Supreme Court vacancy, 2022

	Supreme Court vacancy, 2022
	Nominee
	Ketanji Brown Jackson
	Former Justice
	Stephen Breyer
	Coverage
	Supreme Court vacancy, 2022
	Ketanji Brown Jackson confirmation hearings
	Process to fill the vacated seat of Justice Stephen Breyer
	Resignation of Stephen Breyer from the U.S. Supreme Court
	Past vacancies: Select a vacancy:Supreme Court vacancy, 2020Supreme Court vacancy, 2018: An overviewSupreme Court vacancy, 2017: An overviewSubmit

Ketanji Brown Jackson was sworn in to serve on the United States Supreme Court on June 30, 2022, the same day Stephen Breyer retired from the court.^[1]^[2]

Breyer officially announced his retirement on January 27.^[3]^[4] President Joe Biden (D) said he would nominate Jackson to fill Breyer's vacancy on February 25.^[5] Jackson was confirmed by the Senate in a 53-47 vote on April 7, 2022.^[6]

Writing for SCOTUSblog, Amy Howe wrote: "Although Breyer is apparently in good health and by all accounts enjoys his job, Democrats began calling for him to retire shortly after the 2020 election so that President Joe Biden could nominate a younger judge to take his place."^[7] Breyer said on June 29 that his retirement would take effect the following day.^[1]

Jackson was appointed to the United States Court of Appeals for the District of Columbia Circuit by Biden in 2021 and the Senate confirmed her the same year. She served on the United States District Court for the District of Columbia from 2013 to 2021, and as a vice-chair and commissioner on the United States Sentencing Commission from 2010 to 2014.^[8] Jackson has previously clerked for Breyer during his tenure on the Supreme Court, worked as a lawyer in private practice, and as an assistant federal public defender.^[9]

Article II, Section 2 of the U.S. Constitution gives the President of the United States the authority to nominate Supreme Court justices, and they are appointed with the advice and consent of the Senate.

The average vacancy length on the Supreme Court since 1962—when defined as the length of time elapsed between a Justice’s departure date and the swearing-in of their successor—is 86 days. Four of these vacancies lasted for only a few hours each, with the successor being sworn in the same day the retiring Justice officially left office. The longest vacancy under this definition was 422 days, following the death of Justice Antonin Scalia.

In this article you will find:

Jackson's confirmation status
Timeline of events
Senate vote to confirm Jackson
Statements and reactions to Ketanji Brown Jackson's nomination
Official statements regarding the retirement of Stephen Breyer
Potential nominees to fill the vacancy
An overview of the process to fill the seat
Historic context: Past Supreme Court confirmation votes
Historic context: Prior judicial experience of Supreme Court nominees
Historic context: Past Supreme Court vacancy lengths

Confirmation overview

The table below shows an overview of Jackson's Supreme Court confirmation process.

Overview of confirmation process for Ketanji Brown Jackson
Nominee	Announced	Nominated	Senate Judiciary Committee hearings	Senate Judiciary Committee vote	Senate vote on motion to discharge^[10]	Senate vote	Swearing-in
Ketanji Brown Jackson	February 25, 2022	February 28, 2022	March 21-24, 2022	No recommendation (11-11) April 4, 2022	Approved (53-47) April 4, 2022	Approved (53-47) April 7, 2022	June 30, 2022

Timeline

The following timeline lists major events following the announcement of Justice Stephen Breyer's retirement.

June 30, 2022: Breyer's retirement took effect. Jackson was sworn in.
June 29, 2022:
- Breyer announced his retirement would take effect on June 30.^[1]
- The court announced Jackson would be sworn in on June 30.^[2]
April 8, 2022: Biden signed Jackson's commission.^[11]
April 7, 2022: The Senate voted 53-47 to confirm Jackson to the Supreme Court.^[6]
April 4, 2022:
- The Senate Judiciary Committee voted 11-11 along party lines on whether to advance Jackson's nomination. Under an organizing resolution passed at the beginning of the 117th Congress, if a judicial nominee received a tie vote in committee, his or her nomination could be advanced by a vote from the full Senate. The Senate voted 53-47 to advance Jackson's nomination.^[12]
- Sens. Lisa Murkowski (R-Alaska) and Mitt Romney (R-Utah) announced they planned to support Jackson's nomination.^[13]
March 29, 2022: Sen. Susan Collins (R-Maine) said she planned to support Jackson's nomination. Collins was the first Republican senator to announce she intended to vote yes on the Jackson nomination.^[14]
March 28, 2022: The Senate Judiciary Committee met to discuss Jackson's nomination.^[15]
March 24, 2022: Jackson's Senate confirmation hearings ended.
March 23, 2022: Senate Judiciary Committee Chairman Dick Durbin (D-Ill.) announced the committee would vote on advancing Jackson's nomination on April 4.^[16]
March 21, 2022: Jackson's Senate confirmation hearings began.
March 2, 2022:
- Jackson met with Senate Majority Leader Chuck Schumer (D-N.Y.), Senate Minority Leader Mitch McConnell (R-Ky.), Senate Judiciary Committee Chairman Dick Durbin (D-Ill.), and Senate Judiciary Committee Ranking Member Chuck Grassley (R-Iowa).^[17]
- Durbin announced Jackson's confirmation hearings would begin on March 21.^[18]
March 1, 2022: The Senate Judiciary Committee released Jackson's nominee questionnaire.^[19]
February 28, 2022: The Senate received Jackson's nomination.^[12]
February 27, 2022: Chairman of the Senate Judiciary Committee Dick Durbin (D-Ill.) said he had transmitted the Supreme Court nominee questionnaire to the White House.^[20]
February 25, 2022:
- President Joe Biden (D) officially announced he would nominate Ketanji Brown Jackson, a judge on the United States Court of Appeals for the District of Columbia Circuit, to fill the vacancy.^[21]
- The Associated Press' Colleen Long, Michael Balsamo, and Zeke Miller reported that Biden would nominate Ketanji Brown Jackson to fill the vacancy.^[22]
February 22, 2022: CNN reported that Biden had interviewed J. Michelle Childs, Leondra Kruger, and Ketanji Brown Jackson.^[23]
February 13, 2022: Sen. Ben Ray Luján (D-N.M.) said he would return to the Senate to vote for Biden's Supreme Court nominee. He said he would be returning from medical leave in a few weeks.^[24]
January 27, 2022: President Joe Biden (D) and Breyer officially announced Breyer would retire at the start of the court's summer recess, which typically takes place in late June or early July. Biden said he would announce a nominee by the end of February.^[25]^[26]
January 26, 2022: NBC News reported that Justice Stephen Breyer would retire from the Supreme Court after the end of the 2021-2022 term.^[27]

Swearing-in

Jackson's swearing-in took place on June 30, 2022, the same day Breyer's retirement took effect.^[1] Biden signed Jackson's commission on April 8, 2022.^[11] The Justice Department’s Office of Legal Counsel issued an opinion on April 6 saying Biden could prospectively appoint Jackson before Breyer left the court.^[28]

Confirmation vote

See also: Ketanji Brown Jackson confirmation hearings and votes

On April 7, the Senate voted 53-47 to confirm Jackson to the United States Supreme Court.^[6]

All 48 Democrats voted yea
The two Independents who caucus with Democrats voted yea
Sens. Susan Collins (R-Maine), Lisa Murkowski (R-Alaska), and Mitt Romney (R-Utah) voted yea
47 Republicans voted nay

