Since the Civil War,
eleven Supreme Court nominations have been voted on in the fourth year of a president’s term. All but two were approved.
In not one case did the Senate refuse to even consider the nomination. Of the nine approved, six were actually nominated in the President’s last year.
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Those two that were rejected were blocked by a single vote: Lyndon Johnson’s recommendation of Associate Supreme Court Justice
Abe Fortas to become Chief Justice was filibustered, which blocked the nomination of Homer Thornberry to fill Fortas’ seat. Note that while the Fortas elevation to Chief Justice was blocked (it was even filibustered), the Senate had not refused to hold hearings, and indeed it proceeded in normal order throughout the process.
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In addition to these nine appointments that were approved in the final year of a President’s term, there were also two appointments that were made and approved after the election which selected the replacement for the President who nominated them:
- Justice William Burnham Woods was named to the Court on December 21, 1880 by President Rutherford Hayes, more than a month after the 1880 election (Hayes had declined to run for reelection).
- In the nineteenth century, new presidents were not sworn in until sometime in March. Justice Howell Edmunds Jackson was nominated by President Benjamin Harrison on February 2, 1893 after Harrison had lost the 1892 election, and was approved unanimously by the Senate, sixteen days later.
There is no justification, and no precedent, for a Senate refusing to hold hearings or votes on SCOTUS nominees, even in a president’s last term – and even in the lame duck case of a nomination made after the election that chose a president’s successor. Since the Civil War, Senates have overwhelmingly approved of those nominations, and the nominees have been seated on the Court.