Merrick Garland Supreme Court nomination

File:Antonin Scalia Official SCOTUS Portrait crop.jpg Antonin Scalia|left]]

On February 13, 2016, Associate Justice Antonin Scalia died unexpectedly while at the Cibolo Creek Ranch in Shafter, Texas.{{cite news |last=Liptak |first=Alan |title=Justice Antonin Scalia, Who Led a Conservative Renaissance on the Supreme Court, Is Dead at 79 |url=https://www.nytimes.com/2016/02/14/us/antonin-scalia-death.html |date=February 13, 2016 |work=The New York Times |access-date=February 18, 2016}}{{cite news|url=http://www.latimes.com/nation/la-na-scalia-ranch-20160214-story.html|title=Scalia's last moments on a Texas ranch – quail hunting to being found in 'perfect repose'|date=February 14, 2016|access-date=February 18, 2016|first=Molly|last=Hennessy-Fiske|work=Los Angeles Times}} He was the second of three Supreme Court justices to die in office during the 21st century: following Chief Justice William Rehnquist in 2005; and followed by Associate Justice Ruth Bader Ginsburg in 2020. Before Rehnquist, the last incumbent justice to die was Robert H. Jackson in 1954.{{cite news|last1=Gresko |first1=Jessica |title=Scalia's death in office a rarity for modern Supreme Court |url=http://bigstory.ap.org/article/09e55c6fbd6d41a28a03564f3202ef6b/scalias-death-office-rarity-modern-supreme-court |access-date=February 15, 2016 |agency=Associated Press |date=February 14, 2016 |url-status=dead |archive-url=https://web.archive.org/web/20160216080820/http://bigstory.ap.org/article/09e55c6fbd6d41a28a03564f3202ef6b/scalias-death-office-rarity-modern-supreme-court |archive-date=February 16, 2016 }}

Scalia had been appointed associate justice by President Ronald Reagan in September 1986 to fill the vacancy caused by the elevation of William Rehnquist to chief justice, and was unanimously confirmed by the Senate. He went on to become a part of the court's conservative bloc, often supporting originalist and textualist positions on the interpretation of the Constitution.{{citation |last=Toobin |first=Jeffrey |contribution=Lawyers, guns, and money |editor-last=Toobin |editor-first=Jeffrey |title=The oath: the Obama White House and the Supreme Court |pages=[https://archive.org/details/oathobamawhiteho00toob_0/page/111 111–112] |publisher=Doubleday |location=New York |year=2012 |isbn=978-0385527200 |postscript=. |title-link=The Oath: The Obama White House and The Supreme Court }} [http://www.randomhouse.com/highschool/catalog/display.pperl?isbn=9780385527200 Details.]

The vacancy on the Court created by Scalia's death came during a U.S. presidential election year, the seventh time since 1900 that this has happened.{{cite news|url=http://www.scotusblog.com/2016/02/supreme-court-vacancies-in-presidential-election-years/|title=Supreme Court vacancies in presidential election years|date=February 13, 2016|access-date=February 18, 2016|first=Amy|last=Howe|work=SCOTUSblog}} Article II, Section 2, Clause 2 of the United States Constitution grants plenary power to the president to nominate, and with the advice and consent of the Senate, appoint justices to the Supreme Court. At the time of Scalia's death, the incumbent president was Barack Obama, a member of the Democratic Party, while the Republican Party held a 54–46 seat majority in the Senate.{{cite news|last1=Lee|first1=Timothy B.|title=The coming fight to replace Justice Scalia, explained|url=https://www.vox.com/2016/2/13/10987362/justice-scalia-replacement-explained/in/10751011|access-date=February 16, 2016|publisher=Vox|date=February 13, 2016}} Because of the ideological composition of the Court at the time of Scalia's death, and the belief that President Obama could replace Scalia with a much more liberal successor, some concluded that an Obama appointee could potentially swing the Court in a liberal direction for many years to come, with potentially far-reaching political consequences.{{Cite news|title = Republicans and Democrats draw battle lines over supreme court nomination|url = https://www.theguardian.com/law/2016/feb/14/republicans-democrats-draw-battle-lines-supreme-court-nomination-obama|newspaper = The Guardian|date = February 14, 2016|access-date = February 15, 2016|issn = 0261-3077|language = en-GB|first = Edward|last = Helmore}}

