Current Supreme Court



Declined/not confirmed*

When Senate Republicans called on July 10, 2018, for a quick Senate confirmation of Republican President Donald Trump’s Supreme Court nominee Brett Kavanaugh, they made no mention of how they treated former Democratic President Barack Obama’s nomination on March 16, 2016, of Merrick Garland, whose nomination languished for 293 days and was never acted upon by the Senate. The reason was Senate Republican Leader Mitch McConnell’s refusal to consider Garland, leaving the nine-member Supreme Court deadlocked between conservatives and liberals at 4-4 with an unfilled vacancy for months.

Senate Republican leaders simply declined to act on the Garland nomination, asserting at the time that the next Supreme Court justice should be chosen by the presidential candidate elected in November 2016. This high-stakes political gamble effectively deprived Obama of putting another liberal on the court and it paid off. Trump won the presidential election and shortly afterward made conservative Neil Gorsuch his first appointment to the court. Kavanaugh, named by Trump on July 9, would be Trump’s second Supreme Court appointee if the conservative judge is approved by the Senate.

In past confirmation battles, nominees sometimes have endured months of controversy, close votes and sometimes outright rejection. But in the Garland case, the Senate just did not act and Garland returned to his job in Washington as chief judge of the U.S. Court of Appeals for the District of Columbia Circuit, the same court where Kavanaugh now works.

Above is a tracker drawn from Senate records, showing the lengths of time for individuals selected for America’s highest court. It marks the time from the date that a president officially presented the nomination to final action in the Senate, whether for or against the nominee. The time periods are associated with particular nominees, not the vacancies themselves, which can go on longer.

For example, the person whose nomination dragged on the longest before confirmation (prior to Garland) was Louis Brandeis, who was under consideration for 125 days and who, upon Senate approval, became the first Jewish justice.

But several court seats have remained vacant for far longer as presidents were forced to submit successive nominations. For example, while Harry Blackmun landed on the court 27 days after he was nominated by President Richard Nixon, the seat he took had been vacant for 391 days, as Nixon first nominated Clement Haynesworth, Jr., and G. Harrold Carswell. Both were rejected by the Senate before Blackmun was confirmed.

That vacancy filled by Blackmun was created in May 1969, when Justice Abe Fortas resigned under threat of impeachment for financial irregularities, an episode that began the modern era of Supreme Court confirmation clashes. Since then, the average wait for Senate action has been about 60 days.

The white dot shows how long Garland waited before his nomination expired.

*Declined/not confirmed includes justices who were confirmed but declined to serve, as well as postponed and withdrawn nominations. Since 1789, only three nominees received no Senate action and were never re-nominated, the most recent being in 1866.
Source: U.S. Senate
By Travis Hartman and Joan Biskupic | REUTERS GRAPHICS