Supreme Court Survives Scalia Vacancy Relatively Unscathed

Kevin Daley | Supreme Court Reporter

Judge Neil Gorsuch’s confirmation to the Supreme Court brought one of the lengthier judicial vacancies of the modern period to a close Friday, concluding a 14-month political fight heavy on partisan posturing and nasty invective.

With the Court restored to its full complement of nine justices, it’s worth noting that the Scalia vacancy — at 419 days — is the longest in nearly five decades. But it’s far from the longest Supreme Court vacancy the country has seen. And compared to previous crises of the bench, this moment of the Court’s history has been fairly uneventful, especially when compared to past events.

Gorsuch’s confirmation was messy. But so were others of the recent past.

According to data compiled by the Pew Research Center, the last vacancy to rival the one occasioned by Scalia’s death came in 1969, when Justice Abe Fortas resigned in disgrace in connection with an ongoing ethics scandal. One of the early tasks of President Richard Nixon’s new administration was to fill the Fortas seat, and to nominate a successor to Chief Justice Earl Warren. Though selecting a new chief proved fairly easy — Warren Burger was confirmed 74-3 — it took over a year and two failed nominations to find a replacement for Fortas.

A bipartisan coalition of Republicans and Democrats voted down Nixon’s first two choices. Judges Clement Haynsworth and G. Harrold Carswell were victims of the complicated civil rights politics of the period. Whereas Haynsworth was seen as a pro-corporate segregationist, Carswell presented as an underwhelming, reluctant integrationist. Justice Harry Blackmun eventually filled the seat in 1970.

Nixon had less trouble with subsequent appointments. Justices William Rehnquist and Lewis Powell ascended to the high court without much of a fracas.

A similar pattern followed during the Reagan administration. Two of President Reagan’s nominees — Justices Sandra Day O’Connor and Antonin Scalia — were easily confirmed. However, when Powell retired, Reagan’s first two nominees to succeed him, Judges Robert Bork and Douglas Ginsburg, self-immolated in rapid succession.

Where Bork spent days waging ideological battle with Democrats on the Senate Committee on the Judiciary, Ginsburg made no attempt whatever to defend his use of marijuana as a professor at Harvard Law School. Newsweek famously quipped his nomination quickly went Up In Smoke. Justice Anthony Kennedy eventually filled the post.

The failed nomination of Judge Merrick Garland prompted a series of pieces pronouncing the death of cordiality and statesmanship in the Senate. But the Nixon and Reagan histories evince a deeply fickle upper house, accommodating and ruthless in equal measure, depending on the mood of the body. Such volatility does little to bolster the argument the Senate of the past was an amiable chamber with respect to judicial nominees.

The Court In Crisis

Before the modern-era, extended vacancies on the high court were not unusual, as the Pew report notes. In the 19th century, vacancies lasted on the Court for over one year, and in some cases two years, on seven different occasions. These situations reflect a Supreme Court that was genuinely in extremity.

The longest vacancies came during the administration of President John Tyler, a lifelong Democrat who bolted the party to become a Whig in 1834. He became vice president under William Henry Harrison in 1840, and assumed the presidency after Harrison’s untimely death.

A maverick operator disliked by both parties, Tyler limped through an ignominious tenure and departed the White House in 1845, with a record eight failed Supreme Court nominations — four different nominees were voted down by the Whig Senate over eight separate votes (Tyler nominated several individuals two or three times despite the Senate’s repeated rejections.)

During this period, two seats remained empty on the Court for over two years. The Senate did not confirm nominees to the first of these vacancies until the closing days of Tyler’s presidency. The other was filled by his successor, President James K. Polk. The Whig Senate’s unyielding disdain for Tyler crippled his presidency — and nearly did the same to the Court.

The Civil War similarly compromised the Supreme Court’s ability to function. Drawing from David Mayer Silver’s work, Pew explains that the early years of Lincoln’s presidency featured the defection of one justice to the Confederacy, while two other justices languished in ailing health. As such, the tribunal often lacked a necessary quorum to operate.

The current Court has never approached these levels of grave disfunction.

Even with a full bench, the Court has struggled at times to work effectively, given its own internal divisions. As Harvard Law School professor Noah Feldman explains in his book “Scorpions,” New Deal-era appointees Hugo Black, William Douglas, Felix Frankfurter, and Robert Jackson clashed bitterly with their conservative colleagues, and often with each other, at the expense of the Court’s harmony, during and after the Second World War.

Similarly, as Bob Woodward documents in “The Brethren,” the Burger Court bordered on sclerotic given its own internal meltdowns in the 1970s, winning Burger a reputation as an inept chief justice who failed to effectively transition the bench from the liberal triumphs of the Warren years to the conservative tack of the Rehnquist Court.

The cleavages of the Burger and Roosevelt-era Courts are absent from the current crop of justices, despite sharp ideological divergences. It is a testament to the fortitude of this Court, and the leadership of the chief justice.

The Roberts Court’s Record

All things considered, the Roberts Court of Eight has performed fairly well compared to earlier crises. To be sure, the Court has jettisoned or split over high profile decisions in the last year, and remains below its normal pace for grants and decisions, as SCOTUSblog documents. Still, the justices have maintained a fair degree of comity thus far — 12 of the 22 decisions handed down this term have been unanimous, and an additional half dozen rulings, at 7-1 or 6-2, reflect a high decree of consensus, even in the absence of unanimity. Only two cases have resulted in narrow 5-3 decisions, and none as yet have resulted in a tie (despite several last term after Justice Scalia’s death.)

All the while, each of the justices continue to trumpet the warm fraternity of the Court in their public appearances.

Though ties and close decisions are sure to come — which may necessitate a reevaluation of this post — Gorsuch’s confirmation will bring this uncertain period of the Roberts Court’s history to a conclusion. And compared to previous extended vacancies and ideologically divisive benches, this Court has gotten on without discord, unpredictability, or conflict.

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