How Long Can A Supreme Court Seat Sit Vacant? This Could Take Awhile
You may have already heard that Justice Anthony Kennedy is retiring from his seat on the Supreme Court. In the wake of the announcement, many people are wondering: what's next? Who's gonna be nominated for Kennedy's seat? And most importantly, how long can a Supreme Court seat sit vacant? Honestly, it could take a long time to fill.
Although President Donald Trump said he would be looking to replace Kennedy "immediately," there's actually no time requirement for the Supreme Court to have all of its seats filled.
In fact, as noted by the Pew Research Center, it's not unheard of for seats to remain unoccupied for months at a time, as seen following the death of Supreme Court Justice Antonin Scalia in February 2016. According to TIME, Scalia's seat was vacant for 422 days — the longest since 1869, when Congress set the number of justices at nine — until Trump nominated Neil Gorsuch as his successor in January 2017.
That wasn't the only lengthy vacancy on the Supreme Court, though. The Pew Research Center also notes that in the late '60s a seat was open for 391 days, from May 1969 to June 1970, between the time Abe Fortas resigned to when Harry Blackmun was sworn in. That's not even the longest vacancy, however. That would be the whopping 841 days in the mid-1840s following the death of the Supreme Court justice Henry Baldwin. He was later replaced by Robert Grier.
Trump, however, seems eager to fill Kennedy's seat. On June 27, following the justice's resignation, the president shared that he'd be starting the nomination process "immediately," according to USA Today. He'll reportedly be choosing his nominee from an existing list of 25 candidates that was first released back in November 2017.
Some of the potential replacements include:
Brett Kavanaugh of Maryland, U.S. Court of Appeals for the District of Columbia Circuit; Joan Larsen of Michigan, U.S. Court of Appeals for the Sixth Circuit; Mike Lee of Utah, United States Senator; And Thomas Lee of Utah, Supreme Court of Utah.
But appointing a new justice might not be an easy task for Trump. After he makes his nomination, the person will have to be approved by a majority of members in the Senate. Republicans currently occupy 51 Senate seats, with the Democrats holding 49. However, Democrats could filibuster to delay a vote once it gets to the Senate for debate.
Also, recent precedent regarding Supreme Court nominations is likely to cause some drama. Back in March of 2016, Republican leader Mitch McConnell refused to allow hearings on President Barack Obama's nominee to the Supreme Court, Merrick Garland. Instead, he argued, the Senate should wait until after the 2016 presidential election, and let the new president nominate a justice. Now, some senators, like California's Kamala Harris, are urging the appointment to wait until after the midterms are over in November. Harris said in a statement:
Given the stakes of this seat which will determine the fate of protected constitutional rights, the American people, who are set to vote in less than four months, deserve to have their voice heard. We should not vote on confirmation until they have voted at the ballot box. The President’s list of potential nominees are complete non-starters. They are conservative ideologues instead of mainstream jurists. We cannot and will not accept them to serve on the highest court in the land which is supposed to stand for equal protection under the law and justice for all.
Sen. Chuck Schumer, of New York, said that Americans should not stand for an appointee from Trump's list in a message shared to his Twitter.
He wrote, "Americans should make it clear that they will not tolerate a nominee chosen from President Trump’s pre-ordained list, selected by powerful special interests, who will reverse the progress we have made over the decades."
That said, the appointment could happen in the next few months or it might take another year — or perhaps even longer. It surely seems like it's gonna be a fight, though — at least in my opinion — so we'll just have to keep our eyes out on this.