Scalia's election-year death triggered a protracted political battle that did not end until 2017 after a new president had been inaugurated. The Senate's Republican leadership was quick to assert that the vacancy should not be filled until after the 2016 presidential election.{{Cite web|title=Results in key cases could change with Scalia's death |url=https://news.yahoo.com/results-key-cases-could-change-scalias-death-094801989--politics.html |website=Yahoo News |access-date=February 15, 2016 |url-status=bot: unknown |archive-url=https://web.archive.org/web/20160226052715/https://news.yahoo.com/results-key-cases-could-change-scalias-death-094801989--politics.html |archive-date=February 26, 2016 }} They cited a June 1992 speech by then-senator Joe Biden, in which Biden argued that President Bush should wait until after the election to appoint a replacement if a Supreme Court seat became vacant during the summer or should appoint a moderate acceptable to the then-Democratic Senate, as a precedent. Republicans later began to refer to this idea as the "Biden rule". Biden responded that his position was and remained that the president and Congress should "work together to overcome partisan differences" regarding judicial nominations.{{cite news |last=Davis |first=Julie Hirschfeld |date= February 22, 2016|title=Joe Biden Argued for Delaying Supreme Court Picks in 1992 |url=https://www.nytimes.com/2016/02/23/us/politics/joe-biden-argued-for-delaying-supreme-court-picks-in-1992.html |newspaper= The New York Times |access-date=November 22, 2016 }}

The "Biden rule" has never been a formal rule of the Senate.{{Citation|last1=Unah|first1=Isaac|title=The Legacy of President Obama in the U.S. Supreme Court|date=2019|work=Looking Back on President Barack Obama’s Legacy: Hope and Change|pages=149–189|editor-last=Rich|editor-first=Wilbur C.|publisher=Springer International Publishing|language=en|doi=10.1007/978-3-030-01545-9_8|isbn=978-3030015459|last2=Williams|first2=Ryan|s2cid=158180279}} PolitiFact noted that Biden's speech was later in the election year than when the GOP blocked Garland, there was no Supreme Court vacancy, there was no nominee under consideration, the Democratic-led Senate never adopted this as a rule, and that Biden did not object to Bush nominating judicial nominees after Election Day.{{cite web |last1=Emery Jr. |first1=C. Eugene |title=In Context: The 'Biden Rule' on Supreme Court nominations in an election year |url=https://www.politifact.com/article/2016/mar/17/context-biden-rule-supreme-court-nominations/ |website=POLITIFACT |publisher=Poynter Institute |access-date=20 January 2025 |date=17 March 2016}}

Democrats also countered that the U.S. Constitution obliged the president to nominate and obliged the Senate to give its advice and consent in a timely manner. Republicans argued in response that the Senate was fulfilling its obligation of advice and consent by saying that the next president should make the appointment. There were, however, 11 months left to President Obama's term at the time of Scalia's death, and the Democrats argued that no precedent existed for such a lengthy delay and that previous presidents had nominated individuals in election years.{{cite news|last1=Perry|first1=Barbara|title=One-third of all U.S. presidents appointed a Supreme Court justice in an election year|url=https://www.washingtonpost.com/news/monkey-cage/wp/2016/02/29/one-third-of-all-u-s-presidents-appointed-a-supreme-court-justice-in-an-election-year/|access-date=March 9, 2016|newspaper=Washington Post}} Democrats also argued that even if such a precedent existed, President Obama's term had sufficient time remaining that such a precedent would not apply. The precedent, known as the Thurmond rule, dated back to President Lyndon B. Johnson's 1968 nomination of Abe Fortas to become chief justice, but had since been inconsistently applied.{{cite web |first=Russell |last=Wheeler |url=http://www.brookings.edu/~/media/research/files/papers/2012/3/judicial-wheeler/03_judicial_wheeler.pdf |title=Judicial Confirmations: What Thurmond Rule? |work=Brookings Institution |date=March 19, 2012 }}{{cite news |first=Daniel |last=Victor |url=https://www.nytimes.com/live/supreme-court-justice-antonin-scalia-dies-at-79/what-is-the-thurmond-rule/ |title=What Is the 'Thurmond Rule'? |newspaper=The New York Times |date=February 13, 2016 }}

