The Scalia Vacancy in Historical Context: Frequently Asked Questions
Released: 2017-03-01T00:00:00

Introduction

The procedure for appointing a Justice to the Supreme Court of the United States is provided for by the Constitution in only a few words. The "Appointments Clause" (Article II, Section 2, clause 2) states that the President "shall nominate, and by and with the Advice and Consent of the Senate shall appoint ... Judges of the supreme Court." The process of appointing Justices has undergone changes over two centuries, but its most basic feature—the sharing of power between the President and Senate—has remained unchanged. To receive a lifetime appointment to the Court, a candidate must first be nominated by the President and then confirmed by the Senate.

The most recent vacancy on the Court was created by the death of Justice Antonin Scalia on February 13, 2016. In response, President Barack Obama on March 16, 2016, nominated Merrick B. Garland, a sitting judge on the U.S. Court of Appeals for the District of Columbia, to replace Justice Scalia. It was the 161 st nomination made by a President to the U.S. Supreme Court.

On the day of Justice Scalia's death, Majority Leader Mitch McConnell (R-KY) stated that the "American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new President." Additionally, Senator Chuck Grassley (R-IA), chairman of the Senate Judiciary Committee, stated "Given the huge divide in the country, ... it only makes sense that we defer to the American people who will elect a new president to select the next Supreme Court Justice."

In response, Minority Leader Harry Reid (D-NV) stated that "The president can and should send the Senate a nominee right away.... Failing to fill this vacancy would be a shameful abdication of one of the Senate's most essential Constitutional responsibilities." President Obama also weighed in on whether the Garland nomination should be considered by the Senate, asking that the Senate "give him a fair hearing and then an up or down vote," while also stating that "I have fulfilled my constitutional duty. Now it's time for the Senate to do theirs."

The Garland nomination was not acted upon by the Senate (receiving neither a committee hearing nor a floor vote) and was not withdrawn by the President—making it the first Supreme Court nomination since 1866 for which no formal Senate action was taken and which was not subsequently withdrawn or resubmitted by a President. The nomination was ultimately returned to President Obama at the end of the 114 th Congress, on January 3, 2017. On February 1, 2017, President Donald Trump nominated Neil M. Gorsuch, a sitting judge on the U.S. Court of Appeals for the Tenth Circuit, to fill the Scalia vacancy. The Gorsuch nomination, the 162 nd to the Court, is currently pending before the Senate.

This report provides analysis and historical information related to several of the prominent issues or questions surrounding the Scalia vacancy. The issues addressed by the report include (1) how frequently vacancies occur on the Supreme Court, particularly vacancies created by the death of a sitting Justice; (2) how the length of the Scalia vacancy compares to past vacancies on the Court (as well as how the length of time the Garland nomination was pending before the Senate compares to past nominations); (3) how often vacancies on the Court arise during presidential election years (as well as how often vacancies on the Court have rolled over into a presidential election year from a preceding year); (4) how often vacancies on the Court have arisen during one presidency but are filled during a different presidency; and (5) how often vacancies on the Court have required multiple nominations prior to the appointment of a new Justice.

How often does a vacancy occur on the Supreme Court?

Since President George Washington's initial six appointments to the Supreme Court in 1789 and 1790, a vacancy on the Court has occurred, on average, every two years. During the post-War period (1946 to the present), a vacancy on the Court has occurred, on average, every 2.4 years. In more recent years (since 1980), a vacancy has occurred, on average, slightly less frequently (every 3.1 years). The length of time, however, between the vacancy created by the retirement of Justice John Paul Stevens in 2010 and the vacancy created by Justice Scalia's death in 2016 is the fifth longest period of time between two vacancies ever occurring on the Court (specifically, 2,054 days, or 5.6 years, between the two vacancies occurring).

How often is a vacancy created on the Court by the death of a sitting Justice?

Under the Constitution, Justices on the Supreme Court hold office "during good Behaviour," in effect typically receiving lifetime appointments to the Court. Once confirmed, Justices may hold office for as long as they live or until they voluntarily step down.

Lifetime tenure, interesting work, and the prestige of the office often result in Justices choosing to serve on the Court for as long as possible. Consequently, it has not been unusual, historically, for Justices to die while in office. Specifically, of the 111 vacancies that have occurred on the Court during the past 225 years, from the first vacancy in 1791 to the vacancy created by Justice Antonin Scalia's death in 2016, 47 (or 42%) have arisen as the result of the death of a sitting Justice. Conversely, 64 (or 58%) of the vacancies since 1791 have occurred for some other reason (e.g., a new judgeship was created by Congress, a sitting Justice retired, or an Associate Justice was elevated to the Chief Justice position).