Senate vote to confirm Ketanji Brown Jackson to the United States Supreme Court
Senator	Party	State	Vote
Baldwin	Democratic	WI	Yea
Barrasso	Republican	WY	Nay d
Bennet	Democratic	CO	Yea
Blackburn	Republican	TN	Nay d
Blumenthal	Democratic	CT	Yea
Blunt	Republican	MO	Nay d
Booker	Democratic	NJ	Yea
Boozman	Republican	AR	Nay d
Braun	Republican	IN	Nay d
Brown	Democratic	OH	Yea
Burr	Republican	NC	Nay d
Cantwell	Democratic	WA	Yea
Capito	Republican	WV	Nay d
Cardin	Democratic	MD	Yea
Carper	Democratic	DE	Yea
Casey	Democratic	PA	Yea
Cassidy	Republican	LA	Nay d
Collins	Republican	ME	Yea
Coons	Democratic	DE	Yea
Cornyn	Republican	TX	Nay d
Cortez Masto	Democratic	NV	Yea
Cotton	Republican	AR	Nay d
Cramer	Republican	ND	Nay d
Crapo	Republican	ID	Nay d
Cruz	Republican	TX	Nay d
Daines	Republican	MT	Nay d
Duckworth	Democratic	IL	Yea
Durbin	Democratic	IL	Yea
Ernst	Republican	IA	Nay d
Feinstein	Democratic	CA	Yea
Fischer	Republican	NE	Nay d
Gillibrand	Democratic	NY	Yea
Graham	Republican	SC	Nay d
Grassley	Republican	IA	Nay d
Hagerty	Republican	TN	Nay d
Hassan	Democratic	NH	Yea
Hawley	Republican	MO	Nay d
Heinrich	Democratic	NM	Yea
Hickenlooper	Democratic	CO	Yea
Hirono	Democratic	HI	Yea
Hoeven	Republican	ND	Nay d
Hyde-Smith	Republican	MS	Nay d
Inhofe	Republican	OK	Nay d
Johnson	Republican	WI	Nay d
Kaine	Democratic	VA	Yea
Kelly	Democratic	AZ	Yea
Kennedy	Republican	LA	Nay d
King	Independent	ME	Yea
Klobuchar	Democratic	MN	Yea
Lankford	Republican	OK	Nay d
Leahy	Democratic	VT	Yea
Lee	Republican	UT	Nay d
Lujan	Democratic	NM	Yea
Lummis	Republican	WY	Nay d
Manchin	Democratic	WV	Yea
Markey	Democratic	MA	Yea
Marshall	Republican	KS	Nay d
McConnell	Republican	KY	Nay d
Menendez	Democratic	NJ	Yea
Merkley	Democratic	OR	Yea
Moran	Republican	KS	Nay d
Murkowski	Republican	AK	Yea
Murphy	Democratic	CT	Yea
Murray	Democratic	WA	Yea
Ossoff	Democratic	GA	Yea
Padilla	Democratic	CA	Yea
Paul	Republican	KY	Nay d
Peters	Democratic	MI	Yea
Portman	Republican	OH	Nay d
Reed	Democratic	RI	Yea
Risch	Republican	ID	Nay d
Romney	Republican	UT	Yea
Rosen	Democratic	NV	Yea
Rounds	Republican	SD	Nay d
Rubio	Republican	FL	Nay d
Sanders	Independent	VT	Yea
Sasse	Republican	NE	Nay d
Schatz	Democratic	HI	Yea
Schumer	Democratic	NY	Yea
Scott	Republican	FL	Nay d
Scott	Republican	SC	Nay d
Shaheen	Democratic	NH	Yea
Shelby	Republican	AL	Nay d
Sinema	Democratic	AZ	Yea
Smith	Democratic	MN	Yea
Stabenow	Democratic	MI	Yea
Sullivan	Republican	AK	Nay d
Tester	Democratic	MT	Yea
Thune	Republican	SD	Nay d
Tillis	Republican	NC	Nay d
Toomey	Republican	PA	Nay d
Tuberville	Republican	AL	Nay d
Van Hollen	Democratic	MD	Yea
Warner	Democratic	VA	Yea
Warnock	Democratic	GA	Yea
Warren	Democratic	MA	Yea
Whitehouse	Democratic	RI	Yea
Wicker	Republican	MS	Nay d
Wyden	Democratic	OR	Yea
Young	Republican	IN	Nay d

Statements and reactions to Ketanji Brown Jackson's nomination

The section below provides official statements from noteworthy individuals regarding Jackson's nomination.

President Joe Biden (D)

“

Today, as we watch freedom and liberty under attack abroad, I’m here to fulfill my responsibilities under the Constitution to preserve freedom and liberty here in the United States of America.

And it’s my honor to introduce to the country a daughter of former public school teachers, a proven consensus builder, an accomplished lawyer, a distinguished jurist — one of the nation’s most — on one of the nation’s most prestigious courts. My nominee for the United States Supreme Court is Judge Ketanji Jackson.

You know, four weeks ago, when a member of the Court — a friend of mine; we used to work together in the Senate — Justice Stephen Breyer, announced his retirement, I said then choosing someone to serve on the United States Supreme Court is one of the most serious constitutional responsibilities a President has. And I mean it.

I promised the process would be rigorous, that I would select a nominee worthy of Justice Breyer’s legacy of excellence and decency — someone extremely qualified, with a brilliant legal mind, with the utmost character and integrity, which are equally as important.

And that I would bring this decision — to this decision my perspective as a lawyer; a former Constitutional law professor; chairman of the Judiciary Committee for many, many years; and — I’m almost reluctant to say it — someone who has presided over more Supreme Court nominations than almost anyone living today, which makes me 28 years old — (laughter) — I started doing it when I was 32 — and who has devoted much of my career to thinking about the Constitution and the role of the Supreme Court.

With that perspective, I carefully studierd [sic] the re- — studied the records of candidates. I’ve invited senators of both parties to offer their ideas and points of view, and I’ve met with a number of them.

As a result, because I truly respect not only the consent — I know they give consent, but it says — the Constitution says ”advice and consent,” and I sought the advice of Democrats and Republicans.

I’ve consulted with leading legal scholars and lawyers.

And I’ve been fortunate to have the advice of the — Vice President Harris — and I mean this sincerely — an exceptional lawyer, a former Attorney General of California, and a former member of the Senate Judiciary Committee.

And during this process, I looked for someone who, like Justice Breyer, has a pragmatic understanding that the law must work for the American people. Someone who has the historical perspective to understand that the Constitution is a resilient charter of liberty. Someone with the wisdom to appreciate that the Constitution protects certain inalienable rights — rights that fall within the most fundamental personal freedoms that our society recognizes.

And then, someone with extraordinary character, who will bring to the Supreme Court an independent mind, uncompromising integrity, and with a strong moral compass and the courage to stand up for what she thinks is right.

For too long, our government, our courts haven’t looked like America. And I believe it’s time that we have a Court that reflects the full talents and greatness of our nation with a nominee of extraordinary qualifications and that we inspire all young people to believe that they can one day serve their country at the highest level.

I’ve admired these traits of pragmatism, historical perspective, wisdom, character in the jurists nominated by Republican presidents as well as Democratic presidents.

And today, I’m pleased to introduce to the American people a candidate who continues in this great tradition.

Judge Jackson grew up in Miami, Florida. And by the way, the mayor of Miami — a Republican — endorsed you; I thought that was interesting. Her parents grew up with segregation but never gave up hope that their children would enjoy the true promise of America.

Her parents graduated from Historic Brac- — Black Colleges and become public school teachers — her mom, a principal; her Dad, a teacher, who later went back to school and became a lawyer representing that very school district — that school board.

Judge Jackson describes finding her love for the law from an apartment complex at the University of Miami where her dad was attending law school. She’d draw in her coloring book at the dining room table, next to her dad’s law books.

She grew up to be a star student — elected mayor of her junior high school and president of her high school class, where she was a standout — she was a standout on the speech and debate team.

And it was after a debate tournament that took place at Harvard when she was in high school that she believed she could one day be a student there. There were those who told her she shouldn’t set her sights too high, but she refused to accept limits others set for her.

She did go on to Harvard undergraduate school, where she graduated magna cum laude. She went into — to attend Harvard Law School, where she was a top student and editor of the prestigious Law Review.

Then she applied for a highly competitive and coveted clerkship on the United States Supreme Court, and she was selected.

The justice who thought that she was worthy of this high honor was a young lawyer. It was none other than Justice Stephen Breyer, who’s seat I am nominating her to fill.

