OBAMA’S LAST TWO YEARS: WATCH THE COURTS.

Only twice in the post-Civil War era has a President presented with a Supreme Court vacancy failed to fill it before leaving office.2 The most recent instance was nearly half a century ago, in 1968, when Chief Justice of the United States Earl Warren announced his intention to retire upon the confirmation of his successor. Outgoing President Lyndon B. Johnson nominated Justice Abe Fortas, his longtime friend and confidante whom he had appointed to the court in 1965, to replace Warren as Chief Justice. The Democratic-controlled Senate refused to confirm him, though, and Johnson withdrew his nomination in October 1968, along with the nomination of Homer Thornberry, a Federal appellate judge Johnson had nominated to replace Fortas. Warren stayed on as Chief Justice, and it fell to Johnson’s successor, President Richard Nixon, to fill the seat. Nixon picked Warren Burger as Chief Justice.

Prior to that, one has to go back to 1881 to find a court vacancy that was filled not by the sitting President but by his successor. President Rutherford B. Hayes made the controversial nomination of Stanley Matthews in 1881. The nomination came near the end of Hayes’s term, so the Senate did not act. New President James A. Garfield renominated Matthews, and he passed through the Senate by a slim 24–23 vote.

Despite the lack of any recent precedent for such a power play, nothing but public pressure and historical norms would stop the GOP from running out the clock until the end of Obama’s term on a Supreme Court nomination, potentially preserving the court opening for a Republican President, should one be elected in 2016.

The more partisan Obama’s behavior in other respects, the easier it will be for the GOP to do this without paying a significant political price.