Over the past 60 years, however, it has been relatively rare for vacancies on the Court to be created by the death of a Justice. Of the 25 vacancies on the Court since 1956, the vacancy created by the passing of Justice Scalia is only the second instance during this period of a vacancy created by the death of a Justice. Specifically, from 1956 to 2016, 2 (or 8%) of 25 vacancies were attributable to the death of a sitting Justice on the Court. Prior to the deaths of Justice Scalia (in 2016) and Chief Justice Rehnquist (in 2005), the last sitting Justice to die while serving on the Court was Justice Robert Jackson (in 1954).

Prior to 1900, in contrast to more recent years, it was more common for vacancies to arise on the Court as a result of the death of a sitting Justice. Of the 51 vacancies on the Court that arose between 1791 and 1899, 30 (or 59%) arose in this manner. Additionally, of the 35 vacancies that occurred during approximately the first half of the 20 th century—from 1900 to 1955—15 (or 43%) of 35 arose as the result of the death of a Justice.

How does the length of the Scalia vacancy compare to the length of past vacancies on the Court?

On average, from the first vacancy that occurred in 1791 through the most recent vacancy filled in 2010 (by Elena Kagan), vacancies on the Supreme Court have lasted for 121 days (or approximately 4 months) before the Senate has approved a nominee (while the median length of time is 61 days, or 2 months, from a vacancy arising to a nominee being confirmed by the Senate).

There is considerable variation, however, in how long vacancies have lasted. Vacancies on the Court, for example, have ranged from a minimum of 1 day to a maximum of 835 days (or 2.3 years). In general, vacancies on the Court lasted for longer periods of time prior to the 20 th century than during the 20 th or 21 st centuries. For example, prior to 1900, vacancies lasted an average of 165 days, or 5.4 months (with a median length of time of 105 days, or 3.5 months). In contrast, since 1900, vacancies on the Court have lasted an average of 77 days, or 2.5 months (with a median length of time of 46 days, or 1.5 months).

As of March 1, 2017, the Scalia vacancy will have lasted for 382 days—making it currently the seventh longest vacancy in the history of the Court. Figure 3 shows the 10 longest vacancies to exist on the Supreme Court – 7 of which arose in the 1800s during the Civil War era or earlier. The Scalia vacancy is the longest of the 80 vacancies on the Court to have occurred since 1861. The one other vacancy since 1900 to be among the 10 longest vacancies on the Court is the vacancy created in 1969 by the resignation of Justice Abe Fortas, lasting 363 days (and which remains only one of two vacancies in the history of the Court for which the full Senate rejected two nominations in up-or-down votes on the floor).

How does the length of time the Garland nomination was pending for the Scalia vacancy compare to past nominations to the Court?

Of the 147 nominations made to the Court since 1791, the average length of time from nomination to final Senate action, whether such action was favorable or not in terms of approving the nomination, has been 28 days (while the median length of time to final action has been 12 days).

There has been variation over time in how quickly nominations have been dispensed with, either favorably or unfavorably, by the Senate. For example, prior to 1900, nominations waited an average of 18 days for final Senate action (with a median wait time of 6 days). In contrast, since 1956, nominations have waited an average of 67 days for final Senate action, or 2.2 months (with a median wait time of 65.5 days). Along these lines, Figure 3 shows the 10 longest nominations pending for a vacancy on the Supreme Court since 1791 to the present. Eight of the 10 nominations listed in the figure have been for vacancies that have occurred since 1956.

As discussed above, the Scalia vacancy is currently the seventh longest vacancy to exist on the Court. The first nomination submitted to fill the Scalia vacancy—the nomination of Judge Garland by President Obama—is the longest pending nomination for any Supreme Court vacancy since 1791. As shown by the figure, the Garland nomination was pending before the Senate for a total of 293 days (from March 13, 2016 to January 3, 2017). The current nomination to fill the Scalia vacancy, that of Judge Gorsuch, will have been pending, as of March 1, 2017, for 28 days in the Senate.

