A Vacancy on the Court


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. 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 hopes that the Republicans can parlay the Scalia vacancy into public fear that the Democrats will re-establish a liberal activist Court, making this a key issue in Election 2016 from which the Republicans can benefit. President Obama has now responded to this opening volley by nominating Judge Merrick Garland to fill the vacancy. By so doing, the Democrats hope 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 that will benefit the Democrats in Election 2016. Make no mistake, Supreme Court appointments are always political, and both sides know how to play.

So we now have a game the like of which has not been seen since the first part of the 19th century. Never in this modern era (post-Truman) has the conservative bloc of the Court been at stake with a liberal sitting in the White House. Fortunately for the conservatives, the Republicans have firm control of the Senate and President Obama is in the final year of his presidency. Therein, of course, lies the political intrigue and controversy. It's not just a question of who will be nominated but who will be doing the nominating and what collectivity of senators will be rendering their advice and consent. Click on the Garland Nomination link to follow along and click on The Court blog to get a quick take on the Senate Republican position.

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 turn 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 divided government has returned in the form of a Democratic president and a Republican Senate, the Scalia vacancy may not be filled until 2017.

President Obama came 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. But that favorable nomination setting has disappeared. Vacancies do not arise at the president's pleasure and few 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. Had Ginzburg retired while the Democrats still held the Senate, at least Obama could have renewed the liberal bloc. 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: March 16, 2016