This morning I saw this tweet:
.@kellyannePolls tells me this is the first time since 1881 that a President has had a #SCOTUS justice confirmed in first 100 days.
Katie Couric, of course, is a famous television personality. Although she does not have a journalism degree, many people would say she was a journalist. Ms. Couric agrees. Indeed, Ms. Couric's website says she is "the most insightful interviewer in journalism." However, the website does not say how it was determined that Ms. Couric's interviews are the most full of insight. That leads one to wonder how thoroughly the insight amounts of all the journalists were measured. I suspect the study was not peer reviewed.
On one level Ms Couric's tweet presents a fact. Specifically, that Kellyanne Conway told Ms. Couric that that President Trump is the first president since 1881 to have Supreme Court justice confirmed within the president's first 100 days in office. The fact that Ms. Conway said this is verifiable because one can watch the interview on Ms. Couric's website.
I do not wish to wade into the issue of President Trump's appointment of Justice Gorsuch too much. But it seems fair to point out that a lot of very strange things had to happen in order for Justice Gorsuch to be appointed to the Supreme Court. First, the Senate had to refuse to hold any hearings, to say nothing of a confirmation vote, on President Obama's March 16, 2016, nomination of Judge Merrick Garland. Then, the Senate had change its own rules on whether Supreme Court justices could be filibustered. Only after these things happened was Justice Gorsuch confirmed to a Supreme Court seat that had, by that point, been vacant over a year. However, Ms. Couric did not ask Ms. Conway about any of these strange things. Maybe Ms. Couric thought it would be rude to mention that stuff and that a rude interview ≠ an insightful interview.
But wouldn't an insightful interviewer ask for some sort of data by which the viewer can determine the significance and veracity of Ms. Conway's statement? One might think that would be an insightful thing to do. But, given that Ms. Couric did not ask for data, one would wrong. After all if the most insightful interviewer in journalism does not ask a particular question, it stands to reason that the question will not yield any insight.
Still, I really did want to know how often a president has had the chance to place someone on the Supreme Court within 100 days of taking office. So, I looked it up. First I used this this handy list on the United States Senate website, to see when the Senate had confirmed people nominated to the Supreme Court. Then, I looked at the Supreme Court Historical Society's website to see when predecessor justice left office and when the president at the time nominated a replacement.
In 1881 we actually had two president who put in their first 100 days in office. James A. Garfield was president from March to September when he died from wounds incurred in an assassination attempt. Chester A. Arthur served out the remainder of President Garfield's term. It may surprise you to learn that both President Garfield and President Arthur had a Supreme Court justice confirmed within 100 days of taking office. President Garfield's nominee Stanley Matthews was confirmed roughly two months after President Garfield took the oath of office. Interestingly, Justice Matthews was originally nominated by President Rutherford B. Hayes at the end of his time in office but the Senate did not act on the nomination. President Garfield renominated Justice Matthews rather than pick a different nominee. President Arthur nominated Horace Gray to the Supreme Court on President Arthur's 90th day in office and Justice Gray was confirmed the very next day! Things were simpler then, I guess.
24 men have served as President since President Arthur's term ended. Of those 24, how many had a Supreme Court vacancy within their first 100 days in office? Not very many; including President Trump, only five presidents have had a Supreme Court vacancy within 100 days of assuming office. The other four presidents are: Benjamin Harrison, Theodore Roosevelt, Warren Harding, and Harry Truman. At the bottom of this post is a chart by which one can see my work in terms of identifying the five presidents. The chart, of course, is also based on the two websites I mentioned.
Interestingly, it turns out that what Ms. Conway told Ms. Couric is not true. President Trump is not the first president since 1881 to have a Supreme Court justice confirmed within the president's first 100 days in office. Theodore Roosevelt's appointment of Oliver Wendell Holmes, Jr., was confirmed within 100 day of President Roosevelt taking office in 1901. So we need to modify Ms. Conway's claim from the first since 1881 to the first since 1901. 1901 is still a long time ago. But it knocks our total number of possible presidential nominations down to 19. So, since William Taft took over the presidency from Theodore Roosevelt, how many presidents had to fill a Supreme Court vacancy within 100 days of taking office?