Republicans also cited the "Schumer standard", which was a comment made previously by Chuck Schumer, in support of their position.https://www.grassley.senate.gov/news/commentary/giving-people-voice-supreme-court-vacancyhttps://www.politico.com/tipsheets/huddle/2016/02/politico-huddle-schumer-central-to-scotus-battle-but-hes-also-fighting-with-wh-toomeys-quick-attack-dismissal-scotus-polls-not-helpful-212755https://www.politico.com/story/2016/05/merrick-garland-praised-democratic-forum-223326 In July 2007, as Senate majority leader, Schumer had stated that the Senate should not confirm a further Bush nominee to the Supreme Court, except in "extraordinary circumstances".https://www.politico.com/story/2007/07/schumer-to-fight-new-bush-high-court-picks-005146 In response, Schumer stated that his comment was intended only to aply to nominees "out of the mainstream" rather than being a complete refusal.https://www.politico.com/tipsheets/huddle/2016/02/politico-huddle-schumer-central-to-scotus-battle-but-hes-also-fighting-with-wh-toomeys-quick-attack-dismissal-scotus-polls-not-helpful-212755

On February 23, the 11 Republican members of the Senate Judiciary Committee signed a letter to Senate majority leader Mitch McConnell stating their unprecedented intention to withhold consent on any nominee made by President Obama, and that no hearings would occur until after January 20, 2017, when the next president took office.{{cite web|url=https://assets.documentcloud.org/documents/2719115/Senate-SCOTUS-Letter.pdf|title=Letter to Mitch McConnell|publisher=United States Senate Committee on the Judiciary|date=February 23, 2016|access-date=December 22, 2016}} This position subsequently became known as the "McConnell rule" though also not a formal rule of the Senate.{{cite web|url=https://thehill.com/opinion/judiciary/395696-the-mcconnell-rule-is-law-and-senate-democrats-should-sue-to-enforce-it|title=The 'McConnell Rule' is law, and Senate Democrats should sue to enforce it|author=Levy, Ken|website=The Hill|date=July 8, 2018}} That August, McConnell, who played an instrumental role in keeping Merrick Garland from filling Scalia's vacant seat, declared to a crowd in Kentucky, "One of my proudest moments was when I looked at Barack Obama in the eye and I said, 'Mr. President, you will not fill the Supreme Court vacancy.{{'}}"{{cite web|url=http://www.dailykos.com/story/2016/8/10/1558769/-Supreme-Court-vacancy-watch-Day-179-Where-s-Mitch-McConnell|title=Supreme Court vacancy watch Day 179: Where's Mitch McConnell on Trump's 'Second Amendment people'?|last=McCarter|first=Joan|website=Daily Kos|date=August 10, 2016|access-date=December 22, 2016}}{{cite web|url=http://crooksandliars.com/2016/08/mitch-mcconnell-mitch-mcconnell-proud|title=Mitch McConnell: Proud Moment When I Told Obama 'You Will Not Fill This Supreme Court Vacancy'|author=Scarce|website=Crooks and Liars|date=August 9, 2016|access-date=December 22, 2016}}{{cite web|url=http://www.rollcall.com/news/politics/34561-2|title=Tea Party-Aligned Kentucky Gov May End 95-Year Democratic Reign|last=Roarty|first=Alex|website=Roll Call|date=August 6, 2016|access-date=December 22, 2016}}

McConnell later called the question of whether the rule should become Senate policy "absurd", stating that "neither side, had the shoe been on the other foot, would have filled [the vacant seat]".{{Cite web|title=Meet the Press |date= April 2, 2017|url=https://www.nbcnews.com/meet-the-press/meet-press-april-2-2017-n741771|access-date=2020-09-19|website=NBC News|language=en}}

On February 24, 2016, a group of progressive-leaning U.S. constitutional-law scholars sent an open letter to President Obama and the U.S. Senate urging the president to nominate a candidate to fill the vacancy and the Senate to hold hearings and vote on the nominee.{{cite web |url=https://www.acslaw.org/news/press-releases/top-constitutional-law-scholars-say-no-exception-to-the-rule-in-filling-supreme |title=Top Constitutional Law Scholars Say No Exception to the Rule in Filling Supreme Court Vacancy in Election Year |date=February 24, 2016 |website=acslaw.org }} The letter, which was organized by the progressive American Constitution Society, stated that it would be "unprecedented" for the Senate to fail to consider a Supreme Court nominee, and "would leave a vacancy that would undermine the ability of the Supreme Court to carry out its constitutional duties." The signatories wrote that "the Senate's constitutional duty to 'advise and consent'—the process that has come to include hearings, committee votes, and floor votes—has no exception for election years. In fact, over the course of American history, there have been 24 instances in which presidents in the last year of a term have nominated individuals for the Supreme Court and the Senate confirmed 21 of these nominees."{{cite web |url=http://www.acslaw.org/sites/default/files/Con%20Law%20Scholars%20on%20Scotus%20Vacancy.pdf |title=Statement of Constitutional Law Scholars on the Supreme Court Vacancy |date=February 24, 2016 |website=acslaw.org }} Among the 33 professors signing the letter were Dean Erwin Chemerinsky of the University of California, Irvine School of Law; Adam Winkler of the UCLA School of Law; Kermit Roosevelt III of the University of Pennsylvania School of Law, and Gene Nichol of the University of North Carolina School of Law.

