With only two years left in his presidency, and no apparent Supreme Court vacancies in sight, is President Obama ever going to nominate another justice?
Following the president's remarks on that very topic this week, The Wall Street Journal's Jacob Gershman did the math, and it looks like Obama may indeed get that chance, at least statistically speaking. According to Gershman, 82 percent of U.S. presidential terms have overlapped with at least one vacancy on the Supreme Court.
That's a pretty high number, but how could he have arrived at that figure? Let's take a closer look.
Never Tell Me the Odds
Presidents like Clinton -- and Obama if he nominates no one before January 20, 2017 -- front-loaded their Supreme Court appointments. Clinton nominated Justices Breyer and Ginsburg in 1993 and 1994, respectively, and then there were no vacancies for the rest of his two terms in office. So how often has this happened?
There have been 65 presidential terms -- either discrete (and consecutive) terms in office by the same person or terms of new presidents, including those who took over after their predecessor died (or resigned -- like that one time). Of those, there were no justices confirmed to the Supreme Court in 16 of them, for a 76 percent justice-confirming rating. (Yes, there's a difference between nominations and confirmations; however, only Millard Fillmore and Andrew Johnson, both of whom took over for someone else, had a term go by with a nomination but no confirmation, and really, getting someone confirmed is what's important.)
What about second terms? Nineteen presidents served two terms (or more -- like that one time). Six of them had no justices confirmed during their second terms, meaning 68 percent of presidents with second terms had a justice confirmed during their second term.
Some second terms were incredibly short, though. Lincoln's lasted about a month, which is hardly time enough to nominate and confirm anyone (although in Garfield's single term of only four months, he somehow managed four justices). Excluding presidents whose second terms lasted less than a year, the figure drops to 3/16 with no confirmations, meaning 81 percent of presidents with second terms longer than a year got a justice confirmed in their second term. (Before you ask, I thought about what to do with FDR's four terms -- in which he nominated justices only in his third and fourth terms -- and decided to count his four terms as two "modern" terms. Also, Gershman counts "terms" in four-year increments, not discrete presidential terms.)
It's highly likely that Obama, a two-term president whose second term is longer than a year, will have another justice confirmed. If not, he'll join the company of Presidents Madison, Wilson, and Clinton. That's not so bad, is it?
- Obama expects Supreme Court vacancies (Politico)
- Snippets: Which Justice Are You?, ACA Subsidies, 'Notorious RBG' (FindLaw's U.S. Supreme Court Blog)
- Is It Already 'Too Late' for Justice Ginsburg to Retire? (FindLaw's U.S. Supreme Court Blog)
- Will 1st Circuit Nominee David Barron Be Nominated to SCOTUS? (FindLaw's U.S. First Circuit Blog)