Joe Biden in 1987: President Should Weigh the Senate’s ‘Prevailing Views’ about High Court — Daniel Glover

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Aaron David

A fourth generation Californian, befuddled.

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10 Responses

  1. Avatar Jaybird says:

    He was only saying that because he was in the Senate and in the other party that was in the White House, though.Report

  2. Avatar Kolohe says:

    “Hey, you need to take us into account when doing something” is a different argument than “you shouldn’t do anything until we have another election”

    eta: and remember, Joe’s saying this after Bork was already kicked to the curb.Report

  3. Avatar Kazzy says:

    “The U.S. Senate has confirmed only five Supreme Court justices during presidential election years since 1912…”

    This is useless without knowing the general frequency of confirmations. By my count, there have been 25 elections since 1912. That means 25 election years. That means 1 out of every 5 election years have seen a confirmation. 20%

    That means there have been 80 non-election years since then. How many confirmations happened in those years? 16 would put us in the same range. But it is probably more than that.

    However, we also have to consider openings. If there isn’t an opening during an election year, there can’t be a confirmation. And with many confirmations resulting from retirements — ergo, individual justices exhibiting control over the opening — is it possible that the lower-than-expected frequency is a consequence of the justices opting not to retire during or immediately preceding an election year? As opposed to confirming during an election year somehow being “atypical” and therefore “undesirable”?

    Biden’s quote is relevant. But that stat is basically bunk and useless.Report

    • Avatar Autolukos in reply to Kazzy says:

      The interesting stats, I think, concern how many times a vacancy has occurred but not been filled until after an election. Using this list:

      1911-1912: John Marshall Harlan dies in October 1911, his replacement is sworn in in March 1912.

      1916: Two vacancies: Joseph Rucker Lamar dies in January and is replaced in June; Charles Evans Hughes resigns in June and is replaced in August.

      1932: Oliver Wendell Holmes retires in January and is replaced in March.

      1956: Finally we have one that crosses over an election: Sherman Minton retires on October 15 and is not replaced until March 1957. Given that we’re talking about three weeks before an election vs. 9 months, not a terribly useful comparison.

      1971-1972: Hugo Black and John Harlan retire within a week of each other in September; their replacements are sworn in in January of 1972.

      1987-1988: Lewis Powell retires in June, Kennedy is sworn in in February.

      This gives 7 justices sworn in in an election year; I assume the difference is due to Powell and Rehnquist being confirmed by the Senate in 1971 but not sworn in until January 7, 1972. Only once has a vacancy occurred before an election and not been filled until after, and in that case the vacancy didn’t open until mid-October. There is simply no precedent for what the Republicans are trying to pull.Report

      • Avatar Kazzy in reply to Autolukos says:

        Excellent work, @autolukos . It’d also be useful to look at the average time a seat remains vacant. (I’m not asking you to research that… just saying there are plenty of useful metrics worth looking at and the quoted one ain’t one of them.)Report

        • Avatar Morat20 in reply to Kazzy says:

          For SCOTUS I think the average time was something on the order of three or four months in modern times.Report

        • Avatar Autolukos in reply to Kazzy says:

          I saw this recently, but I don’t recall where. Suffice to say that it would be a serious outlier on this front as well, even more so once the hearings, which I would expect to be the most contentious ever held coming in the wake of these procedural shenanigans, were held. @morat20 is at least in the right ballpark, I think.Report

      • 1956: Finally we have one that crosses over an election: Sherman Minton retires on October 15 and is not replaced until March 1957. Given that we’re talking about three weeks before an election vs. 9 months, not a terribly useful comparison.

        And on November 6, the incumbent president won an overwhelming victory (457-73, over 9 million popular votes, 41 states to 7) , so the delay from then until March wasn’t because his status was in any doubt.

        Minton’s replacement was, by the way, William Brennan.Report

    • Avatar Troublesome Frog in reply to Kazzy says:

      Thanks to @autolukos for giving the relevant details about confirmation times. This Wikipedia entry also provides some context.

      This is all hand calculated from the table, so I could have made an error here or there, but I think I’m close. Of the 57 Justices whose tenure ended after 1900, 18 died and 39 retired/resigned. Only 6 left office during election years. Of the 18 who died, 2 died during election years. Of the 39 who retired/resigned, only 4 did so during election years.

      The probability that you retired given that you’re being replaced during an election year is 0.33. The probability that you retired given that you’re being replaced in a non-election year is about 0.68.

      Only 2 of 18 dying during election years is a little bit fishy, but it’s probably explained by hastily leaving office due to infirmity rather than dying in office. That means that one or two of the election year retirements were illness related rather than purely by choice.

      Basically, Justices generally try hard not to leave vacant seats during election years, so we see very few nominations during election years.Report

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