In a letter sent to President Obama on March 3, 2016, a different group of predominantly progressive scholars of American history, politics, and the law wrote to President Obama to "express our dismay at the unprecedented breach of norms by the Senate majority in refusing to consider a nomination for the Supreme Court made by a president with eleven months to serve in the position."{{cite web |first=Tanya |last=Somanader |url=https://obamawhitehouse.archives.gov/blog/2016/03/10/letter-experts-president-supreme-court-nominee |work=whitehouse.gov |title=Letter from the Experts: The President's Supreme Court Nominee Deserves a Chance |via=National Archives |date=March 10, 2016}} See also [https://obamawhitehouse.archives.gov/sites/default/files/docs/supreme_court_letter_to_the_president.pdf PDF version] of letter. The scholars wrote:

It is technically in the power of the Senate to engage in aggressive denial on presidential nominations. But we believe that the Framers' construction of the process of nominations and confirmation to federal courts, including the Senate's power of "advice and consent," does not anticipate or countenance an obdurate refusal by the body to acknowledge or consider a president's nominee, especially to the highest court in the land. The refusal to hold hearings and deliberate on a nominee at this level is truly unprecedented and, in our view, dangerous ...

The Constitution gives the Senate every right to deny confirmation to a presidential nomination. But denial should come after the Senate deliberates over the nomination, which in contemporary times includes hearings in the Judiciary Committee, and full debate and votes on the Senate floor. Anything less than that, in our view, is a serious and, indeed, unprecedented breach of the Senate's best practices and noblest traditions for much of our nation's history.

Signatories to this letter included, among others, Thomas E. Mann, senior fellow at the Brookings Institution; Norman J. Ornstein, resident scholar at the American Enterprise Institute; presidential historian Doris Kearns Goodwin; Pamela S. Karlan of Stanford Law School; Yale Law School professor Harold Hongju Koh; Geoffrey R. Stone of the University of Chicago Law School; and historian James M. McPherson of Princeton University.

On March 7, 2016, a group of 356 law professors and other legal scholars released a letter (organized through the progressive judicial advocacy group Alliance for Justice) to the Senate leadership of both parties urging them "to fulfill your constitutional duty to give President Obama's Supreme Court nominee a prompt and fair hearing and a timely vote." The letter writers argued that Senate Republicans' announcement that they would refuse to consider any Obama nominee was a "preemptive abdication of duty" that "is contrary to the process the framers envisioned in Article II, and threatens to diminish the integrity of our democratic institutions and the functioning of our constitutional government."[http://www.afj.org/press-room/press-releases/over-350-law-professors-urge-senators-to-fulfill-their-constitutional-duty Over 350 law professors urge senators to fulfill their constitutional duty], Alliance for Justice (March 7, 2016). See also [http://www.afj.org/press-room/press-releases/over-350-law-professors-urge-senators-to-fulfill-their-constitutional-duty full text of letter]. Among the signatories to this letter were prominent law professors Charles Ogletree, Kenji Yoshino, and Laurence Tribe.

