A One Year Supreme Court Vacancy is Not a First

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Justice Antonin Scalia’s seat on the U.S. Supreme Court may remain vacant until next year, but this is not a unique situation.

When Justice Abe Fortas resigned on May 14, 1969, it took 391 days to fill his seat. Justice Harry Blackmun finally joined the Court on June 9, 1970, after two nominees were appointed and failed to be confirmed. The vacancy was the longest in the post-Civil War era.

More recently, a 237-day vacancy followed the retirement of Lewis F. Powell Jr. in 1987. Justice Anthony Kennedy finally joined the Court after the Democratic Senate rejected President Ronald Reagan’s initial nominee, Robert Bork, and his second nominee withdrew. These vacancies, however, are outliers. The average time between a justice leaving the bench (via death, retirement, resignation or otherwise) and the installation of a replacement is 73 days.

While some Republicans have vowed to not even consider a nominee until the new President takes office, justices have been confirmed in previous election years. Anthony Kennedy was confirmed during an election year, although the vacancy arose earlier.

As recently detailed on SCOTUSblog, there are several other examples of election year vacancies, although none in the past several decades. On February 15, 1932, President Herbert Hoover nominated Benjamin Cardozo to replace Oliver Wendell Holmes, who retired on January 12, 1932.  The Senate confirmed Cardozo by a unanimous voice vote less than two weeks later. On January 4, 1940, President Franklin Roosevelt nominated Frank Murphy to fill the seat of Justice Pierce Butler, who died on November 16, 1939. The Senate confirmed the Murphy on January 16, 1940, by a voice vote.

In 1956, Republican Dwight Eisenhower announced his Supreme Court nominee just weeks before his reelection. Even though he also relied on his recess appointment power to put William Brennan on the bench, the Democratically-controlled Senate did not challenge the nomination. Eisenhower officially nominated Brennan after he started his second term in January of 1957, and Brennan was eventually confirmed in March.

Overall, justices that are qualified and relatively moderate are typically confirmed. From 1790 to the present, the Senate has confirmed 91 percent of the 129 Supreme Court nominees. Even though partisan politics can influence the confirmation process, over the last six decades, the Senate has confirmed 60 percent of the nominees appointed by a president of the opposing political party.

It is unclear if the Senate will continue to defer to the President and how long the current vacancy will last. The impact of the eight-member Court can be significant as we saw a few weeks ago in the Fredricks case.  The practical effect of a 4-4 split is that the lower court’s decision is affirmed without creating any new precedent. Due to the heightened risk of a tie, the Court may also take up fewer “landmark” cases involving key questions of constitutional law until a ninth member is confirmed.

Donald Scarinci is a managing partner at Lyndhurst, N.J. based law firm Scarinci Hollenbeck.  He is also the editor of the Constitutional Law Reporter and Government and Law blogs.

A One Year Supreme Court Vacancy is Not a First