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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