On Friday, New York magazine's Jon Chait argued that the media has "wildly overstated the legislative importance of Republican Senate control" while at the same time understating its judicial importance. As he put it, "The contest to control the Senate is about one thing: whether Obama can confirm judges and staff his administration." A GOP Senate would spell "two years of likely gridlock," and "if a Supreme Court justice becomes incapacitated or dies, the judicial gridlock could become a Constitutional struggle."

Chait is absolutely right—and the possibility of a constitutional crisis is all the dramatic because there's no modern precedent for it.



The Constitution doesn't require the president to fill a Supreme Court vacancy on any particular timeline. But since World War II, vacancies on the high court have not caused partisan gridlock. The closest precedent is then-Associate Justice Abe Fortas, whom President Lyndon Johnson nominated for chief justice; a Democratic Senate filibustered Fortas over concerns about his liberal opinions and close relationship with Johnson. There were Supreme Court deaths—justices Wiley Rutledge, Fred Vinson, Robert Jackson, Frank Murphy, and, most recently, William Rehnquist—but their seats were filled in a timely manner.

Even in the pre-WWII era, when a much higher percentage of justices died in office, vacancies were generally filled with little delay. The rejected nominees of presidents James Madison, James Buchanan, Ulysses S. Grant and others fell for a variety of quirky reasons unique to their situation, not because of gridlock; in fact, those presidents generally faced a friendly Senate. John Tyler succeeded in having only one of his six nominees confirmed, but his party also controlled the Senate.

Supreme Court nominees are especially likely to be rejected for partisan reasons at the end of a lame-duck presidency. According to the Congressional Research Service, “Opposition to the nominating President played a role in at least 16 of the 34 nominations that were not confirmed. Many of the 16 were put forward by Presidents in the last year of their presidency—seven occurred after a successor President had been elected, but before the transfer of power to the new administration.”

As we look ahead to the post-midterm landscape, we could be in uncharted territory. Indeed, 1895 was the last time a Democratic president nominated a justice facing a Republican Senate (44 Republicans joined 40 Democrats and six senators of other parties to approve Grover Cleveland’s nomination of Rufus Peckham). Since then, every other Democratic president with a Supreme Court vacancy faced a friendly Senate.