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March 4, 2016

What Happens Next After the Death of Justice Scalia?

by WSBA
Justice Scalia's empty chair draped in black
Seattle attorney Shanna Lisberg ponders procedures and history in play to fill the open Supreme Court seat left by Justice Scalia.

Justice Scalia's empty chair draped in blackThe death of Justice Antonin Scalia on Feb. 13, 2016, set off many debates regarding his replacement nomination to the U.S. Supreme Court during an already intense election year.


Nomination and confirmation
Nomination and confirmation of Supreme Court justices are governed by Article 2 of the U.S. Constitution. Candidates are nominated by the president and face a series of hearings and interviews before the Senate Judiciary Committee. The Senate Judiciary Committee can vote to send the nomination to the Senate, which then must confirm the nominee. The nominee is then appointed to the Court by the president.

The Thurmond Rule
Democrats have urged President Barack Obama to waste no time in nominating Scalia’s successor. Senate Republicans have asserted they will not move forward with confirming a replacement until after the November 2016 presidential election. Depending on when President Obama makes a nomination, Republicans may rely on the informal Thurmond Rule, a rule named after the late Senator Strom Thurmond which states that new judicial nominations should not be taken up within a few months of a presidential election. However, history shows that, at least since 1900, there has been no instance when the president has failed to nominate or the Senate has failed to confirm a nominee in a presidential election year as a result of the coming election.

Has this situation happened before?
Since 1900, there have been several instances of nomination and confirmation of justices during presidential election years.

  • On Jan. 28, 1916, President Woodrow Wilson nominated Louis Brandeis to replace Joseph Rucker Lamar, who died on Jan. 2, 1916. Brandeis was confirmed on June 1, 1916.
  • On July 14, 1916, President Wilson nominated John Clarke to replace Charles Evans Hughes, who resigned from the Court. Clarke was confirmed on July 24, 1916.
  • On Jan. 4, 1940, President Franklin Roosevelt nominated Frank Murphy to replace Pierce Butler, who died on Nov. 16, 1939. Murphy was confirmed on Jan. 16, 1940.
  • On Nov. 30, 1987, President Ronald Reagan nominated Justice Anthony Kennedy to replace Louis Powell, who had retired. Kennedy was confirmed on Feb. 3, 1988.

In only two instances were presidents not able to nominate and confirm a justice during an election year.

  • On Oct. 15, 1956, Sherman Minton retired from the Court. As the Senate had already adjourned, President Dwight D. Eisenhower appointed William J. Brennan in a recess appointment. Brennan was not formally nominated and confirmed until 1957.
  • In 1968, President Lyndon B. Johnson sought to nominate Abe Fortas to succeed Chief Justice Earl Warren. Fortas was already an associate justice on the Court. Fortas’ nomination was filibustered, mainly due to ethical questions about Fortas and the Warren’s Court liberalism. Fortas was not confirmed as the chief justice; however, since Chief Justice Warren remained on the bench, the Court was never short a justice.

What if no nomination is confirmed?
It’s possible that our current Court may only have eight justices until sometime after the 2017 presidential inauguration, which would leave the Court incomplete for some 11 months, although in the past the Court has remained incomplete for a longer time.

  • In 1843, Smith Thompson died in office. President John Tyler tried and failed many times to nominate a candidate to fill the seat. President Tyler ultimately nominated Samuel Nelson on Feb. 4, 1845. Nelson was confirmed on Feb. 14, 1845.
  • In 1844, after Henry Baldwin died, President Tyler made two attempted appointments to the seat, but neither nominee was confirmed. The seat remained vacant when James K. Polk became president in 1845. President Polk made two nominations, one of which refused the appointment and one who was not confirmed. President Polk then nominated Robert Cooper Grier on Aug. 3, 1846. Grier was confirmed on Aug. 4, 1846.
  • In 1860, Justice Peter Daniel died. His seat was not filled until 1862 when Samuel Miller was nominated by President Abraham Lincoln. Here, the delay in nominating a new justice was attributed to the beginning of the Civil War.

According to the Congressional Research Service, since 1975 the average number of days from nomination to final Senate vote is 67 days, while the median is 71 days.

If Scalia’s seat is left vacant for a prolonged time, this raises the possibility of deadlocked four-to-four rulings. For cases that were not decided before Justice Scalia’s death, Justice Scalia’s vote will not be counted. Although rare, 4–4 ties have occurred before when justices recuse themselves. When the Court divides evenly on a case, the ruling of the lower federal court is affirmed but is not considered legal precedent.

The Supreme Court’s 2015–2016 term runs through June. As several pending cases were expected to be 5–4 decisions, the vacancy of Justice Scalia’s seat is certain to be impactful.

Read more from History, News

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