deadlock the Senate. The lame-duck Democratic Senate confirmed William Woods, a Republican nominated by outgoing Republican president Rutherford B. Hayes, but when a second vacancy opened in January, they left that seat open for the incoming president (James Garfield, another Republican).



‐In October 1956, Republican president Dwight Eisenhower made a recess appointment of William Brennan, a liberal Democrat. Eisenhower went on to win a landslide reelection, and in January, the Democratic Senate confirmed Brennan.

By contrast, the Scalia vacancy was the seventh time that the Senate has held a Supreme Court vacancy open rather than confirm an election-year nominee. Besides Obama, and the Tyler and Hayes cases mentioned above, this happened to John Quincy Adams, Millard Fillmore, James Buchanan, and Lyndon Johnson. In all these cases but Hayes’s, the failureto confirm meant that a president of a different party would make the nomination; in all but LBJ’s and Tyler’s, the incoming president would be from the same party that controlled the outgoing Senate. The Republican Congress went even further when Andrew Johnson was president: It eliminated Supreme Court seats as they became vacant, then restored them to be filled by the next Republican president. Johnson had made one nomination to a vacant seat, but the new law nullified it.

By contrast, nine election-year nominees and five post–Election Day nominees have been confirmed by the Senate when its majority was of the same party as the president. Only one president, Lyndon Johnson, has had a nominee rejected in this situation. In other words, as you’d expect, election-year nominations to