Not only did she learn about being a judge from Justice Breyer himself, she saw the great rigor through which Justice Breyer approached his work. She learned from his willingness to work with colleagues with different viewpoints — critical qualities for — in my view, for any Supreme Court Justice.

Now, years later, she steps up to fill Justice Breyer’s place on the Court with a uniquely accomplished and wide-ranging background.

She has served both in public service as a federal public defender — a federal public defender and in private law practice as an accomplished lawyer in pr- — with a prestigious law firm.

If confirmed, she will join Justice Sotomayor as the only other member of the United States Supreme Court who has experience as a trial court judge –- a critical qualification, in my view.

And once again following in the footsteps of her mentor, Justice Breyer, she would become the only member of the Court who previously served as a member of the United States Sentencing Commission.

And she brings an additional perspective to the Court as well. She comes from a family of law enforcement, with her brother and uncles having served as police officers.

That’s one reason, I expect, why the Fraternal Order of Police — the national organization — today said, and I quote, “There is little doubt [that] she has the temperament, the intellect, and the legal experience, and family background to have earned this appointment.” And they went on to say they are confident she will, quote, “approach her future cases with an open mind and treat issues related to law enforcement fairly and justly.”

Incredibly, Judge Jackson has already been confirmed by the United States Senate three times.

First, to serve on the U.S. Sentencing Commission — a bipartisan, independent commission we help — I helped design to reduce the unwarranted disparities in sentencing and promote transparency and fairness in the criminal justice system.

On the commission, Judge Jackson was known for working with Democrats and Republicans to find common ground on critical issues.

Second, she was concerned by — confirmed by the United States Senate with bipartisan support on the federal district court to administer justice with the special rigors and fairness that come with presiding over trials.

And third, she was confirmed with a bipartisan Senate vote to serve on U.S. Court of Appeals for the District of Columbia, considered the second most powerful court behind the Supreme Court itself and the court she once argued cases before as a distinguished advocate.

And when Judge Jackson was nominated to this Circuit Court, one of its distinguished retired members, Judge Thomas Griffith, a former general counsel of Brigham Young University and a George Bush appointee to that court said he backed her “enthusiastically,” hailing her — hailing her “exemplary legal career in both public and private practice” and, he went on to say, her “careful approach” as a trial court judge.

Judge Jackson’s service on the District Circuit Court of — for the D.C. Circuit Court of Appeals is another superb qualification for service on the Supreme Court.

Three of her — of the current Supreme Court Justices also served with the D.C. Circuit judges where Judge Jackson now serves.

Her opinions are always carefully reasoned, tethered to precedent, and demonstrate refrect — respect for how the law impacts everyday people. It doesn’t mean she puts her thumb on the scale of justice one way or the other, but she understands the broader impact of her decisions.

Whether it’s cases addressing the rights of workers or government service, she cares about making sure that our democracy works for the American people.

She listens. She looks people in the eye — lawyers, defendants, victims, and families.

And she strives to ensure that everyone understands why she made a decision, what the law is, and what it means to them. She strives to be fair, to get it right, to do justice.

That’s something all of us should remember, and it’s something I’ve thought about throughout this process. And as a matter of fact, I thought about it walking over here with her.

One floor below, we have several displays celebrating Black History Month. One of them includes the judicial oath of office taken and signed by Justice Thurgood Marshall himself — an oath that will be once again administered to a distinguished American who will help write the next chapter in the history of the journey of America — a journey that Judge Jackson will take with her family.

I hope I don’t embarrass him, but her husband, Patrick — a surgeon — Dr. Patrick, stand up. Let them see who you are. There you go. They met when they were undergraduate students at Harvard, and he’s a distinguished cancer surgeon at Georgetown.

And like so many women in this country, Judge Jackson is a working mom. She had her eldest child, Talia, when she was a private lawyer in practice. She had her second child, Leila, when she served as U- — on the U.S. Sentencing Commission. Stand up, Leila. I asked Leila, when I showed her through the office, whether she’d like to be president. She looked, “No, I don’t know about that.” (Laughter.) There’s other things that — anyway, Leila, you’re welcome to be here. Thank you so much.

And welcome your sister, who’s up in school in Rhode Island now.

I have children and grandchildren. Let me tell you, Judge, you’re always a mom. That’s not going to change no matter what you’re doing. You’re on — whether you’re on the Supreme Court or not.

And I’ve always had a deep respect for the Supreme Court and judiciary as a coequal branch of the government, and I mean it. The Court is equally as important as the presidency or the Congress. It’s coequal.

So, today, I’m pleased to nominate Judge Jackson, who will bring extraordinary qualifications, deep experience and intellect, and a rigorous judicial record to the Court.

Judge Jackson deserves to be confirmed as the next justice of the Supreme Court. I’ve met with the chairman and ranking members of the Senate Judiciary Committee, Senator Dick Durbin, Senator Chuck Grassley, and my hope is that they will move promptly, and I know they’ll move fairly.

Judge Jackson, congratulations.^[29]^[30]

”

Senate Majority Leader Chuck Schumer (D-N.Y.)

“

With her exceptional qualifications and record of evenhandedness, Judge Ketanji Brown Jackson will be a Justice who will uphold the constitution and protect the rights of all Americans, including the voiceless and vulnerable. A true public servant and model jurist, Judge Jackson has demonstrated a commitment to America’s foundational principles of freedom, equality, and the rule of law throughout her career. As a clerk for Justice Stephen Breyer, an assistant federal public defender, a federal district court judge, and most recently as a judge on the U.S. Court of Appeals for the D.C. Circuit, Judge Jackson has shown brilliance, thoughtfulness, a willingness to collaborate, and a dedication to applying the law impartially.

The historic nomination of Judge Jackson is an important step toward ensuring the Supreme Court reflects the nation as a whole. As the first Black woman Supreme Court Justice in the Court’s 232-year-history, she will inspire countless future generations of young Americans. Senate Democrats spent the past year working with President Biden to shape a federal judicial system that fully represents America and we will continue that trend by confirming Judge Jackson to the Supreme Court.

I commend President Biden on undertaking a thoughtful, deliberate selection process for the next Supreme Court Justice. Once the President sends Judge Jackson’s nomination to the Senate, Senate Democrats will work to ensure a fair, timely, and expeditious process – fair to the nominee, to the Senate, and to the American public. Under Chairman Durbin’s leadership, Judge Jackson will receive a prompt hearing in the Senate Judiciary Committee in the coming weeks. After the Judiciary Committee finishes their work I will ask the Senate to move immediately to confirm her to the Supreme Court.

I have no doubt that Judge Jackson would make an outstanding Supreme Court Justice. Judge Ketanji Brown Jackson has been confirmed by the United States Senate on a bipartisan basis three times and I expect she will again earn bipartisan support in the Senate.^[31]^[30]

”

Senate Minority Leader Mitch McConnell (R-Ky.)

“

I congratulate Judge Jackson on her nomination. I look forward to meeting with her in person and studying her record, legal views, and judicial philosophy.

Senate Republicans believe the Court and the country deserve better than Senate Democrats’ routine of baseless smears and shameless distortions. The Senate must conduct a rigorous, exhaustive review of Judge Jackson’s nomination as befits a lifetime appointment to our highest Court. This is especially crucial as American families face major crises that connect directly to our legal system, such as skyrocketing violent crime and open borders.

I voted against confirming Judge Jackson to her current position less than a year ago. Since then, I understand that she has published a total of two opinions, both in the last few weeks, and that one of her prior rulings was just reversed by a unanimous panel of her present colleagues on the D.C. Circuit. I also understand Judge Jackson was the favored choice of far-left dark-money groups that have spent years attacking the legitimacy and structure of the Court itself.

With that said, I look forward to carefully reviewing Judge Jackson’s nomination during the vigorous and thorough Senate process that the American people deserve.^[32]^[30]

”

Chairman of the Senate Judiciary Committee Dick Durbin (D-Ill.)

