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Chris Feb. 17, 2016

I have not yet received a call from Pres. Obama inquiring about my interest in the current opening on the Supreme Court. Since Justice Scalia passed on Saturday, we have been inundated with judicial politicking on how his seat should be filled.

Justice Scalia was, no matter your position on his legal decisions, a great character and by all accounts well-liked by his colleagues, especially Justice Ginsburg. I did not agree with him or his originalist philosophy, but a big part of practicing law is dealing with opinions and judges that rule against you. Despite his stances on the constitutionality on the death penalty and Miranda rights, he was at times friendly toward rights of the accused, notably the confrontation clause and the Fourth Amendment. In fact, I praised one of his dissents here.

Right now Democrats and Republicans are arguing over whether a justice should be nominated and confirmed this year with the election coming up in November and Pres. Obama leaving office in January 2017. Republicans not surprisingly do not want another Obama-appointed justice. This is a relatively unique situation in U.S. history, at least in the past hundred years. There is not really precedent to stall nominations through elections.

I recently looked at all Supreme Court justices to determine how many vacancies occurred in election years.

Republican candidate Ted Cruz recently said something along the lines of having to go back almost eighty years to a justice being nominated and confirmed in an election year. He must be referring to Justice Frank Murphy who was nominated by Pres. Franklin D. Roosevelt in 1940. He was confirmed and Roosevelt was re-elected later that year. Since then, a vacancy has not opened up on the high court in an election calendar year. I say calendar year because the seat to which Justice Kennedy was appointed opened up in November 1987 and Pres. Reagan appointed him shortly thereafter. He was confirmed in early 1988. Reagan, just like Obama is now, was term-limited with an election for the new president coming up in November 1988.

In 1968, Pres. Johnson made two unsuccessful nominations for Chief Justice as Earl Warren was stepping down, after he had decided not to seek reelection, however there was not a vacancy leaving an eight-member Court at that time.

Before Murphy, Pres. Hoover nominated Justice Cardozo in 1932 before standing for reelection (unsuccessfully). Pres. Wilson appointed justices Brandeis and Clark in 1916 and successfully ran for reelection that year.

There are numerous other instances of justices being confirmed in election years before the twentieth century: 1796 (Connecticut’s own Oliver Ellsworth), 1800, 1804, 1828, 1836, 1844, 1852, 1860, 1872, 1880, 1888 and 1892. In ten of those years, the president was not re-elected. In 1796 (Washington), 1836 (Jackson), 1860 (Buchanan) and 1880 (Hayes), the incumbent did not seek reelection.

If a justice is not confirmed until after the next president takes office in January 2017, it will leave the court with eight members for approximately a year. The last time the Court was short-handed for a lengthy period of time was from 1969 to 1970 between Justice Fortas’ resignation and Justice Blackmun’s appointment. Pres. Nixon had two nominations fail in that 363-day time period. This however was not an election issue as Nixon had already won in 1968 and took office in 1969 before the resignation. The last time a seat on the Court remained vacant through an election was in 1844.

The Supreme Court can function with eight members. Many times in history a justice was unavailable or recused from a case. Six justices are needed to hear a case. In a split decision, the lower court ruling is affirmed and the opinion does not become legal precedent.