If Republican senators refuse a Supreme Court nominee to replace Antonin Scalia until President Barack Obama — or even a Democrat in general — is out of the White House, America could be looking at a historic length in a Supreme Court vacancy.
This great chart, from Sean McMinn at Roll Call, tells the story:
According to Roll Call, the longest length of time before a Supreme Court vacancy was filled — since 1900 — was 363 days.
But the Senate might refuse to appoint someone for much longer. "The American people should have a voice in the selection of their next Supreme Court justice," Senate Majority Leader Mitch McConnell (R-KY) said in a statement. "Therefore, this vacancy should not be filled until we have a new president."
If the Senate appointed someone the day (January 20, 2017) the next president takes office, the vacancy in Scalia's seat would last 341 days.
But the process of accepting a nominee can last a lot longer than one day — especially if, say, President Hillary Clinton or President Bernie Sanders nominates a justice while Republicans still control the Senate and present a fractious confirmation process. So this vacancy could make records.
Besides, there's reason to believe this vacancy could last far past this election year. Republicans have spun their opposition to any potential nominee by arguing that Obama shouldn't nominate someone in an election year — because the final decision should be left to voters. But really their concern is that Obama will appoint a justice who's far more liberal than Scalia, who was consistently one of the more conservative justices on the bench.
But if Clinton or Sanders is the next president, the exact same concerns over a liberal justice apply. If Republicans don't budge, that could lead to a truly years-long vacancy.