“

From a strong list of prospective candidates, President Biden has chosen an extraordinary nominee in D.C. Circuit Judge Ketanji Brown Jackson. To be the first to make history in our nation you need to have an exceptional life story. Judge Jackson’s achievements are well known to the Senate Judiciary Committee as we approved her to the D.C. Circuit less than a year ago with bipartisan support. We will begin immediately to move forward on her nomination with the careful, fair, and professional approach she and America are entitled to.^[33]^[30]

”

Ranking member of the Senate Judiciary Committee Chuck Grassley (R-Iowa)

“

I congratulate Judge Jackson on her nomination to the high court.

The judgments of a justice can affect the lives of every American in perpetuity. It’s critical that any such nominee, including Judge Jackson, receive the most thorough and rigorous vetting. Our review will be as fair and respectful as it is complete and comprehensive. That is what this process demands and what the American people expect.

Justices must have an unwavering commitment to the Constitution—including its limitations on the power of the courts. A justice must also be an unfailing defender of the institution of the court, as Justice Breyer has been.

As I always have, I’ll make my determination based on the experience, qualifications, temperament and judicial philosophy of the nominee. I look forward to meeting with Judge Jackson face to face on Capitol Hill in the coming days, and working with Senator Durbin to finalize the committee’s initial questionnaire and records request, as is customary in this process.

As ranking member, I have no intention of degrading the advice and consent role as Senate Democrats have in recent confirmations. I intend to show up and do the job that Iowans pay me to do.^[34]^[30]

”

Official statements regarding the retirement of Stephen Breyer

Beyond his intellect and hard work and legal insight, he was famous for biking across Washington virtually every day for a face-to-face meeting with a Republican chief counsel — the ranking Republican counsel. And over breakfast, they’d discuss what would they do for the country together. Whereas, in those days, we tried to do things together. They — that spirit stuck with me when I took over the Judiciary Committee as Chair after Senator Kennedy’s tenure.

And it was my honor to vote to confirm Justice Breyer to serve in the United States Supreme Court — the Court of Appeals first, in 1980.

And then, 14 years later, in 1994, I got to preside as Chairman of the Senate Judiciary Committee over his Supreme Court confirmation hearings.

We were joking with one another when he walked in: Did we ever think that he would have served decades on the Court and I’d be President of the United States on the day he came in to retire? And he looked at it — anyway, I won’t tell you what he said. I’m joking.

But I was proud and grateful to be there at the start of this distinguished career on the Supreme Court, and I’m very proud to be here today on his announcement of his retirement.

You know, during his confirmation hearings, way back in 1994, nominee Stephen Breyer said, quote, “The law must work for [the] people.”

He explained to us his faith that our complex legal system has a single purpose: to help the people who make up our country. It was a different time, of course. But his brilliance, his values, his scholarship are why Judge Breyer became Justice Breyer by an overwhelming bipartisan vote at the time.

Today, Justice Breyer announces his intention to step down from active service after four decades — four decades on the federal bench and 28 years on the United States Supreme Court.

His legacy includes his work as a leading scholar and jurist in administrative law, bringing his brilliance to bear to make the government run more efficiently and effectively.

It includes his stature as a beacon of wisdom on our Constitution and what it means.

And through it all, Justice Breyer has worked tirelessly to give faith to the notion that the law exists to help the people.

Everyone knows that Stephen Breyer has been an exemplary justice — fair to the parties before him, courteous to his colleagues, careful in his reasoning.

He’s written landmark opinions on topics ranging from reproductive rights to healthcare, to voting rights, to patent laws, to laws protecting our environment, and the laws that protect our religious practices.

His opinions are practical, sensible, and nuanced. It reflects his belief that a job of a judge is not to lay down a rule, but to get it right — to get it right.

Justice Breyer’s law clerks and his colleagues, as many of the press here know, describe him and his work ethic — his desire to learn more, his kindness to those around him, and his optimism for the promise of our country. And he has patiently sought common ground and built consensus, seeking to bring the Court together.

I think he’s a model public servant in a time of great division in this country. Justice Breyer has been everything his country could have asked of him.

And he’s appeared before — when he appeared before the Judiciary Committee almost three decades ago, we all had high hopes for the mark he would leave on history, the law, and the Constitution. And he’s exceeded those hopes in every possible way.

Today is his day — our day to commend his — his life of service and his life on the Court. But let me say a few words about the critically important work of selecting his successor.

Choosing someone to sit on the Supreme Court, I believe, is one of the most serious constitutional responsibilities a President has. Our process is going to be rigorous. I will select a nominee worthy of Justice Breyer’s legacy of excellence and decency.

While I’ve been studying candidates’ backgrounds and writings, I’ve made no decisions except one: The person I will nominate will be someone with extraordinary qualifications, character, experience, and integrity, and that person will be the first Black woman ever nominated to the United States Supreme Court.

It’s long overdue, in my view. I made that commitment during the campaign for President, and I will keep that commitment.

I will fully do what I said I’d do: I will fulfill my duty to select a justice not only with the Senate’s consent, but with its advice.

You’ve heard me say in other nomination processes that the Constitution says seek the “advice and consent,” but the advice as well of the Senate. I’m going to invite senators from both parties to offer their ideas and points of view.

I’ll also consult with leading scholars and lawyers. And I am fortunate to have advising me in this selection process Vice President Kamala Harris. She’s an exceptional lawyer, a former Attorney General of the State of California, a former member of the Senate Judiciary Committee.

I will listen carefully to all the advice I’m given, and I will study the records and former cases carefully. I’ll meet with the potential nominees. And it is my intention — my intention to announce my decision before the end of February.

I have made no choice at this point. Once I select a nominee, I’ll ask the Senate to move promptly on my choice.

In the end, I will nominate a historic candidate, someone who is worthy of Justice Breyer’s legacy and someone who, like Justice Breyer, will provide incredible service on the United States Supreme Court.

Justice Breyer, on behalf of all the American people, I want to thank you and your family — and your family for your tremendous service to our nation.^[36]^[30]

”

Congressional leadership

Senate Majority Leader Chuck Schumer (D-N.Y.)

“

For virtually his entire adult life, including a quarter century on the U.S. Supreme Court, Stephen Breyer has served his country with the highest possible distinction. He is, and always has been, a model jurist. He embodies the best qualities and highest ideals of American justice: knowledge, wisdom, fairness, humility, restraint. His work and his decisions as an Associate Justice on the biggest issues of our time – including voting rights, the environment, women’s reproductive freedom, and most recently, health care and the Affordable Care Act – were hugely consequential. America owes Justice Breyer an enormous debt of gratitude.^[37]^[30]

”

Senate Minority Leader Mitch McConnell (R-Ky.)

“

I congratulate Justice Breyer on nearly three decades of thoughtful and consequential service on the Supreme Court, capping forty-plus years of total service on the federal bench.

Justice Breyer commands respect and affection across the legal world, including from those who disagree with his judicial philosophy and conclusions in cases. This respect is rooted in Justice Breyer’s intelligence, rigor, and good-faith scholarly engagement. By all accounts, both personally and professionally, he has rendered exemplary service on our nation’s highest Court.

Justice Breyer’s commitment to the importance of a nonpartisan, non-politicized judiciary has been especially admirable. Even in the face of undue criticism from the modern political left, Justice Breyer has remained a principled voice against destructive proposals such as partisan court-packing that would shatter public trust in the rule of law.

I congratulate Justice Breyer, his wife Joanna, their children, and their entire family as the Breyers prepare to close this remarkable chapter and begin the next.^[38]^[30]

”

House Speaker Nancy Pelosi (D-Calif.)

“

When Justice Stephen Breyer departs from the bench, the Supreme Court and the Country will lose a leader of honor and integrity, a defender of liberty, justice and the Constitution, and a guardian of our fundamental rights. At the ceremony with President Biden this morning announcing his departure from the Court, Justice Breyer’s remarks were patriotic, inspiring and confident in America’s future.

