A Vacancy on the Court

Welcome

Make no mistake, Supreme Court appointments are always political, and both sides know how to play. Even before the funeral of Justice Antonin Scalia, Senate Majority Leader Mitch McConnell served up the latest version of the Supreme Court appointments game by saying the Senate would not consider any nomination forthcoming from President Obama, that "the American people ... should be afforded the opportunity to replace Justice Scalia." A basic strategy of the game is to cloak one's own political motivations as apolitical actions in the public interest and to paint any contrary actions of the opposition as pure politics. McConnell sought to alert potential Repubulican voters that Democrats would re-establish a liberal activist Court. President Obama responded by nominating Judge Merrick Garland to fill the vacancy. By so doing, the Democrats hoped to portray the Republicans as obstructionists who will turn down one of the more respected and qualified jurists in the Circuit Court system, a stance designed to benefit the Democrats in Election 2016. The issue got some play in the campaign, though it was not pivotal.

The irony in the presidential contest is that the American people preferred Hillary Clinton to make the appointment, in the sense that her vote tally was greater than that of Donald Trump. But the quirks of the Electoral College handed the election to the runner-up, Donald Trump. It seems unlikely that McConnell will suggest that Clinton should be able to submit the nomination or that the Senate will take up Obama's nomination.

What has eluded the Republicans since the presidency of Richard Nixon is the creation of a solid conservative majority on the Court, despite having had thirteen appointments to the Court in that time compared to only four for Democratic presidents. Similarly, the Democrats have failed to change the balance on the Court ever since Richard Nixon took advantage of Lyndon Johnson's misadventures with Count vacancies to transform the liberal Warren Court into the much more conservative Burger Court. Of the three Democratic presidents since 1970, one had no vacancies to fill (Carter) and the four appointments of Clinton and Obama did little more than refresh the liberal bloc. Now that the Republicans have regained the presidency and maintained control of the Senate, they can keep trying to establish that solid majority.

President Trump comes into office with the power to appoint virtually anyone to the Court who could be characterized as meeting the rather vague and shifting standards for being a justice. This initial appointment can only establish the status quo ante, creating a 4-4 ideological split on the Court with Justice Kennedy occupying the swing position of the median justice. Vacancies do not arise at the president's pleasure and few justices over the years have shown much tendency to retire merely to accommodate the political agenda of the party in power, even when it may be their own party. Click on the Vacancy link for an exploration of motivations in retiring or not retiring. Go to the President page for a look at how presidents address vacancies and subsequent nominations.

This site has been created to help citizens, students, journalists, academics, and politicians alike understand and anticipate the Supreme Court appointment process as it unfolds. The links to the left walk you through the different stages of the vacancy, nomination, and confirmation processes. Please feel free to make suggestions about how this site can better serve any of you by submitting comments from the FAQS page. Also, consult the FAQs page for answers about questions involving the current situation. Substantial changes and additions will be made to this site now that two vacancies on the Court have occurred. Please check back periodically for new information.

Last update: November 16, 2016