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

Feb 14, 2016

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.

daysspanbegan withended with
391May 14, 1969 - Jun 9, 1970Abe Fortas resigns.Harry A. Blackmun begins term.
301May 7, 1873 - Mar 4, 1874Salmon Portland Chase dies.Morrison Remick Waite begins term.
290Mar 22, 1889 - Jan 6, 1890Stanley Matthews dies.David Josiah Brewer begins term.
281Mar 28, 1910 - Jan 3, 1911David Josiah Brewer dies.Willis Van Devanter begins term.
281Mar 4, 1877 - Dec 10, 1877David Davis resigns.John Marshall Harlan begins term.
262Jan 22, 1892 - Oct 10, 1892Joseph P. Bradley dies.George Shiras, Jr. begins term.
249May 14, 1887 - Jan 18, 1888William Burnham Woods dies.Lucius Quintus C. Lamar begins term.
248Jul 7, 1893 - Mar 12, 1894Samuel Blatchford dies.Edward Douglass White begins term.
237Jun 26, 1987 - Feb 18, 1988Lewis F. Powell, Jr. retires.Anthony M. Kennedy begins term.
205Jul 9, 1938 - Jan 30, 1939Benjamin Nathan Cardozo dies.Felix Frankfurter begins term.
TIME may receive compensation for some links to products and services on this website. Offers may be subject to change without notice.