Justice Breyer has championed liberty not merely as freedom from oppression, but as freedom to participate fully in our democracy – paving the way for great progress in our nation. His important rulings have expanded the promise of freedom, whether protecting women’s reproductive freedoms, ensuring that all are equally represented in the Census, or upholding the constitutionality of the Affordable Care Act and the transformational protections it provides every American. His respect for the legislative judgments of Congress has upheld and strengthened the balance of powers that is a cornerstone of our Constitution. With his abiding faith in civic participation, and committed engagement with young people and students, Justice Breyer has helped ensure that our democracy does, as our Founders intended, work For The People.

For his legal brilliance, his unwavering integrity and his firm devotion to safeguarding our democracy, Justice Breyer will leave a remarkable legacy. As a native son of San Francisco, our city takes extraordinary pride in Justice Breyer’s more than four decades of distinguished service on the federal bench. We thank the Breyer family for sharing him with the Country.^[39]^[30]

”

Supreme Court justices

Justice John Roberts

“

Justice Stephen G. Breyer is an energetic jurist and dear friend. He has rendered nearly half a century of distinguished public service to our country, including 42 years as a federal judge—27 as a Member of this Court. His pragmatism, encyclopedic knowledge, and varied government experience have enriched the Court’s deliberations. And his fanciful hypotheticals during oral argument have befuddled counsel and colleagues alike.

The usual nomination process starts with the president choosing a nominee. It is not uncommon for the president to consult Senate leadership and the leaders of the Senate Judiciary Committee before deciding on a nominee.^[56]^[57]

The Senate Judiciary Committee then considers the nominee. The committee conducts a rigorous investigation into the nominee’s background, gleaning a sense of his or her judicial philosophy and temperament, which helps inform whether the senator will support the nominee. During this part of the process, the American Bar Association's Standing Committee on Federal Judiciary reviews the nominee. The nominee also visits with senators in their offices in order to help win support for nomination. The most public aspect of the process is when the nominee testifies before the Judiciary Committee and takes questions. The hearing, which is kept open at the discretion of the chairman, can last more than a day, as members, particularly opponents, verbally spar with the nominee. Having the nominee appear before the committee became a part of the process beginning with the nomination of John M. Harlan in 1955. The first televised Supreme Court nomination hearing took place in 1981 for Sandra Day O’Connor.^[56]^[57]

The Senate Judiciary Committee holds a vote on the nominee, typically a week after the hearing is adjourned. The committee’s practice has been to send the nomination, whether or not the nominee wins a majority, to the full Senate to allow the chamber to decide whether he or she should be confirmed.^[56]^[57]

The debate in the Senate is scheduled by the Senate majority leader in consultation with the minority leader, and a confirmation vote is held. On April 6, 2017, during the process of confirming Justice Neil Gorsuch to the Supreme Court, the Senate lowered the threshold to close debate on Supreme Court nominations to a simple majority from 60 votes. According to the Congressional Research Service, "The practical effect of the Senate action on April 6 was to reduce the level of Senate support necessary to confirm a Supreme Court nominee."^[56]^[58]

The president also may choose to make a recess appointment, which would avoid the need for Senate confirmation. But the justice's term would end with the end of the next session of Congress, rather than the lifetime appointments provided by Senate confirmation. There have been 12 recess appointments made to the Supreme Court, most in the 19th century, according to the Congressional Research Service. The most recent was made by President Dwight D. Eisenhower, who gave Justice Potter Stewart a recess appointment on October 14, 1958, to a seat vacated by Justice Harold Burton. Justice Stewart was nominated by Eisenhower to the same seat on January 17, 1959, and was confirmed by the U.S. Senate on May 5, 1959.^[56]^[57]^[59]

Historic context

Confirmation votes

The table and chart below show total yes votes for nominees confirmed to the United States Supreme Court since 1962.^[60]^[61] Byron White, Arthur Goldberg, and Abe Fortas are excluded from the chart since they were confirmed by voice vote.

HIGHLIGHTS

Amy Coney Barrett was the only nominee to be confirmed with yes votes from only one party.

Among those nominated by Democratic presidents, Ruth Bader Ginsburg received the highest number of Republican yes votes (41).

Among those nominated by Republican presidents, John Paul Stevens received the highest number of Democratic yes votes (59).

Sandra Day O'Connor received the highest total number of yes votes (99).

United States Supreme Court confirmation votes, 1962-2020
Nominee	President	Total yes votes	Democratic yes votes	Republican yes votes	Independent and minor party yes votes
Amy Coney Barrett	Donald Trump (R)	52	0	52	0
Brett Kavanaugh	Donald Trump (R)	50	1	49	0
Neil Gorsuch	Donald Trump (R)	54	3	51	0
Elena Kagan	Barack Obama (D)	63	56	5	2^[62]
Sonia Sotomayor	Barack Obama (D)	68	57	9	2^[63]
Samuel Alito	George W. Bush (R)	58	4	54	0
John Roberts	George W. Bush (R)	78	22	55	1^[64]
Stephen Breyer	Bill Clinton (D)	87	54	33	0
Ruth Bader Ginsburg	Bill Clinton (D)	96	55	41	0
Clarence Thomas	George H.W. Bush (R)	52	11	41	0
David H. Souter	George H.W. Bush (R)	90	46	44	0
Anthony Kennedy	Ronald Reagan (R)	97	51	46	0
Antonin Scalia	Ronald Reagan (R)	98	47	51	0
Sandra Day O'Connor	Ronald Reagan (R)	99	45	53	1^[65]
John Paul Stevens	Gerald Ford (R)	98	59	37	2^[66]
William H. Rehnquist	Richard Nixon (R)	68	29	37	2^[67]
Lewis Powell	Richard Nixon (R)	89	49	38	2^[68]
Harry Blackmun	Richard Nixon (R)	94	54	40	0
Warren Burger	Richard Nixon (R)	74	38	36	0
Thurgood Marshall	Lyndon Johnson (D)	69	37	32	0
Abe Fortas	Lyndon Johnson (D)	Confirmed by voice vote	N/A	N/A	N/A
Arthur Goldberg	John Kennedy (D)	Confirmed by voice vote	N/A	N/A	N/A
Byron White	John Kennedy (D)	Confirmed by voice vote	N/A	N/A	N/A

Prior judicial experience

The table and chart below show justices' judicial experience in years before being nominated to the Supreme Court. This data was originally compiled by Stephen Vladeck, professor of law at the University of Texas School of Law.^[69]^[70]

