The death of Justice Ruth Bader Ginsburg on September 18, 2020, created a vacancy on the Supreme Court during a presidential election year. This is the 14th such vacancy on the Court that has occurred during a presidential election year from 1789 to 2020 and that also occurred prior to the election date itself. Information and analysis related to these 14 vacancies are presented below.
The following election-year vacancies on the Supreme Court fall outside the scope of this Insight: (1) four vacancies that arose during presidential election years but occurred after the general election date; (2) eight vacancies that arose during the year prior to a presidential election year and still existed, for at least some period of time, during the election year itself; (3) two anticipated future vacancies on the Court that occurred in 1968 (i.e., vacancies that did not exist when President Johnson submitted nominations to the Senate); and (4) six initial vacancies on the Court when it was first established by Congress in 1789. Information about these vacancies is available from the author upon request by congressional readers.
For comprehensive analysis of the Supreme Court nomination and confirmation process, see CRS Report R44235 (addressing the selection of a nominee by a President), CRS Report R44236 (addressing the role of the Senate Judiciary Committee in processing nominations), and CRS Report R44234 (addressing Senate debate and final action on nominations).
Some Senators have called for the Ginsburg vacancy to be filled after the inauguration of the winner of the presidential election on November 3, 2020. Other Senators have called on the Senate to consider President Trump’s nominee for the vacancy, Judge Amy Coney Barrett, prior to the election. This Insight does not take a position as to when the Senate should confirm a nominee to the Ginsburg vacancy.
“Supreme Court Vacancies That Occurred During Presidential Election Years (1789-2020),” CRS Insight IN11514, October 1, 2020 (7-page PDF)
“Supreme Disorder: Judicial Nominations and the Politics of America’s Highest Court,” by Ilya Shapiro
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