The 5-Year Empty Seat

April 15th, 2016

During a press briefing yesterday, White House Press Secretary suggested that in light of decision by Senate Republicans not to afford Chief Judge Garland a hearing and vote, Senate Democrats would be “justified” in blocking a Republican President’s nomination for the full four-year term.

Mr. Earnest: [W]hat’s to stop Democrats who are in charge of the Senate when a Republican is in office from saying, well, we’re just going to wait four years to fill the vacancy.  There’s no material difference in that argument.  That would represent a breakdown of the process.

Q    Would they do that?  I mean, you’re saying that it seems like — that they would do that.

MR. EARNEST:  They would be justified in doing it based on what Republicans have done so far.

In effect, if a Republican wins the White House in 2017, so long as Senate Democrats hold the gavel, Justice Scalia’s seat will remain empty. So long as the Senate and Presidency are not controlled by the same party, no nominations will be possible.

Things are proceeding as I anticipated some time ago.

Between October 2014 and January 2015, I gave four presentations on selecting the next Supreme Court Justice in New Jersey, ChicagoBerkeley, and at Georgia State. In each presentation, I made a very similar point–in the event that the President and Senate are controlled by different parties, there is a distinct possibility that a seat on the Court remains empty for an extended period of time. To illustrate this dynamic, in my presentation I used a picture of Clint Eastwood from the 2012 Republican National Convention to illustrate the empty seat–I called it the Eastwood effect. This point was made well before the Scalia vacancy.


I considered a hypothetical with a SCOTUS vacancy in 2017, a Republican President seeks to make a nomination, and the Democratic-controlled Senate blocks any nominees. (I didn’t quite consider denying the person a hearing–rather I thought the candidate would simply be voted down). I suggested that a Republican President–if the Democrats refuse to even hold a vote in 2017–could roll the dice, and hope the Republicans pick up the Senate in 2018. Then, the Senate Republicans could eliminate the filibuster and confirm the President’s nominee of choice. This would raise the distinct possibility of a seat remaining empty for one or more years, but I predicted this was a likely consequence of the escalation in the nomination wars following Sen. Reid’s nuclear option.

From September through February, I was planning on writing an article on the empty-seat scenario, and focus on how state courts handle them–see New Jersey–but unfortunately never got around to it. (There are far more things that I want to write, but never have time to complete).

All of my discussions from these four events are recorded, and articulate my thoughts on this–well before the passage of Justice Scalia made this a reality and not a hypothetical.

My remarks from the Chicago Federalist Society Lawyer’s Chapter on 10/15/15 (fast-forward to 23:19):


From the New Jersey Federalist Society Lawyer’s Chapter on 10/6/15 (fast-forward to 21:30):

From the Berkeley Federalist Society Chapter at 13:45 (in an event featuring Ed Whelan):

And finally, at the Georgia State Federalist Society, with the inestimable Eric Segall, (starting at 23:20).