TIME Antonin Scalia

Antonin Scalia’s Open Supreme Court Seat Could Set Record For Vacancy

The longest the court has gone with eight members is 391 days.

Within hours of the death of Supreme Court justice Antonin Scalia, Senate Majority Leader Mitch McConnell said that the Senate would not consider a replacement until a new president takes office. President Obama has vowed to nominate someone anyway, while Senate Minority Leader Harry Reid, a Democrat, called such a long vacancy on the court “unprecedented.”

He may be right. Since 1869, when Congress settled on a nine-justice panel, the longest the Court has gone without a complete roster is 391 days, from the resignation of Abe Fortas on May 14, 1969 to when Harry A. Blackmun took the oath of office on June 9, 1970. This delay was due in large part to the fact that President Nixon’s first two choices for the seat were rejected by the Senate.

As of Sunday, Obama has 340 full days left in office. If indeed the Senate does not confirm anyone for the remainder of his term, the next president will have just under two months to get a new justice approved by the Senate and sworn in before breaking Nixon’s record.

Below are the top ten longest vacancies on the court, based on the beginning and end dates for each justice’s term listed on the Supreme Court’s website.

days span began with ended with
391 May 14, 1969 – Jun 9, 1970 Abe Fortas resigns. Harry A. Blackmun begins term.
301 May 7, 1873 – Mar 4, 1874 Salmon Portland Chase dies. Morrison Remick Waite begins term.
290 Mar 22, 1889 – Jan 6, 1890 Stanley Matthews dies. David Josiah Brewer begins term.
281 Mar 28, 1910 – Jan 3, 1911 David Josiah Brewer dies. Willis Van Devanter begins term.
281 Mar 4, 1877 – Dec 10, 1877 David Davis resigns. John Marshall Harlan begins term.
262 Jan 22, 1892 – Oct 10, 1892 Joseph P. Bradley dies. George Shiras, Jr. begins term.
249 May 14, 1887 – Jan 18, 1888 William Burnham Woods dies. Lucius Quintus C. Lamar begins term.
248 Jul 7, 1893 – Mar 12, 1894 Samuel Blatchford dies. Edward Douglass White begins term.
237 Jun 26, 1987 – Feb 18, 1988 Lewis F. Powell, Jr. retires. Anthony M. Kennedy begins term.
205 Jul 9, 1938 – Jan 30, 1939 Benjamin Nathan Cardozo dies. Felix Frankfurter begins term.

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