Six of the 10 nominations were not approved by the Senate (including two nominations that were rejected in up-or-down roll call votes on the floor). Four of the nominations were ultimately approved, with the longest-pending nomination that was confirmed as that of Louis Brandeis in 1916.

A relatively long-lasting vacancy does not necessarily mean that a nomination for the vacancy was pending in the Senate for a relatively long period of time. For example, the vacancy created by the death of Justice John McLean on April 4, 1861 lasted for 295 days, while the sole nomination for the vacancy—that of Noah H. Swayne by President Lincoln –was pending in the Senate for only 3 days prior to Mr. Swayne's confirmation.

Additionally, some relatively long vacancies might have multiple nominations, rather than a single nomination, that, when added together, might reflect a relatively long period of time. For example, the vacancy created by Justice Smith Thompson on December 18, 1843 lasted for 424 days, while the cumulative length of time the six nominations for the Thompson vacancy were pending before the Senate totaled 190 days.

How often have vacancies on the Supreme Court arisen during presidential election years?

Vacancies on the Supreme Court that have arisen during presidential election years have been relatively uncommon. There have been a total of 16 vacancies on the Supreme Court, out of a total of 111, that have arisen during a presidential election year (i.e., a Justice has retired, resigned, or died during the election year itself). Unlike the Scalia vacancy, however, 3 of these 16 vacancies occurred in the weeks after the general election, while another 4 vacancies arose prior to the election but did not have a nomination submitted by the President until after the election.

Consequently, since 1791, there have been a total of 9 vacancies (including the Scalia vacancy) to arise on the Court during a presidential election year in which (1) the vacancy occurred prior to the general election itself; and (2) the President also nominated an individual to fill the vacancy prior to the election. The Scalia vacancy is the first to occur since 1932 under these particular circumstances. These 9 vacancies, listed in Figure 4 , represent 8% of the vacancies on the Court to occur since 1791.

As shown by the figure, the Scalia vacancy is one of three for which the Senate did not approve a President's nominee for a vacancy that arose during a presidential election year prior to the election itself, and for which a President submitted a nomination prior to the election. The other two nominations that were not approved by the Senate were for vacancies that arose during presidential election years in the 19 th century (1844 and 1852).

Additionally, since the first vacancy in 1791, there have been nine vacancies on the Court during presidential election years in which the vacancy arose prior to the election year itself, i.e., the vacancy "rolled over" from a preceding year into the presidential election year.

For eight of the nine vacancies that rolled over into a presidential election year, the Senate confirmed a nomination during the election year itself. The most recent example of this type of vacancy was the vacancy created in 1987 by the retirement of Justice Powell (for which Anthony M. Kennedy was nominated on November 30, 1987 and confirmed the following year, on February 3, 1988).

There have also been anticipated vacancies on the Court during a presidential election year. For example, in 1968, President Johnson nominated Abe Fortas to be Chief Justice of the Supreme Court (in anticipation of the retirement of Chief Justice Earl Warren ) and Homer Thornberry to be an Associate Justice (in anticipation of the need to replace Fortas, who was already serving on the Court as an Associate Justice). After the Senate failed to invoke cloture on the Fortas nomination, President Johnson withdrew both nominations. Chief Justice Warren then did not step down from the Court until 1969 and, consequently, no vacancies existed on the Court in 1968.

How often have vacancies on the Supreme Court arisen during one presidency and been filled during a different presidency?

As shown by Figure 5 , there have been seven vacancies on the Supreme Court, prior to the Scalia vacancy, which arose during one presidency and were filled during a different administration. Such vacancies are relatively uncommon—the seven vacancies represent approximately 6% of all vacancies filled on the Court since 1791.

Prior to the Scalia vacancy, the last time a Supreme Court vacancy arose during one presidency and was filled during a different presidency was in 1881. The death of Justice Nathan Clifford created a vacancy on the Court on July 25 of that year—approximately two months later President Garfield was assassinated and the Clifford vacancy was eventually filled by his successor, President Arthur, on December 20, 1881.

Four of the seven vacancies (prior to the Scalia vacancy) shown in Figure 5 were filled by a President belonging to a different political party than the President who left office. Prior to the Scalia vacancy, the last time a Supreme Court vacancy arose during one presidency and was filled during a different administration— and for which the party of the new President was different than the party of the previous President (as with the Scalia vacancy)—was in 1862. The death of Justice Peter Daniel created a vacancy on May 31, 1860. While the vacancy arose during the final year of the Buchanan presidency in 1860, it was not filled until the second year of the Lincoln presidency in 1862 (and not until after the onset of the Civil War in 1861).

