A Vacancy on the Court


Elena Kagan constituted President Obama's second appointment to the Court, the first being Sonia Sotomayor. Both represent milestones for the Court, Sotomayor being the first Hispanic and Kagan marking the first time three women will sit on the Court at the same time. Neither, however, fundamentally changes the underlying philosophical structure of Court. The most critical appointment this decade was President Bush's replacement of Justice O'Connor with Samuel Alito, a solid conservative supplanting the pivotal Sandra O'Connor, insuring more frequent conservative outcomes in 5-4 decisions. The middle position relinquished by O'Connor passed to Anthony Kennedy, who joins with the usual conservative bloc of Roberts, Scalia, Thomas, and Alito more often than not—9 out of 12 occasions in 2009-10 in which a 5-4 vote divided the conservative bloc from the more liberal bloc of Stevens, Ginsburg, Breyer, and Sotomayor. In the 2010 term, Kennedy was 10 of 14, in 2011 8 of 14 (with Kagan replacing Stevens in the liberal bloc), in 2012 12 of 18, and in 2013 5 of 8.

What has eluded the Republicans since the presidency of Richard Nixon, however, 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. The Republican opportunity has passed for the moment, though Democratic control of the presidency and the Senate has only afforded the Democrats an opportunity to partly refresh an aging liberal bloc on the Court. Should the Democrats have an opportunity to replace any from the conservative bloc, including Anthony Kennedy, then the pendulum of Court decisions may begin to move back towards a more politically liberal perspective on certain constitutional and legislative issues.

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. Despite substantial Republican opposition, he did just that. However, the potential for controversy in the nomination setting has increased for Obama since the Republicans have increased their numbers in the Senate from the 41 prior to 2011, currently holding 45 seats, with 41 being the magic number for a successful filibuster. The three oldest justices are one liberal (Ginsburg), one conservative (Scalia), and the switch-hitting Kennedy himself. See "The Court" blog for my take on the upcoming election. You can be sure that any vacancy which affords the opportunity to alter the current conservative advantage on the Court will generate a strong partisan battle in the Senate.

What Obama needs, of course, to make any changes to the Court are vacancies. Justices do not serve at the pleasure of the president, 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. Click on the Vacancy link for an exploration of motivations in retiring, or not retiring, and for an assessment of the current justices and the potential for their departure in the first term of the new president. 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: September 15, 2014