Prior judicial experience of Supreme Court Justices in years, 1900-2020
Nominee	President	Federal		State		Total
Nominee	President	Appellate	Trial	Appellate	Trial	Total
Amy Coney Barrett	Donald Trump	2.99	0	0	0	2.99
Brett Kavanaugh	Donald Trump	12.36	0	0	0	12.36
Neil Gorsuch	Donald Trump	10.67	0	0	0	10.67
Elena Kagan	Barack Obama	0	0	0	0	0
Sonia Sotomayor	Barack Obama	10.83	6.15	0	0	16.99
Samuel Alito	George W. Bush	15.76	0	0	0	15.76
John Roberts	George W. Bush	2.33	0	0	0	2.33
Stephen Breyer	Bill Clinton	13.65	0	0	0	13.65
Ruth Bader Ginsburg	Bill Clinton	13.11	0	0	0	13.11
Clarence Thomas	George H.W. Bush	1.62	0	0	0	1.62
David Souter*	George H.W. Bush	0.38	0	7.00	5.00	12.38
Anthony Kennedy	Ronald Reagan	12.71	0	0	0	12.71
Antonin Scalia	Ronald Reagan	4.11	0	0	0	4.11
Sandra Day O'Connor	Ronald Reagan	0	0	1.78	4.93	6.72
John Paul Stevens	Gerald Ford	5.13	0	0	0	5.13
William Rehnquist	Richard Nixon	0	0	0	0	0
Lewis Powell	Richard Nixon	0	0	0	0	0
Harry Blackmun	Richard Nixon	10.72	0	0	0	10.72
Warren Burger	Richard Nixon	13.24	0	0	0	13.24
Thurgood Marshall	Lyndon Johnson	3.89	0	0	0	3.89
Abe Fortas	Lyndon Johnson	0	0	0	0	0
Arthur Goldberg	John F. Kennedy	0	0	0	0	0
Byron White	John F. Kennedy	0	0	0	0	0
Potter Stewart	Dwight Eisenhower	4.47	0	0	0	4.47
Charles Whittaker	Dwight Eisenhower	0.80	1.96	0	0	2.76
William Brennan*	Dwight Eisenhower	0	0	5.54	1.50	7.04
John Harlan II	Dwight Eisenhower	1.13	0	0	0	1.13
Earl Warren	Dwight Eisenhower	0	0	0	0	0
Sherman Minton	Harry S. Truman	8.39	0	0	0	8.39
Tom Clark	Harry S. Truman	0.00	0	0	0	0.00
Frederick Vinson	Harry S. Truman	5.45	0	0	0	5.45
Harold Burton	Harry S. Truman	0.00	0	0	0	0.00
Wiley Rutledge	Franklin D. Roosevelt	3.79	0	0	0	3.79
Robert H. Jackson	Franklin D. Roosevelt	0	0	0	0	0
James Byrnes	Franklin D. Roosevelt	0	0	0	0	0
Frank Murphy	Franklin D. Roosevelt	0	0	0	6.73	6.73
William Douglas	Franklin D. Roosevelt	0	0	0	0	0
Felix Frankfurter	Franklin D. Roosevelt	0	0	0	0	0
Stanley Reed	Franklin D. Roosevelt	0	0	0	0	0
Hugo Black*	Franklin D. Roosevelt	0	0	0	1.00	1.00
Benjamin Nathan Cardozo	Herbert Hoover	0	0	15.15	3.03	18.17
Owen Josephus Roberts	Herbert Hoover	0	0	0	0	0
Harlan Fiske Stone	Calvin Coolidge	0	0	0	0	0
Edward Terry Sanford	Warren Harding	0	14.72	0	0	14.72
Pierce Butler	Warren Harding	0	0	0	0	0
George Sutherland	Warren Harding	0	0	0	0	0
William Howard Taft	Warren Harding	8.00	0	0	0	8.00
John Hessin Clarke	Woodrow Wilson	0	2.01	0	0	2.01
Louis Brandeis	Woodrow Wilson	0	0	0	0	0
James Clark McReynolds	Woodrow Wilson	0	0	0	0	0
Mahlon Pitney*	William Howard Taft	0	0	11.00	0	11.00
Joseph Rucker Lamar*	William Howard Taft	0	0	4.00	0	4.00
Willis Van Devanter	William Howard Taft	7.87	0	0	0	7.87
Charles Evans Hughes	William Howard Taft	0	0	0	0	0
Horace Harmon Lurton	William Howard Taft	16.74	0	0	0	16.74
William Henry Moody	Theodore Roosevelt	0	0	0	0	0
William Rufus Day	Theodore Roosevelt	3.99	0	0	0	3.99
Oliver Wendell Holmes	Theodore Roosevelt	0	0	19.97	0	19.97
* Missing precise dates for court service.

Vacancies: departure date to swearing-in of successor

The average vacancy length on the Supreme Court since 1962—when defined as the length of time elapsed between a Justice’s departure date and the swearing-in of their successor into the position—is 86 days. Four of these vacancies lasted for only a few hours each; the successor was sworn in the same day the retiring Justice officially left office. The longest vacancy under this definition was 422 days, following the death of Justice Antonin Scalia.

The second longest vacancy in that time was 391 days after Justice Abe Fortas retired on May 14, 1969, in the wake of a series of ethics scandals.^[71] First-term president Richard Nixon (R) nominated two different successors for Fortas—Clement Haynsworth, a Fourth Circuit Appeals Judge, and Harold Carswell, a Fifth Circuit Appeals Judge. The Senate rejected both. Nixon’s third nominee, Eighth Circuit Appeals Judge Harry Blackmun, was confirmed on May 12, 1970, and sworn in on June 9, 1970—391 days, after Fortas’ retirement.^[72]

The third longest vacancy in this time frame was between the terms of Lewis Franklin Powell and Anthony Kennedy. Powell retired on June 26, 1987. The Senate confirmed Kennedy on February 3, 1988. He was sworn in on February 18, 1988, making for a 237 day vacancy from Powell's retirement to Kennedy's swearing-in. Like Blackmun, Kennedy’s confirmation by the Senate followed two rejections. President Ronald Reagan (R) nominated him on November 30, 1987.^[73]

Supreme Court vacancy lengths, 1962 - 2020, departure to swear-in
Justice	Departure date	Successor	Swearing-in date of successor	Length of vacancy (days)
Ruth Bader Ginsburg	9/18/2020	Amy Coney Barrett	10/26/2020	38
Anthony Kennedy	7/31/2018	Brett Kavanaugh	10/7/2018	68
Antonin Scalia	2/13/2016	Neil Gorsuch	4/10/2017	422
John Paul Stevens	6/29/2010	Elena Kagan	8/7/2010	39
David Souter	6/29/2009	Sonia Sotomayor	8/8/2009	40
Sandra Day O'Connor	1/31/2006	Samuel Alito	1/31/2006	0
William Rehnquist	9/3/2005	John Roberts	9/29/2005	26
Harry Blackmun	8/3/1994	Stephen Breyer	8/3/1994	0
Byron White	6/28/1993	Ruth Bader Ginsburg	8/10/1993	43
Thurgood Marshall	10/1/1991	Clarence Thomas	10/23/1991	22
William Brennan, Jr.	7/20/1990	David Souter	10/9/1990	81
Lewis Franklin Powell	6/26/1987	Anthony Kennedy	2/18/1988	237
Warren E. Burger	9/26/1986	Antonin Scalia*	9/26/1986	0
Potter Stewart	7/3/1981	Sandra Day O'Connor	9/25/1981	84
William O. Douglas	11/12/1975	John Paul Stevens	12/19/1975	37
John Marshall Harlan	9/23/1971	William Rehnquist	1/7/1972	106
Hugo Black	9/17/1971	Lewis Franklin Powell	1/7/1972	112
Earl Warren	6/23/1969	Warren E. Burger	6/23/1969	0
Abe Fortas	5/14/1969	Harry Blackmun	6/9/1970	391
Tom Clark	6/12/1967	Thurgood Marshall	10/2/1967	112
Arthur Goldberg	7/25/1965	Abe Fortas	10/4/1965	71
Felix Frankfurter	8/28/1962	Arthur Goldberg	10/1/1962	34
Charles Evans Whittaker	3/31/1962	Byron White	4/16/1962	16
Note:* Technically, Burger was succeeded by Rehnquist as Chief Justice. Scalia was then appointed to succeed Rehnquist as an Associate Justice. Sources: Federal Judicial Center, "History of the Federal Judiciary," accessed September 18, 2020 SupremeCourt.gov, "Members of the Supreme Court of the United States," accessed September 18, 2020

Vacancies: departure date to confirmation of successor

When vacancy is defined as the length of time between a Justice’s departure date and the confirmation date of their successor, the average is 76 days. The vacancies between Scalia and Gorsuch and Fortas and Blackmun are still the longest, at 419 and 363 days, respectively. The third longest is between Lewis Powell and Anthony Kennedy, at 222 days.

