By Dr. Elizabeth Keavney
Faculty Member, Public Administration, American Public University
With the confirmation of Judge Amy Coney Barrett to the Supreme Court this week, there were questions raised about the legitimacy, constitutionality and timeliness of her nomination. But in order to determine the truth of such claims, it is necessary to examine the Constitution and history.
The President and Senate Are Both Involved in Supreme Court Nominations
Article II, Section 2 of the United States Constitution states that the President is to make nominations to the Supreme Court with the advice and consent of the Senate. There is no mention of when this nomination can be done; the Constitution just says that the President is to make those nominations.
According to the United States Senate website, there have been 28 Supreme Court nominations in election years, including Judge Barrett’s. Excluding nominations made by Washington and Tyler, who had no party affiliation at the time of their election year nominations, nine were confirmed by a Senate controlled by the same party as the President; two were confirmed by a Senate controlled by a different party than the president; one was postponed and one was not voted on by a Senate controlled by a different party as the president. When determining how close to an election these nominations were made, it is important to remember that prior to 1845, states could hold elections whenever they wanted as long as it was within a 31-day period before the first Wednesday in December. It was in 1845 that Congress passed a law making the first Tuesday following the first Monday in November Election Day.
Traditionally, the Time Period for Supreme Court Nominee Confirmation Varies
Of the 27 Supreme Court nominations that have been resolved, 13 were confirmed, one was denied confirmation and five were allowed to lapse. Congress did not have to take any action on those nominees who withdrew their nomination or who declined the nomination.
The U.S. Senate table below shows that some nominees have been confirmed as quickly as one day. But it is more common for confirmations to take a few weeks and a few take longer.
President Tyler and His Supreme Court Nominations
Probably the most interesting situation was the one that President Tyler presented. Tyler became President after President William Henry Harrison died only a month after his inauguration.
After finding himself in opposition to his party’s agenda, he found he had very little support and had no success getting his Supreme Court nominees approved. The table below shows Reuben Walworth accounts for three of the 28 election year nominations and almost half of Tyler’s 1844 nominations.
Table 1
Source: United States Senate, 2020
Overall, the President may nominate someone to the Supreme Court to fill a vacancy at any time during his or her Presidency and Congress has precedent to confirm an appointment, deny confirmation, or allow the nomination to lapse as quickly as it desires. Generally, in election year nominations, a Senate of the same party as the President confirmed nominees.
About the Author
Dr. Elizabeth Keavney is retired from the public sector and is an associate professor at American Public University. She is concerned with people having a better understanding of how government works. Dr. Keavney holds a B.A. in communications from Quincy College, an M.P.A. in public policy and administration from California State University, and a Ph.D. in public policy and administration from Walden University.
