Today I have the honor to serving as the keynote speaker for the Federal Bar Association Orlando Chapter’s conference. I will be speaking at noon at the U.S Courthouse on the Supreme Court’s history and current controversies. This will obviously include the long standing vacancy of the seat once held by Associate Justice Antonin Scalia.
The vacancy left by Scalia may now set a record. It has been 292 days since Scalia passed on February 13, 2016. It has been 259 days since the nomination of Judge Merrick Garland.
The longest delay in filling a seat since the current nine-member court was established was set during the Nixon Administration. The cause was two failed nominations to replace Abe Fortas who left the Court under an ethical cloud. The result was the confirmation of Justice Henry Blackmun on June 9, 1970. That was 391 days later. Given the inauguration is not until January 20th, Trump will not be able to even nominate a new person under 341 days later — assuming Mitch McConnell holds with his pledge not to move on any nominee during the Obama Administration. That could easily set the record if the process takes a couple of months.
For those keeping score, the score longest was 201, which we will pass shortly. That was the vacancy left by the death of Salmon Chase in 1873 and the eventual confirmation of Morrison Waite. We just passed the record set by the confirmation process after the death of Stanley Matthews (in 1889) when he was replaced by David Brewer.
The longest vacancy in the entire history of the Court occurred after the death of Justice Henry Baldwin. That was 841 days, Baldwin (who was lost famous for introducing the practice of dissents on the Court as well as being — according to some — deranged) died on April 21, 1844. However, President Tyler was grossly unpopular and the Congress was in an oppositional mood. Robert C. Grier finally was added to the Court on August 10, 1846. Indeed, Tyler never did succeed. It was his successor James Polk who secured the confirmation. Tyler made nine attempts to get a nominee confirmed.
The longest nomination period for any one nominee will not be challenged by Judge Garland. It was 781 days after President Buchanan nominated his own Secretary of State Jeremiah Black to replace Peter Daniel (left), who died in May 1860. Indeed, as bad as it has been for Judge Garland, it was worse for Daniel. After that one delay, he failed by one vote. The seat was filled by President Abraham Lincoln with Samuel Miller in 1862.