Supreme Court vacancy lengths, 1962 - 2020, departure to confirmation
Justice	Departure date	Successor	Confirmation date of successor	Length of vacancy (days)
Ruth Bader Ginsburg	9/18/2020	Amy Coney Barrett	10/26/2020	38
Anthony Kennedy	7/31/2018	Brett Kavanaugh	10/6/2018	67
Antonin Scalia	2/13/2016	Neil Gorsuch	4/7/2017	419
John Paul Stevens	6/29/2010	Elena Kagan	8/5/2010	37
David Souter	6/29/2009	Sonia Sotomayor	8/6/2009	38
Sandra Day O'Connor	1/31/2006	Samuel Alito	1/31/2006	0
William Rehnquist	9/3/2005	John Roberts	9/29/2005	26
Harry Blackmun	8/3/1994	Stephen Breyer	7/29/1994	0
Byron White	6/28/1993	Ruth Bader Ginsburg	8/3/1993	36
Thurgood Marshall	10/1/1991	Clarence Thomas	10/15/1991	14
William Brennan, Jr.	7/20/1990	David Souter	10/2/1990	74
Lewis Franklin Powell	6/26/1987	Anthony Kennedy	2/3/1988	222
Warren E. Burger	9/26/1986	Antonin Scalia*	9/17/1986	0
Potter Stewart	7/3/1981	Sandra Day O'Connor	9/21/1981	80
William O. Douglas	11/12/1975	John Paul Stevens	12/17/1975	35
John Marshall Harlan	9/23/1971	William Rehnquist	12/10/1971	78
Hugo Black	9/17/1971	Lewis Franklin Powell	12/6/1971	80
Earl Warren	6/23/1969	Warren E. Burger	6/9/1969	0
Abe Fortas	5/14/1969	Harry Blackmun	5/12/1970	363
Tom Clark	6/12/1967	Thurgood Marshall	8/30/1967	79
Arthur Goldberg	7/25/1965	Abe Fortas	8/11/1965	17
Felix Frankfurter	8/28/1962	Arthur Goldberg	9/25/1962	28
Charles Evans Whittaker	3/31/1962	Byron White	4/11/1962	11
Note:* Technically, Burger was succeeded by Rehnquist as Chief Justice. Scalia was then appointed to succeed Rehnquist as an Associate Justice. Sources: Federal Judicial Center, "History of the Federal Judiciary," accessed September 18, 2020 SupremeCourt.gov, "Members of the Supreme Court of the United States," accessed September 18, 2020

Vacancies: announcement of retirement to confirmation of successor

When vacancy is defined as the length of time between the date at which a Justice announced his or her retirement and the confirmation date of their successor, the average length is 132 days. The longest vacancy is, again, between the terms of Scalia and Gorsuch at 419 days, followed by Fortas and Blackmun at 363 days. But the third longest, under this definition, is between the terms of Earl Warren and Warren Burger, at 361 days. Warren announced his retirement on June 13, 1968, almost a year before he officially left the bench on June 23, 1969.

In cases where a Justice died and no retirement announcement took place, we used their departure date. On several occasions, Justices officially retired on the same day as their announcement.

Supreme Court vacancy lengths, 1962 - 2020, retirement announcement to confirmation
Justice	Retirement announcement date/departure date	Successor	Confirmation date of successor	Length of vacancy (days)
Ruth Bader Ginsburg	9/18/2020	Amy Coney Barrett	10/26/2020	38
Anthony Kennedy	6/27/2018	Brett Kavanaugh	10/6/2018	101
Antonin Scalia	2/13/2016	Neil Gorsuch	4/7/2017	419
John Paul Stevens	4/9/2010	Elena Kagan	8/5/2010	119
David Souter	4/30/2009	Sonia Sotomayor	8/6/2009	99
Sandra Day O'Connor	7/1/2005	Samuel Alito	1/31/2006	215
William Rehnquist	9/3/2005	John Roberts	9/29/2005	26
Harry Blackmun	4/7/1994	Stephen Breyer	7/29/1994	114
Byron White	3/19/1993	Ruth Bader Ginsburg	8/3/1993	138
Thurgood Marshall	6/27/1991	Clarence Thomas	10/15/1991	111
William Brennan, Jr.	7/20/1990	David Souter	10/2/1990	75
Lewis Franklin Powell	6/26/1987	Anthony Kennedy	2/3/1988	223
Warren E. Burger	6/17/1986	Antonin Scalia*	9/17/1986	92
Potter Stewart	6/18/1981	Sandra Day O'Connor	9/21/1981	95
William O. Douglas	11/12/1975	John Paul Stevens	12/17/1975	35
John Marshall Harlan	9/23/1971	William Rehnquist	12/10/1971	78
Hugo Black	9/17/1971	Lewis Franklin Powell	12/6/1971	80
Earl Warren	6/13/1968	Warren E. Burger	6/9/1969	361
Abe Fortas	5/14/1969	Harry Blackmun	5/12/1970	363
Tom Clark	2/18/1967	Thurgood Marshall	8/30/1967	193
Arthur Goldberg*	7/25/1965	Abe Fortas	8/11/1965	17
Felix Frankfurter	8/28/1962	Arthur Goldberg	9/25/1962	28
Charles Evans Whittaker	3/29/1962	Byron White	4/11/1962	13
Note:* Technically, Burger was succeeded by Rehnquist as Chief Justice. Scalia was then appointed to succeed Rehnquist as an Associate Justice. We were unable to confirm Goldberg's announcement date. The date used is his departure date. Sources: Federal Judicial Center, "History of the Federal Judiciary," accessed September 18, 2020 SupremeCourt.gov, "Members of the Supreme Court of the United States," accessed September 18, 2020 To compile retirement announcement dates, we used a range of different sources. They can be accessed here

Vacancies prior to 1962

Prior to the 1960’s, there were two much longer vacancies on the Court. A seat sat vacant for almost two-and-a-half years during the presidencies of John Tyler and James K. Polk in the mid-19th century. Justice Henry Baldwin died in office on April 21, 1844. His eventual successor, Robert Grier, was confirmed by the Senate and sworn into office on the same day, August 10, 1846. In the interim, the Senate rejected four nominees. Another lengthy vacancy took place following the death of Justice Peter Daniel on May 31, 1860. Daniel’s seat was left unoccupied until President Abraham Lincoln’s (R) nominee, Samuel Miller, was confirmed and sworn in on July 21, 1862.^[74]

Footnotes

[retdate-1] 1.0 ^1.1 ^1.2 ^1.3 The Hill, "Justice Breyer set to retire from Supreme Court on Thursday," June 29, 2022

[waposwear-2] 2.0 ^2.1 The Washington Post, "Jackson to take Supreme Court oath Thurs., minutes after Breyer retires," June 29, 2022

[3] United States Supreme Court, "Letter to President," January 27, 2022

[retire-4] 4.0 ^4.1 ^4.2 YouTube, "President Biden Delivers Remarks on the Retirement of Supreme Court Justice Stephen Breyer," January 27, 2022

[announce-5] White House, "President Biden Nominates Judge Ketanji Brown Jackson to Serve as Associate Justice of the U.S. Supreme Court," February 25, 2022

[convote-6] 6.0 ^6.1 ^6.2 Congress.gov, "PN1783 — Ketanji Brown Jackson — Supreme Court of the United States," accessed April 7, 2022

[7] SCOTUSblog, "Stephen Breyer, pragmatic liberal, will retire at end of term," January 26, 2022

[8] Federal Judicial Center, "Jackson, Ketanji Brown," accessed March 1, 2022

[9] Senate Judiciary Committee, "Questionnaire," accessed March 1, 2022

[10] Since Jackson received a tied vote in committee, the full Senate voted on whether to advance her nomination to a confirmation vote.