Three of the vacancies reported in Figure 5 occurred during the "Second Party System," a period from approximately 1828 to 1854 (in which the Whig Party was one of the major political parties). Five of the vacancies listed in the figure occurred during the "Modern Party System," a period from approximately 1854 to the present (the beginning of which coincides with the founding of the Republican Party).

Of the eight vacancies, the Scalia vacancy reflects the greatest number of days (among Supreme Court vacancies that arose during one presidency and were filled during a different presidency) from a vacancy occurring on the Court to when a President left office. Specifically, as shown by Figure 5 , 342 days elapsed from the Scalia vacancy occurring to when President Obama left office (followed by 317 days from the Baldwin vacancy occurring to the end of the Tyler presidency).

Most of the "departing Presidents" listed in the figure submitted a nomination for the respective vacancy that arose during each of their presidencies. Specifically, six of the eight Presidents, including President Obama, submitted a nomination to the Senate prior to departing (while two, Presidents Grant and Garfield, did not).

Note that the number of days reported for each vacancy in Figure 5 does not represent the total number of days each vacancy existed prior to being filled with the appointment of a new Justice. For example, the number of days from when the Baldwin vacancy occurred during the Tyler presidency to when he left office was 317 days (whereas the total number of days the vacancy lasted was 835 days). Similarly, the number of days from when the Scalia vacancy occurred during the Obama presidency to when he left office was 342 days (whereas, as of March 1, 2017, the vacancy will have lasted for a total of 382 days).

How many vacancies on the Supreme Court have had more than one nomination prior to being filled by the appointment of a new Justice?

Sometimes a vacancy on the Supreme Court is not filled after just a single nomination is submitted to the Senate. Instead, after an initial nomination is either rejected by the Senate, otherwise not acted upon by the Senate, or withdrawn by a President, one or more additional nominations might be made before the vacancy is filled by the appointment of a new Justice. Additionally, sometimes a nomination for an anticipated vacancy on the Court is unsuccessful (thus requiring at least one additional nomination).

Since 1791, there have been a total of 20 vacancies (representing approximately 19% of all vacancies on the Court) for which more than one nomination was made prior to the vacancy being filled by the appointment of a new Justice. The Scalia vacancy is the most recent vacancy on the Court requiring more than one nomination prior to being filled.

Figure 6 shows the 12 vacancies since 1860 (the first vacancy to occur after the start of the modern two-party system) that have required multiple nominations prior to the appointment of a new Justice on the Supreme Court. Six of the vacancies occurred between 1860 and 1899; one of the vacancies occurred between 1900 and 1955; and five of the vacancies occurred between 1956 and 2016.

As shown by the figure, six of the vacancies involved the Senate formally rejecting one or more nominations in a floor vote.

Four of the vacancies (actual or anticipated) involved the President withdrawing one or more nominations. In one case, the initial nominee whose nomination was approved by the Senate died before taking office (requiring President Grant to submit a second nomination for the Grier vacancy).

The Scalia vacancy is distinctive among the 12 vacancies in that it is the only vacancy to include a nomination which, pursuant to Senate rules, was returned to the President at the end of a congress after the Senate took no action to process the nomination.

Not surprisingly, as also shown by Figure 6 , vacancies requiring multiple nominations prior to being filled have generally lasted longer than the median length of a vacancy on the Court (i.e., longer than 61 days). Eight of the 11 vacancies lasted longer than 61 days, while 7 lasted at least 100 days. Additionally, 6 of the vacancies have lasted longer than the average length of a vacancy on the court (i.e., longer than 121 days).

The figure also shows that, for vacancies requiring more than one nomination prior to being filled, the nominee whose nomination is eventually approved by the Senate has generally received unanimous or nearly unanimous support at the time of confirmation (even after, in some cases, the Senate had narrowly rejected one or more previous nominations for the same vacancy). Four of the nominees were approved by voice vote. Of the remaining six nominees whose nominations received a roll call vote, three received zero nay votes; one received fewer than 5 nay votes; and another received fewer than 10 nay votes. The exception to this pattern was Samuel Alito (nominated to replace Sandra Day O'Connor), whose nomination received 42 nay votes in 2006.