It turns out that Warren Harding and Harry S. Truman both had vacancies on the Supreme Court within 100 days of taking office. But neither President Harding nor President Truman had to fill a vacancy immediately on taking office. Instead, President Harding's vacancy came about on the 76th day he was in office and President Truman's occurred on his 90th day in office. President Harding did not nominate a replacement until his 118th day in office. President Truman waited until his 163rd day in office to nominate a replacement. Accordingly, while it is true that President Trump is the only president to have a Supreme Court seat filled since 1901, he is also the only president to have tried to do so.
Put another way, Ms. Conway's sample size for measuring President Trump's performance in getting Justice Gorsuch confirmed, is a sample of one. I guess one might say that President Trump is both the best and the worst at getting justices confirmed within 100 days of taking office. In any event, it seems to me that an insightful interviewer would have asked Ms. Conway about her data. After all, context typically matters when it comes to facts.
What do you think Mr. Torvik? Were Presidents Truman and Harding "low energy" for not getting their nominations in and confirmed by the Senate within their first 100 days in office? Should Ms. Couric have asked Ms. Conway to explain the significance of her (inaccurate claim)? More importantly, wouldn't an insightful interviewer ask Ms. Conway how long it will take President Trump to correct his inexplicable failure to name us to the federal bench?
Here is a chart you can use to see what presidents had a Supreme Court vacancy to fill within 100 days of assuming office.
President and first year in office
|
Supreme Court vacancy within first 100 days?
|
Replacement confirmation within 100 days?
|
Grover Cleveland 1885
|
No
|
Not applicable
|
Benjamin Harrison 1889
|
Yes, Stanley
Matthews died on President Harrison’s 18th day in office.
|
No, David Brewer not
nominated until December 1889.
|
Grover Cleveland 1893
|
No
|
Not applicable
|
William McKinley 1897
|
No
|
Not applicable
|
Theodore Roosevelt 1901
|
Yes, Horace
Gray died the day after Roosevelt took office.
|
Yes, Oliver Wendell Holmes, Jr. was confirmed on Roosevelt’s
81st day in office.
|
William Taft 1909
|
No
|
Not applicable
|
Woodrow Wilson 1913
|
No
|
Not applicable
|
Warren Harding 1921
|
Yes, Edward White
died Harding’s 76th day in office.
|
No, William Taft not
nominated until June 30, 1921
|
Calvin Coolidge 1923
|
No
|
Not applicable
|
Herbert Hoover 1929
|
No
|
Not applicable
|
Franklin Roosevelt 1933
|
No
|
Not applicable
|
Harry Truman 1945
|
Yes, Owen
Roberts retired on Truman’s 90th day in office
|
No, Harold Burton not
nominated until September 22, 1945.
|
Dwight Eisenhower 1953
|
No
|
Not applicable
|
John Kennedy 1961
|
No
|
Not applicable
|
Lyndon Johnson 1963
|
No
|
Not applicable
|
Richard Nixon 1969
|
No
|
Not applicable
|
Gerald Ford 1974
|
No
|
Not applicable
|
Jimmy Carter 1977
|
No
|
Not applicable
|
Ronald Reagan 1981
|
No
|
Not applicable
|
George H.W. Bush 1989
|
No
|
Not applicable
|
Bill Clinton 1993
|
No
|
Not applicable
|
George W. Bush 2001
|
No
|
Not applicable
|
Barack Obama 2009
|
No
|
Not applicable
|
Donald Trump 2017
|
Yes
|
Yes
|
One reason why there aren't a lot of open seats during the first 100 days of a presidency is that absent a death in office, a justice is probably going to retire in late June, at the end of a Supreme Court term. June, of course, is more than 100 days after inauguration day in January.
Interesting research. It seems pretty obvious that Conway is grasping at straws to come up with something to brag about.
ReplyDeleteAs long as were on the topic, we've never really discussed this whole recent Supreme Court vacancy controversy. What are you thoughts about what down — do you consider it a "stolen seat"?