On March 9, 2016, in a letter to Obama and Senate leadership, a group of almost 250 prominent corporate lawyers urged the Senate to hold hearings on the president's nominee.Martha Neil, [http://www.abajournal.com/news/article/nearly_250_corporate_lawyers_sign_letter_urging_obama_and_senate_leaders_to/ Fill Scalia vacancy, urge nearly 250 corporate lawyers in letter to Obama and Senate leaders], ABA Journal (March 9, 2016). See also [https://lawyerscommittee.org/wp-content/uploads/2016/03/SCOTUS-Vacancy-Sign-On-Letter_Final-1.pdf full text] of letter. The letter stated that "When a vacancy on the court arises, the Constitution is clear ... Article II, Section 2 states that the President 'shall nominate, and by and with the advice and consent of the Senate, shall appoint ... judges of the Supreme Court' ... Though the Senate may ultimately choose not to consent to the president's nominee, it would be unprecedented for the Senate to refuse to perform its 'advice and consent' role in this context. Not only does the Constitution direct the sitting president to nominate an individual to fill a vacancy on the court no matter whether it is an election year, nearly one third of all presidents have nominated a justice in an election year who was eventually confirmed." The letter, organized by the Lawyers' Committee for Civil Rights Under Law,Zoe Tillman, [http://www.nationallawjournal.com/id=1202751799426/Big-Law-Partners-General-Counsel-Urge-Senate-Action-on-SCOTUS-Pick Big Law Partners, General Counsel Urge Senate Action on SCOTUS Pick], National Law Journal (March 9, 2016). also expressed concern about the "profound effect" of an under-staffed Court on the national economy, particularly in close cases. Signatories to the letter came from a number of national law firms, as well as counsel for Google Inc.

On March 10, 2016, the Democratic attorneys general of 19 states, Puerto Rico, and the District of Columbia released a letter to Obama and Senate leadership in both parties calling for prompt Senate action on the president's (then yet-to-be-named) nominee.Karen Sloan & Zoe Tillman, [http://www.newyorklawjournal.com/id=1202751949063/Letters-Urge-Prompt-Review-on-Any-Obama-Nomination Letters Urge Prompt Review on Any Obama Nomination], New York Law Journal (March 11, 2016). See also [https://oag.ca.gov/system/files/attachments/press_releases/AGs%20letter%20to%20Senate%20FINAL.pdf full text] of letter. The letter stated that "the states and territories have a unique and pressing interest in a full and functioning Supreme Court" and that refusal to consider a nominee would "undermine the rule of law and ultimately impair the functioning of state governments."

In March 2016, former Utah governor Jon Huntsman Jr., a Republican, and former Connecticut U.S. senator Joseph Lieberman, an independent, both co-chairs of the problem-solving group No Labels, wrote that "there is no modern precedent for the blockade that Senate Republicans have put in place. Even highly-contentious nomination battles in the past, including those over Robert Bork and Justice Clarence Thomas, followed the normal process of hearings and an up-or-down vote. Leaving the current blockade in place could leave a seat on the Court vacant for the remainder of this term and perhaps the next as well, which could leave major cases in limbo until 2018. That is simply not acceptable. We cannot let today's crisis of leadership turn into a full-blown constitutional crisis."Jon Huntsman & Joseph Lieberman, [https://time.com/4271942/supreme-court-compromise/ The Republican SCOTUS Blockade Is 'Not Acceptable'], Time (March 25, 2016).

That same month, John Joseph Gibbons and Patricia Wald, the former chief judges of the Third Circuit and D.C. Circuit, respectively, warned that the Senate's refusal to act on a Supreme Court nomination "would set a dangerous precedent, and invite attempts to extend it to other situations where the Executive and the Legislative branches are in political conflict with one another." Gibbons was appointed by a Republican president, while Wald was appointed by a Democratic president.Zoe Tillman, [http://www.nationallawjournal.com/id=1202752107603/Former-Federal-Appeals-Chief-Judges-Urge-Senate-to-Act-on-Supreme-Court-Nominee Former Federal Appeals Chief Judges Urge Senate to Act on Supreme Court Nominee], National Law Journal (March 14, 2016).

Law professors Robin Bradley Kar and Jason Mazzone, in a May 2016 study published in the NYU Law Review Online, called the situation "unprecedented," noting that the Senate had never before transferred a president's appointment power in comparable circumstances to an unknown successor.{{cite web|first1=Robin |last1=Kar |first2=Jason |last2=Mazzone |title=The Garland Affair: What History and the Constitution Really Say About President Obama's Powers to Appoint a Replacement for Justice Scalia |url=https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2752287 |ssrn=2752287 |publisher=NYU Law. Rev. Online |date=June 1, 2016 |via=SSRN}}

