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The Scalia Vacancy in Historical Context: Frequently Asked Questions

The Scalia Vacancy in Historical Context: Frequently Asked Questions. March 1, 2017 R44773

“The procedure for appointing a Justice to the Supreme Court of the United States is provided for by the Constitution in only a few words. The “Appointments Clause” (Article II, Section 2, clause 2) states that the President “shall nominate, and by and with the Advice and Consent of the Senate shall appoint … Judges of the supreme Court.” The process of appointing Justices has undergone changes over two centuries, but its most basic feature—the sharing of power between the President and Senate—has remained unchanged. To receive a lifetime appointment to the Court, a candidate must first be nominated by the President and then confirmed by the Senate. Under the Constitution, once confirmed, Justices on the Supreme Court hold office “during good Behaviour,” in effect typically receiving lifetime appointments to the Court. In other words, Justices may hold office for as long as they live or until they voluntarily step down from office. Following the initial six appointments made to the Court by President George Washington in 1789 and 1790, the first vacancy occurred on the Court as a result of the resignation of Justice John Rutledge on March 5, 1791. The most recent vacancy on the Court was created by the death of Justice Antonin Scalia on February 13, 2016. From 1791 to the present, vacancies have occurred, on average, on the Court every two years. The Scalia vacancy, however, occurred approximately 5.5 years after the last vacancy on the Court (following the retirement of Justice John Paul Stevens in 2010)—making the length of time between the Stevens vacancy and the Scalia vacancy the fifth longest period of time between two vacancies occurring in the history of the Court. The Scalia vacancy is notable in several other ways: It is only the second vacancy, of 24, on the Court since 1954 to occur as a result of the death of a sitting Justice (the other being Chief Justice William Rehnquist in 2005); it is the seventh longest vacancy on the Court since 1791 (and the longest vacancy since 1861); it is one of nine vacancies since 1791 that arose during a presidential election year, prior to the election itself and for which a President submitted a nomination prior to the election (and the first such vacancy since 1932); and it is the eighth time in the history of the Court in which a vacancy that arose during one presidency will be filled during a different presidency (with the last time occurring in 1881). This report discusses these issues and others, with the purpose of providing historical context to some of the frequently asked questions about the vacancy created by Justice Scalia’s departure from the Court. This report will be updated upon Senate confirmation of Justice Scalia’s successor.”

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