Reprinted from The Nation
On September 7, 1956, US Supreme Court Justice Sherman Minton penned a note to President Dwight Eisenhower. Minton, a former Democratic senator from Indiana who had been appointed to the Court by President Harry Truman, was in ailing health. He informed the president that he was retiring from the Court. Eisenhower responded with a note expressing his hope that Minton would enjoy his time off.
Justice Brennan took his place on the bench immediately.
That was that.
And that is a part of the history of how Supreme Court vacancies are filled in election years.
Recess appointments are rare (although Eisenhower also made initial appointments of Chief Justice Earl Warren and Justice Potter Stewart during recesses in 1953 and 1958, respectively) and are eventually followed by post-recess, post-election nominations, and confirmations (as was the case with Warren, Stewart, and Brennan). But nominations and confirmations of new justices in election years are not particularly rare. Indeed, the authoritative Scotusblog notes, "The historical record does not reveal any instances since at least 1900 of the president failing to nominate and/or the Senate failing to confirm a nominee in a presidential election year because of the impending election. In that period, there were several nominations and confirmations of Justices during presidential election years."