'll pause again to note that, in the example that kicked off this "tradition" -- and, at the risk of repeating myself, I should emphasize that it's still the ONLY example McConnell has -- came entirely after the election was over, and that didn't seem to bother him, but OK.)

Even if we agree with McConnell's incredibly pinched, self-serving definition of what gets to count here and what doesn't, we're left with a "tradition" that includes one instance in 1881 -- again, NOT an election year! -- and then literally nothing else until Garland in 2016.

One distorted example in 1881 that was never repeated until 2016 -- and was contradicted by examples in 1888, 1956 and 1988 -- is not, by any definition of the term, a "tradition."

This is a ludicrous distortion that deserves to be called out (as @jdickerson did this weekend).

But since @senatemajldr cares so much about this history, let me assure him:

We historians have been duly recording his contributions to the long traditions of Supreme Court nominations and we'll be *sure* to single him out for the attention he so richly deserves.

You can follow @KevinMKruse.


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