Court vacancy not yet a record

Scalia’s seat has been empty for more than 400 days, the longest stretch in decades.

It’s been more than 400 days since Supreme Court Justice Antonin Scalia’s death left his seat vacant.

With Republicans having blocked a vote on then-President Obama’s nominee, Judge Merrick Garland, and with Senate Democrats now making plans to filibuster President Trump’s nominee, Judge Neil M. Gorsuch, it could take much longer yet to replace Scalia.

It’s not unheard of for a justice’s seat to remain empty for a considerable amount of time. Pew Research Center found that the longest gap was 841 days, in the mid-1840s, from the time of Henry Baldwin’s death to successor Robert Grier’s confirmation.

But the last time a vacancy’s duration approached 400 days was after Abe Fortas resigned in 1969. It took 391 days to fill that seat, an interval that ended in 1970 when Harry Blackmun — the justice who authored the court’s landmark opinion in Roe vs. Wade — was confirmed. Blackmun was President Nixon’s third pick to fill that seat.

The second-longest vacancy in recent years occurred in 1988. It took 237 days to fill Lewis Powell’s seat after he retired, with Anthony M. Kennedy succeeding him.

It’s been 58 days and counting since Trump nominated Gorsuch. Here’s how his waiting time from nomination to confirmation stacks up against the current justices: • Elena Kagan: 87 days • Sonia Sotomayor: 66 days • Samuel A. Alito Jr.: 82 days • John G. Roberts Jr.: 23

days • Stephen G. Breyer: 73 days • Ruth Bader Ginsburg: 50

days • Clarence Thomas: 99 days • Anthony M. Kennedy: 65 days Even if Gorsuch is confirmed soon, he won’t start considering cases until the court’s new term in October.

And if he’s not confirmed? Trump would name another Supreme Court nominee — there’s no limit on how many times he can do that. Until Scalia’s seat is filled, lower courts’ decisions serve as tie-breakers.