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SCOTUS for law students: The missing Justice

It has been 221 days since Justice Antonin Scalia died suddenly and 190 days since President Barack Obama nominated Chief Judge Merrick Garland to fill the vacancy. The nominee, who will turn 64 just five days after the election in November, has been on the U.S. Court of Appeals for the District of Columbia Circuit for 19 years and has been the chief judge for more than three years; he served in several positions in the Justice Department, clerked for Supreme Court Justice William J. Brennan Jr., and was a partner at the firm of Arnold & Porter in Washington, D.C. for several years.

In that 190-day period, the nomination has not advanced an inch.

While there is no way to predict what lies ahead, it is worth revisiting some of the possibilities for bringing the Supreme Court up to full strength.

In a field of uncertainties, there may be two things that are predictable to the point of certainty. First, and most self-evident, the Court will eventually return to a full bench of nine Justices, the number set by Congress for the size of the Court in 1869 and maintained ever since. With that number remaining steady for 147 years, after several fluctuations earlier in the country’s history, it seems unlikely that this will be the moment when lawmakers decide to change the size of the Court.

The second certainty is that the Supreme Court vacancy will not be filled before the November 8 election. The Senate, which must confirm or reject Supreme Court nominees by a simple majority vote, is only scheduled to be in session for two more weeks before adjourning to let members return to their home states to campaign for reelection. From now to October 7, when the Senate is scheduled to leave town, is scarcely enough time to act on the Garland nomination, even if Senate leaders wanted to move it along. Since the Senate Judiciary Committee has not even held hearings on Garland’s nomination, there is no prospect of action before voters go to the polls nationwide.

To put all of this in perspective, recall that as soon as Justice Scalia died in February, Senate Republican leaders announced that the next president should be allowed to fill the vacancy because the presidential primary season had already begun. There is no actual precedent for this argument, but Republican senators have continued to press the claim that the voters should choose who will nominate the next Justice.

For their part, Democrats have refuted the idea that there is any practice or precedent of waiting to fill a Supreme Court seat in a presidential election year. They have accused the Republicans of prolonged, partisan delay and obstruction. Both Obama and Vice President Joe Biden recently renewed calls for the Senate to take action on the nomination.

With the Supreme Court so closely divided on many of the major issues of the day, the partisan struggle over who will fill the vacancy is, perhaps, not surprising, even if the extreme extent of Senate inaction is unprecedented.

What, then, are possible scenarios for filling the vacant seat?

One possible scenario, much discussed in political commentary, is that the Senate might take up and approve Garland’s nomination in a lame-duck session after the election. The tentative date for Congress to return is November 14. If Hillary Clinton wins the White House on November 8, the popular theory goes, the Republican majority in the Senate might move to confirm Garland for fear that if the seat is still open once the new president takes office on January 20, she might pick someone more liberal than Garland. If the Democrats gain a majority of seats in the Senate, this theory picks up even more steam, since the Republicans would continue to control the Senate through January 3.

How likely is this scenario? There is no way to know, but Senate Republican leaders have been quite adamant and vocal that their refusal to act on Garland’s nomination is based on their principled belief that the voters and the next president should determine the direction of the Court. While the vast number of potholes in Washington could be filled with famous reversals of political positions, it would take some deft maneuvering for McConnell and others to retreat from the claim that the vacancy is the prerogative of the next chief executive to fill.

Of course, if Donald Trump wins on November 8, there is no incentive for Republicans to act on the Garland nomination. The goal of the Republican leaders to let the seat be filled by what they hope will be a Republican president will have been achieved.

If there is no action to fill the vacancy during the lame-duck session, then the Garland nomination will expire when the current session of Congress ends on January 3, 2017.

As a technical matter, Obama could re-nominate Garland on January 4 during the two weeks in which he remains president after the new Congress is sworn in, but that is highly unlikely, because the Senate would not act before the next president took office on January 20.

Once the next president is inaugurated, the nomination process begins anew. If Trump is the next president, he would send his own nomination to the Senate, presumably someone who holds more conservative values than Garland. Trump’s campaign has published a list of 11 potential Supreme Court candidates.

If Clinton wins, she may make a fresh pick as well. She is under no obligation to nominate Garland and has declined to say whether she would resubmit his name or would choose her own Supreme Court nominee. Some Clinton supporters will push for a younger, more demonstrably liberal nominee who may bring more diversity to the Supreme Court.

While the stalemate continues, the Supreme Court’s new Term hangs in the balance. The Justices begin the Term on October 3 and are scheduled to hear oral arguments in seven two-week argument sessions through April. If the vacant seat on the Court awaits a nomination by the next president, it is quite possible, even likely, that the Justices will go all the way through their oral argument sessions for the entire Term with an eight-member Court. This is because the Senate would still need to prepare for and hold Judiciary Committee hearings, write a committee report, and debate the nomination on the floor, likely taking at least two months and probably more.

In this final scenario, by the time the vacancy is filled, it will be more than a year after both the death of Justice Scalia and Judge Garland’s nomination.

Recommended Citation: Stephen Wermiel, SCOTUS for law students: The missing Justice, SCOTUSblog (Sep. 22, 2016, 10:37 AM),