Occurrences when a supreme court nominee (or potential nominee) was rejected by election timing

Question

When Barack Obama was president the Republican majority refused to vote on the appointment of Merrick Garland because of the close upcoming presidential election. This seems to have been coined as the McConnell Rule by the opposing Democrat minority.

Now that Justice Kennedy is retiring, Democrats are calling on McConnell to honor that same rule for the 2018 midterms.

There are many occurrences when the nominee has been rejected based off certain criteria. It seems like the occurrence most similar to the Garland/McConnell happened between LBJ and Nixon.

What I'm wondering is if there has been other occurrences when a SCOTUS nominee or more likely, a potential nominee had been disregarded based off of upcoming elections. In essence I'm wondering if the McConnell rule was really made by McConnell or if some variation had been previously used.

Answer 1

In Modern History: Kind of.

The "McConnell Rule" has its origins in the so-called "Thurmond Rule." Strom Thurmond blocked LBJ's appointment of Abe Fortas in 1968. As you hint in your OP, this isn't exactly the same situation because Fortas was already a Supreme Court Justice; it was his nomination to Chief Justice that was blocked.

Republicans call this McConnell Rule the "Biden Rule" after a floor speech given by Biden in 1992. Essentially, this called for a similar situation to the Thurmond rule: delay nominations until after November. One important difference here is that Biden was not speaking about any specific nominee, but a hypothetical, what-if scenario that did not actually occur in 1992.

Important to note that the so-called Thurmond Rule was said to apply to all Federal judge positions, not just the Supreme Court. While there is a slowdown of nominations in election years, nobody has been blocked by the application of the rule. Even the delaying of a judgeship is so rare that many questioned if this was a "rule" at all until McConnell blocked Merrick Garland.

The question becomes: if Thurmond didn't block a SC elevation and Biden didn't give a hypothetical speech on the Senate floor, would McConnell still have blocked Garland? I'm inclined to say yes, but that's an opinion and not a fact.

Answer 2

In 1992, Byron White was in ill-health and considering retirement. Joe Biden's speech may have caused him to delay his retirement until the end of the 1992-1993 term. This was also broadly true of Harry Blackmun.

Vox found six examples of justices rejected in presidential election years:

The first comes in 1844. John Tyler, who was elected vice president on the Whig ticket and became president on the death of President William H. Harrison, nominated three people — John C. Spencer, Reuben Walworth, and Edward King — to fill two vacancies on the Supreme Court. But none were accepted by the Senate. After the election, the Senate finally accepted another Tyler nominee, Samuel Nelson, to the high court. But the other vacancy wasn't filled until Tyler's Democratic successor, James K. Polk, took office.

Something very similar happened in 1852. President Millard Fillmore, who had been elected vice president on the Whig ticket and became president when President Zachary Taylor died, nominated Edward A. Bradford for the Supreme Court. But the Democratic Senate chose not to act on his nomination, and rejected two more nominees Fillmore submitted during his lame-duck period in 1853. Instead, the Democrats waited until Fillmore's Democratic successor, Franklin Pierce, took office in 1853. Pierce nominated John Campbell to the seat, and the Senate confirmed his nomination.

So the Biden rule was not new to the Democrats of 1992.

Applying such a rule to the midterms would be an escalation. Elena Kagan was nominated in 2010, a midterm election year. If they had waited until the new Senate was seated, she would not have had the votes for cloture. Blanche Lincoln, Evan Bayh, Byron Dorgan, Arlen Specter, and Russ Feingold voted for her and were replaced with Republicans who would have voted against her. Only Scott Brown was replaced with a Democrat who would have voted for her. Roland Burris and Judd Gregg were also replaced. It's unclear how their more moderate replacements would have voted. But she only passed 63-37. The 59 votes would not have been enough. John McCain may switched due to the Gang of 14 agreement, but either Mark Kirk or Kelly Ayotte might have voted no.

That said, candidate Wheeler H. Peckham was rejected in 1894. But Edward D. White was confirmed that same year. John J. Parker was rejected in 1930, but Owen Roberts was confirmed that same year. G. Harold Carswell was rejected in 1970, but Harry Blackmun was confirmed the same year.

Wikipedia has a complete list of nominations if you wish to look for yourself.

Answer 3

There are several moving parts here that need consideration. Merrick is the only one with election timing but there's a long history here running up to him.

Democrats blocked Robert Bork

The reason we have a Kennedy retirement now is that Robert Bork (Reagan's first pick in 1987) was blocked by Democrats. While some point to his role in Nixon's firing of a special prosecutor during Watergate (Bork would appoint another to replace him), many considered the block to be on partisan grounds, especially considering the fiery speech given by Ted Kennedy on the Senate floor

Robert Bork's America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens for whom the judiciary is—and is often the only—protector of the individual rights that are the heart of our democracy ... President Reagan is still our president. But he should not be able to reach out from the muck of Irangate, reach into the muck of Watergate and impose his reactionary vision of the Constitution on the Supreme Court and the next generation of Americans. No justice would be better than this injustice.

Democrats rail against Clarence Thomas

Clarence Thomas would face even more dire circumstances than Bork. After a leak of an FBI inquiry, Anita Hill, a former colleague of Thomas, testified dramatically in front of the Senate that Thomas had sexually harassed her. Without any corroboration, many Senators did not believe her. Thomas won confirmation narrowly, 52-48

Joe Biden's 1992 speech, demanding no more nominations be made by Bush(41) until after the election

This speech, made after the contentious Thomas hearings, called for no more nominations in an election year. This is why many refer to the policy as the "Biden rule". Biden would not get a chance to use it, as Bush lost reelection to Bill Clinton and no more nominations would be made that year.

Democrats had filibustered Bush(43) appellate nominees

Democrats found themselves out of power from 2002-2006 and so they began to filibuster appellate nominees, most notably Miguel Estrada, who was filibustered for 6 months, and languished for 28 months in total. Wikipedia notes

Numerous judicial nominees prior to Estrada had been kept off the courts, when the Senate refused to let the nomination out of committee for a floor vote. A filibuster had been used in 1968 to extend debate regarding the elevation of Associate Justice Abe Fortas to Chief Justice of the United States, but the Estrada filibuster was different in multiple ways. Estrada's was the first filibuster ever to be successfully used against a judicial nominee who had clear support of the majority in the Senate. Estrada's was the first filibuster of any court of appeals nominee. It was also the first filibuster that prevented a judicial nominee from joining a court.

Democrats engaged in a symbolic filibuster of Samuel Alito (2007)

Samuel Alito, whose nomination was quite contentious, faced a symbolic filibuster. The filibuster failed 72-25, but included many notable Democrats, including then-Senator Barak Obama.

Charles Schumer vowed to filibuster any further Bush(43) SCOTUS nominees

This video came back to haunt Schumer

Democrats went nuclear to stack the DC Circuit

In 2013, facing several challenges to Obamacare winding their way through the courts, Senate Majority leader Harry Reid and President Obama put forth three nominees to fill the three vacancies on the circuit (the least busy court on the appellate level). Republicans, using the same tactic Democrats had employed, filibustered all three. Harry Reid then invoked the so-called Nuclear Option, removing filibusters for cabinet and judicial nominees below the Supreme Court level.

The three vacancies were confirmed without further incident, although Carl Levin, a retiring Democrat, railed against it, warning that Democrats would come to regret it.

The Merrick Garland nomination would have significantly changed the SCOTUS ideological makeup

Obama thought he could pull a "small shift" but even reports that painted him as a moderate had to admit it was still quite a shift

It wasn't surprising that a still-fresh Republican majority blocked him.