[bloomberg-11] 11.0 ^11.1 Bloomberg, "Biden Signs Jackson’s Supreme Court Commission Early in Unusual Move," April 19, 2022

[connom-12] 12.0 ^12.1 Congress, "PN1783 — Ketanji Brown Jackson — Supreme Court of the United States," accessed March 1, 2022

[13] Axios, "Murkowski, Romney announce support for Ketanji Brown Jackson nomination," April 4, 2022

[14] New York Times, "Collins to Back Jackson for Supreme Court, Giving Her a G.O.P. Vote," March 30, 2022

[15] Senate Judiciary Committee, "Executive Business Meeting," March 28, 2022

[16] The Hill, "Senate panel to hold Supreme Court vote April 4," March 23, 2022

[17] Associated Press, "Supreme Court nominee Ketanji Brown Jackson heading to Capitol Hill," March 2, 2022

[18] Senate Judiciary Committee, "Durbin Meets With Supreme Court Nominee Judge Ketanji Brown Jackson," March 2, 2022

[19] CNN, "New Senate questionnaire details Judge Ketanji Brown Jackson's White House contacts during nomination process," March 1, 2022

[20] NBC News, "Senate begins work on confirming Jackson to Supreme Court as some in GOP voice openness," February 28, 2022

[21] White House, "President Biden Nominates Judge Ketanji Brown Jackson to Serve as Associate Justice of the U.S. Supreme Court," February 25, 2022

[apannounce-22] Associated Press, "AP sources: Biden taps Ketanji Brown Jackson for high court," Feb. 25, 2022

[23] CNN, "Biden has met with at least three potential Supreme Court nominees; announcement expected soon," February 22, 2022

[24] Twitter, "Senator Ben Ray Luján," February 13, 2022

[25] YouTube, "President Biden Delivers Remarks on the Retirement of Supreme Court Justice Stephen Breyer," January 27, 2022

[26] United States Supreme Court, "Letter to President," January 27, 2022

[27] NBC News, "Justice Stephen Breyer to retire from Supreme Court, paving way for Biden appointment," January 26, 2022

[28] Department of Justice, "Authority of the President to Prospectively Appoint a Supreme Court Justice," April 6, 2022

[29] White House, "Remarks by President Biden on his Nomination of Judge Ketanji Brown Jackson to Serve as Associate Justice of the U.S. Supreme Court," February 25, 2022

[quotedisclaimer-30] 30.00 ^30.01 ^30.02 ^30.03 ^30.04 ^30.05 ^30.06 ^30.07 ^30.08 ^30.09 ^30.10 ^30.11 ^30.12 ^30.13 ^30.14 ^30.15 ^30.16 ^30.17 ^30.18 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.

[31] Senate Democrats, "Majority Leader Schumer Statement On President Biden’s Nomination Of Judge Ketanji Brown Jackson To The United States Supreme Court," February 25, 2022

[32] Office of the Republican Leader, "McConnell Statement on Judge Ketanji Brown Jackson," February 25, 2022

[33] Office of Dick Durbin, "Durbin Statement On Supreme Court Nominee Judge Ketanji Brown Jackson," February 25, 2022

[34] Office of Chuck Grassley, "Grassley Statement On Supreme Court Nomination," February 25, 2022

[35] Supreme Court of the United States, "Letter to President," January 27, 2022

[36] The White House, "Remarks by President Biden on the Retirement of Supreme Court Justice Stephen Breyer," January 27, 2022

[37] Senate Democrats, "Schumer Statement On The Retirement Of Supreme Court Justice Stephen Breyer," January 26, 2022

[38] Senate Republican Leader, "McConnell on Justice Breyer’s Announced Retirement," January 27, 2022

[39] Speaker of the House, "Pelosi Statement on Retirement of Supreme Court Justice Stephen Breyer," January 27, 2022

[scotuspress-40] 40.0 ^40.1 ^40.2 ^40.3 ^40.4 ^40.5 ^40.6 ^40.7 Supreme Court of the United States, "Statements from the Supreme Court Regarding Justice Stephen G. Breyer's Retirement," January 27, 2022

[41] The Guardian, "Biden’s supreme court short list narrows to three names," February 12, 2022

[42] CNN, "Biden has met with at least three potential Supreme Court nominees; announcement expected soon," February 22, 2022

[43] The Washington Post, "White House confirms South Carolina judge is under consideration for Supreme Court," January 28, 2022

[vox-44] Vox, "Who is on Biden’s shortlist to replace retiring Justice Breyer?" January 26, 2022

[cnn-45] CNN, "Biden said he'd put a Black woman on the Supreme Court. Here's who he may pick to replace Breyer," January 26, 2022

[fox-46] Fox News, "Who could replace Supreme Court Justice Stephen Breyer?" January 26, 2022

[cbs-47] CBS News, "Biden weighing more than a dozen candidates for Supreme Court vacancy," January 31, 2022

[48] Twitter, "Fox News: Biden Potential Supreme Court Nominees," January 26, 2022

[49] The Associated Press via the Hartford Courant, "President Biden has long been preparing for a Supreme Court pick," January 26, 2022

[50] USA Today, "Biden considers Judge J. Michelle Childs and may cast wider net for Supreme Court vacancy," January 29, 2022

[51] NAACP LDF, "Sherrilyn Ifill," accessed February 1, 2022

[52] NYU, "Melissa Murray," accessed February 1, 2022

[nbc-53] NBC News, "A guide to the Supreme Court nomination," accessed February 13, 2016

[54] CQ Press, "The Selection and Confirmation of Justices: Criteria and Process," accessed February 13, 2016

[55] New York Times, "Presidents, Picking Justices, Can Have Backfires," July 5, 2005

[CRS1-56] 56.0 ^56.1 ^56.2 ^56.3 ^56.4 CRS Report for Congress, "Supreme Court Appointment Process: Roles of the President, Judiciary Committee, and Senate," July 6, 2005

[CRS2-57] 57.0 ^57.1 ^57.2 ^57.3 CRS Report, "Senate Consideration of Presidential Nominations: Committee and Floor Procedure," March 9, 2015

[58] [https://fas.org/sgp/crs/misc/R44819.pdf Congressional Research Service, "Senate Proceedings Establishing Majority Cloture for Supreme Court Nominations: In Brief," April 14, 2017]

[59] Federal Judicial Center, "Biographical directory of federal judges," accessed January 26, 2017

[60] United States Senate, "Supreme Court Nominations (1789-Present)," accessed February 1, 2022

[61] GovTrack, "Voting Records," accessed February 1, 2022

[62] Two Independent yes votes.

[63] Two Independent yes votes.

[64] One Independent yes vote.

[65] One Independent yes vote.

[66] One Independent yes vote and one Conservative yes vote.

[67] One Independent yes vote and one Conservative yes vote.

[68] One Independent yes vote and one Conservative yes vote.

[69] Twitter, "Stephen Vladeck on February 24, 2022," accessed March 9, 2022

[70] Ellen Morrissey, "Email correspondence with Stephen Vladeck," March 7, 2022

[71] New York Times, "He could never have enough," July 31, 1988

[72] Politico, "Republicans, Beware the Abe Fortas Precedent," February 15, 2016

[73] ScotusBlog.com, "Supreme Court vacancies in presidential election years," February 13, 2016

[74] C.Q. Press (2010). American Political Leaders: 1789 - 2009, Washington, DC: C.Q. Press

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Supreme Court vacancy, 2022

Confirmation overview

Timeline

Swearing-in

Confirmation vote

Statements and reactions to Ketanji Brown Jackson's nomination

President Joe Biden (D)

Senate Majority Leader Chuck Schumer (D-N.Y.)

Senate Minority Leader Mitch McConnell (R-Ky.)

Chairman of the Senate Judiciary Committee Dick Durbin (D-Ill.)

Ranking member of the Senate Judiciary Committee Chuck Grassley (R-Iowa)

Official statements regarding the retirement of Stephen Breyer

Stephen Breyer

Official resignation letter

Official announcement remarks

President Joe Biden (D)

Congressional leadership

Senate Majority Leader Chuck Schumer (D-N.Y.)

Senate Minority Leader Mitch McConnell (R-Ky.)

House Speaker Nancy Pelosi (D-Calif.)

Supreme Court justices

Justice John Roberts

Justice Clarence Thomas

Justice Samuel Alito

Justice Sonia Sotomayor

Justice Elena Kagan

Justice Neil Gorsuch

Justice Brett Kavanaugh

Justice Amy Coney Barrett

Potential nominees

Process to fill the seat

Supreme Court confirmation

Historic context

Confirmation votes

Prior judicial experience

Vacancies: departure date to swearing-in of successor

Vacancies: departure date to confirmation of successor

Vacancies: announcement of retirement to confirmation of successor

Vacancies prior to 1962

See also

Footnotes

Information about voting

2025 Elections

2026 Elections

2024 Election analysis

Trending

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Information for candidates

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Additional analysis

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