The U.S. Supreme Court Vacancy
Article II, Section 2 of the Constitution clearly states that the President “shall nominate, and by and with
the Advice and Consent of the Senate, shall appoint… Judges of the supreme Court.” On February 24,
the nation’s most preeminent constitutional law scholars urged the President and the Senate to fulfill
their constitutional duties in an open letter. In this letter, these experts note that “(t)here is no
exception to [Article II, Section 2] for election years. Throughout American history, presidents have
nominated individuals to fill vacancies during the last year of their terms.”
In regards to the Senate’s role, the scholars continue, “(l)ikewise, the Senate’s constitutional duty to
‘advise and consent’ – the process that has come to include hearings, committee votes, and floor votes –
has no exception for election years. In fact, over the course of American history, there have been 24
instances in which presidents in the last year of a term have nominated individuals for the Supreme
Court and the Senate confirmed 21 of these nominees.”
Resources:
 ACS Supreme Court Vacancy Webpage: www.acslaw.org/scotus
 ACSblog: www.acslaw.org/acsblog
 Constitutional Law Scholars Open Letter (February 24, 2016):
http://www.acslaw.org/ConLawLetter
 Second Amendment Scholars Open Letter (March 31,2016):
http://www.acslaw.org/2ndAmendLetter
 Federal Judicial Vacancy Resources: www.judicialnominations.org
About the U.S. Supreme Court Nominee
Merrick B. Garland currently serves as the Chief Judge of the U.S. Court of Appeals for the District of
Columbia Circuit. He was nominated by President Bill Clinton to serve on the D.C. Circuit on January 7,
1997, and was confirmed by the Senate on March 19, 1997, by a 76-23 vote. He became Chief Judge on
February 12, 2013.
Prior to his confirmation to the Circuit Court, Chief Judge Garland served as Principal Associate Deputy
U.S. Attorney General from 1994 to 1997, after serving one year as the Deputy Assistant U.S. Attorney in
the Criminal Prosecutions Division of the U.S. Department of Justice. From 1989 to 1992, he was the
Assistant U.S. Attorney for the District of Columbia. Chief Judge Garland worked at Arnold & Porter from
1981 to 1989, and was named a partner in 1985. He also taught antitrust law at Harvard Law School in
1986. Between 1979 and 1981, he was the Special Assistant U.S. Attorney General in the U.S.
Department of Justice. Chief Judge Garland clerked for U.S. Supreme Court Associate Justice William J.
Brennan, Jr. from 1978 to 1979, and for Judge Henry Friendly in the U.S. Court of Appeals for the Second
Circuit from 1977 to 1978. A native of Chicago, Illinois, he received his undergraduate degree from
Harvard College in 1974, and his J.D. from Harvard Law School in 1977.
For more information about Chief Judge Garland, visit the White House’s Supreme Court webpage:
www.whitehouse.gov/scotus.
10/19/2016
Talking Points about U.S. Supreme Court Nominations and Confirmations
Since the 1980s, every person appointed to the Supreme Court has been given a prompt hearing and up-ordown vote within 100 days.
 The last four Supreme Court Justices, spanning two Administrations, were confirmed in an average of
75 days.
 Over the past two decades, even the longest confirmation process took only 99 days.
Justice
Nomination
Date
Confirmation
Date
Justice Elena Kagan
Justice Sonia Sotomayor
Justice Samuel Alito
Chief Justice John Roberts
5/10/2010
6/1/2009
11/10/2005
7/29/2005
Justice Stephen Breyer
Justice Ruth Bader Ginsburg
Justice Clarence Thomas
Justice David Souter
Justice Anthony Kennedy
Justice Antonin Scalia
Chief Justice William Rehnquist
Justice Sandra Day O’Connor
5/17/1994
6/14/1993
7/8/1991
7/25/1990
11/30/1987
6/24/1986
6/20/1986
8/19/1981
8/5/2010
8/6/2009
1/31/2006
9/29/2005 (time nominated to be Associate
Justice to confirmed as Chief Justice)
7/29/1994
8/3/1993
10/15/1991
10/2/1990
2/3/1988
9/17/1986
9/17/1986 (confirmed as Chief Justice)
9/21/1981
Days from
Nomination to
Confirmation
87
66
82
62
73
50
99
69
65
85
89
33
Source: http://www.senate.gov/pagelayout/reference/nominations/Nominations.htm
There is ample time for the Senate to hold a fair hearing and timely vote on a Supreme Court nominee.
Indeed, there are nearly 100 days left before the end of the President Obama’s term in office.
It would be irresponsible and unprecedented for the Senate to fail to act.
 If the Senate does not confirm a new Supreme Court Justice, the Supreme Court will go two terms –
well over a year – with a vacancy. This would be unprecedented for the modern Supreme Court.
