Obama's Chances At The SCOTUS Nomination, In Numbers

Illustration by Tristan Offit.
Supreme Court Justice Antonin Scalia died on Saturday, after a long struggle with various health issues. And while it may seem callous to politicize his death so quickly, Scalia's passing has inevitably sparked debate about his possible replacement.

As The New York Times points out, the Senate has only voted on eight Supreme Court nominees during an election year since 1900. The question of Supreme Court nominations during an election year hasn't come up often in U.S. history — which means Scalia's death has created a divisive political issue. Senate Majority Leader Mitch McConnell has proposed that Obama's presidential successor nominate Scalia's replacement, while Obama is planning to nominate a successor himself, according to a statement from the White House.

Despite McConnell's efforts, delaying the nomination (and confirmation) of Scalia's replacement until after the election seems unlikely. Here, a look at the numbers.

338 Days

Number of days left in Obama's presidential term
The Times notes that Obama's term doesn't expire for 338 days, and it's never taken the Senate more than 125 days to vote on a potential Supreme Court justice after his or her nomination (that record-holding stretch was for Justice Louis Brandeis in 1916 under Woodrow Wilson). Since Obama is reportedly already considering successors for Scalia's seat on the bench, the chances of delaying the process are slim.

In a speech Saturday after Scalia's death, Obama announced that he plans to nominate a successor to take Scalia's place on the Supreme Court. And at a press briefing Monday, Principal Deputy Press Secretary Eric Schultz confirmed Obama's intentions, saying that nominating a new justice is included in Obama's job responsibilities. "We're in an election year, so I'm not going to pretend that that's not part of the atmospherics here," Schultz said during Monday's press briefing. "But the president is very focused on doing his job."

25 Days

Average time passed between a Supreme Court nomination and the nominee's confirmation, rejection, or withdrawal
There are notable outliers, but the process from nomination to confirmation is generally quick for Supreme Court justices, The Times explains.

In the United States' early days, the decision was remarkably quick — the first time the process from nomination to confirmation took more than 10 days was during John Quincy Adams' presidency, when he nominated Robert Trimble in 1826, and the process took 28 days.

During John Tyler's presidency, the process became more drawn out, though many of Tyler's nominees were rejected, not confirmed. In the last 30 years, however, the average amount of time from nomination to decision has increased to 71.6 days. Still, plenty of Supreme Court nominees have been confirmed fewer than 50 days after their nominations. And that's not just in the early days, either — for example, when Ronald Reagan nominated Sandra Day O'Connor in August 1981, she was confirmed just 33 days later.

71.6 Days

Average time passed between a Supreme Court nomination and the nominee's confirmation, rejection, or withdrawal (in the last 30 years)
A memorable exception to this average, though, is Robert Bork. An impressive 114 days after Ronald Reagan nominated Bork in 1987, his nomination was rejected. But Bork went through the entire nomination process before that happened, a process McConnell and current Republican leaders don't even want to start this year.

Of the nominees who've been confirmed in the past 30 years, however, the longest time between nomination and confirmation was Clarence Thomas, whom George H.W. Bush nominated in July 1991. Thomas was confirmed in October 1991, 99 days after Bush nominated him to the Supreme Court — after a battle that included serious reports of sexual harassment, and ugly character attacks against Anita Hill, the former colleague who brought them to light.

114 Days

The longest nomination process for someone who was ultimately rejected, Robert Bork in 1987
Still, election-year Supreme Court nominations are rare. In the past 30 years, the only SCOTUS justice confirmed during a presidential election year was Anthony Kennedy in 1988. Reagan nominated Kennedy in November 1987, and Kennedy was confirmed in February 1988, 65 days later.

But the 2016 controversy is less about precedent, and more about party politics. Without Scalia, the court no longer has a conservative majority, which could impact decisions on issues including "abortion, immigration, and religious freedom," The Wall Street Journal notes.

And if Obama does nominate a new Supreme Court justice, he might need to choose more moderate candidates, since McConnell's statements have gained support from Senate Republicans. While it's perfectly within Obama's right to nominate Scalia's successor, the Senate Judiciary Committee would still need to consider his nomination, and the full Senate would then need to vote on the nominee, too. With Republicans poised to block his nominee, Obama could face serious impediments before his nominee is confirmed.

The bottom line? It's an essential one of Obama's duties, as president, to nominate a replacement for Scalia. And it's the Senate's job to consider that nomination, too. While some 2016 candidates have proposed waiting until after this year's presidential election to complete the nomination and confirmation process, that's not likely to happen. In the meantime, check out our short list of Obama's reported nominee considerations here.

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