 Since the 1980s, the Senate has rarely left any seat vacant during a single Supreme Court session.
 A vacancy has not lasted longer than 4 months while the Court has been in session.
Claims that there is no precedent for confirming Supreme Court nominees in an election year are
unfounded. Even when the Senate is not controlled by the President’s party, Supreme Court Justices have
been considered and confirmed by the Senate.
 Since the 1900s, six Justices have been confirmed in presidential election years, including three
Republican appointees.
President
Senate
Majority
Incumbent (Reason for
Vacancy)
Justice
Nominated
Confirmed
(Vote)
Ronald Reagan (R)
D
Franklin D. Roosevelt (D)
D
Justice Anthony
Kennedy
Justice Frank Murphy
11/30/198
7
1/4/1940
Herbert Hoover (R)
R
D
Woodrow Wilson (D)
D
Justice Benjamin
Cardozo
Justice Louis
Brandeis
Justice John Clarke
2/15/1932
Woodrow Wilson (D)
William Howard Taft (R)
R
Justice Lewis F. Powell
(Retired)
Justice Pierce Butler
(Died)
Justice Oliver Wendell
Holmes (Retired)
Justice Joseph Rucker
Lamar (Died)
Chief Justice Charles
Evans Hughes (Resigned)
Justice John Marshall
Harlan (Died)
Justice Mahlon
Pitney
2/19/1912
2/3/1988
(97-0)
1/16/1940
(Voice Vote)
2/24/1932
(Voice Vote)
6/1/1916
(47-22)
7/24/1916
(Voice Vote)
3/13/1912
(50-26)
1/28/1916
7/14/1916
Source: http://www.scotusblog.com/2016/02/supreme-court-vacancies-in-presidential-election-years/;
http://www.senate.gov/pagelayout/reference/nominations/Nominations.htm
Days from
Nomination to
Confirmation
65
12
9
125
10
23

The previous 12 times the Senate confirmed a Supreme Court Justice nominated by a president of
the opposite party it was the Democrats who confirmed a Republican nominee.
President
Senate
Majority
Incumbent (Reason)
Justice
Nominated
Confirmed
Days from
Nomination to
Confirmation
George H.W. Bush (R)
D
Justice Thurgood
Marshall (Retired)
Justice Clarence
Thomas
7/8/1991
10/15/1991
99
George H.W. Bush (R)
D
Justice William J.
Brennan (Retired)
Justice David Souter
7/25/1990
10/2/1990
69
Ronald Reagan (R)
D
Justice Lewis Powell
(Retired)
Justice Anthony
Kennedy
11/30/1987
2/3/1988
65
Gerald Ford (R)
D
Justice John Paul
Stevens
11/28/1975
12/17/1975
19
Richard Nixon (R)
D
Justice William O.
Douglas (Retired)
Justice John
Marshall Harlan II
(Retired)
Justice William
Rehnquist
10/22/1971
12/10/1971
49
Richard Nixon (R)
D
Justice Hugo Black
(Retired)
Justice Lewis Powell
10/22/1971
12/6/1971
45
Richard Nixon (R)
D
Justice Abe Fortas
(Resigned)
Justice Harry
Blackmun
4/15/1970
5/12/1970
27
Richard Nixon (R)
D
Justice Earl Warren
(Retired)
Chief Justice Warren
Burger
5/23/1969
6/9/1969
17
Dwight Eisenhower (R)
D
Justice Harold H.
Burton (Retired)
Justice Potter Stewart
1/17/1959
(recess
appt in
1958)
5/5/1959
108
Dwight Eisenhower (R)
D
Justice Stanley F.
Reed (Retired)
Justice Charles
Whitaker
3/2/1957
3/19/1957
17
Dwight Eisenhower (R)
D
Justice Sherman
Minton (Retired)
Justice William
Brennan
1/14/1957
(recess
appt in
1956)
3/19/1957
64
Dwight Eisenhower (R)
D
Justice Robert H.
Jackson (Died)
Justice John Marshall
Harlan
1/10/1955
3/16/1955
65
Source: http://www.senate.gov/pagelayout/reference/nominations/Nominations.htm
The Senate’s refusal to act undermined the judicial branch by leaving the Supreme Court to function with
eight Justices for the final months of the 2015 term and potentially the next term.
 The Supreme Court cannot resolve split decisions by the U.S. Courts of Appeals, resulting in the same
federal law having different meaning in different parts of the county.
 Since the Supreme Court seat became vacant in February 2016, the Supreme Court has become a
shadow of its former self. In a number of important cases it has failed to resolve the critical legal
questions before it, instead remanding them back to the lower courts or issuing 4-4 opinions that
leave lower court decisions intact. It also has granted cert in fewer cases for the upcoming Supreme
Court Term than at the same point in time in previous years.