George Mason University law professor Ilya Somin argued the Constitution imposes no such duty upon the Senate to hold confirmation hearings and to give a nominee an up-or-down vote.{{cite news | author = Ilya Somin | title = The Constitution does not require the Senate to give judicial nominees an up or down vote | date = February 17, 2016 | url = https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/02/17/the-constitution-does-not-require-the-senate-to-give-judicial-nominees-an-up-or-down-vote/ | newspaper = The Washington Post | access-date = March 21, 2016 | author-link = Ilya Somin }} Jonathan H. Adler agreed, writing that while he personally has "long argued that the Senate should promptly consider and vote on every presidential judicial nominee, ... there is no textual or historical basis" for the contention that the Senate has a constitutional obligation to do so.{{cite news | author = Jonathan H. Adler | title = The erroneous argument the Senate has a 'constitutional duty' to consider a Supreme Court nominee | date = March 15, 2016 | url = https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/03/15/the-erroneous-argument-the-senate-has-a-constitutional-duty-to-consider-a-supreme-court-nominee/ | newspaper = The Washington Post | access-date = March 21, 2016 | author-link = Jonathan H. Adler }} Eugene Volokh argues that there has not been a "constant practice of Senators agreeing that every nominee should be considered without regard to there being a looming election" and that "in the absence of such a practice, we come down to more results-oriented politics."{{cite news | author = Eugene Volokh | title = Dealing with Supreme Court vacancies: Do the other party's recent statements and actions matter? | date = February 22, 2016 | url = https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/02/22/dealing-with-supreme-court-vacancies-do-the-other-partys-recent-statements-and-actions-matter/ | newspaper = The Washington Post | access-date = March 21, 2016 | author-link = Eugene Volokh }} George Mason University law professor David Bernstein argued that while "preexisting constitutional norms" would suggest that "hearings and eventual votes on Supreme Court nominees" were mandatory, this norm is not required by the constitutional text and has been undermined by recent political practice.{{cite news | author = David Bernstein | title = Re: Merrick Garland, it's a bit late for the Obama administration and its supporters to appeal to constitutional norms requiring Senate consideration | date = March 16, 2016 | url = https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/03/16/re-merrick-garland-its-a-bit-late-for-the-obama-administration-and-its-supporters-to-appeal-to-constitutional-norms-requiring-senate-consideration/ | newspaper = The Washington Post | access-date = March 21, 2016 | author-link = David Bernstein (law professor) }}

Bernstein also noted that a Democratic-controlled Senate in 1960, in reaction to President Eisenhower's 1956 recess appointment of William J. Brennan Jr., passed a Senate resolution "Expressing the sense of the Senate that the president should not make recess appointments to the Supreme Court, except to prevent or end a breakdown in the administration of the Court's business."{{cite news | author = David Bernstein | title = Flashback: Senate Democrats in 1960 pass resolution against election-year Supreme Court recess appointments | date = February 13, 2016 | url = https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/02/13/flashback-senate-democrats-in-1960-pass-resolution-against-election-year-supreme-court-recess-appointments/ | newspaper = The Washington Post | access-date = March 21, 2016| author-link = David Bernstein (law professor) }} Noah Feldman, a constitutional law professor at Harvard Law School, has said "it's hard to argue that [the Constitution] requires the [Senate] to put a nominee to a vote."{{cite news | author = Noah Feldman | title = Obama and Republicans Are Both Wrong About Constitution | date = February 17, 2016 | url = http://www.bloombergview.com/articles/2016-02-17/obama-and-senate-are-both-wrong-about-the-constitution | work = BloombergView | access-date = March 28, 2016| author-link = Noah Feldman }} Vikram Amar, constitutional law professor and dean of the University of Illinois College of Law, wrote that "the text of the Constitution certainly does not use any language suggesting the Senate has a legal obligation to do anything", but that the "absolutist position" taken by Senate Republicans presents "grave risks" of escalating the judicial-appointment process into "extreme moves and countermoves."{{cite news | author = Vikram Amar | title = The Grave Risks of the Senate Republicans' Stated Refusal to Process any Supreme Court Nominee President Obama Sends Them | date = February 26, 2016 | url = https://verdict.justia.com/2016/02/26/the-grave-risks-of-the-senate-republicans-stated-refusal-to-process-any-supreme-court-nominee-president-obama-sends-them | work = Verdict | access-date = March 28, 2016| author-link = Vikram Amar }}

Prior to Obama's nomination of Merrick Garland, media commentators speculated about who might be nominated to fill the vacancy on the Court. A number of writers argued that the Senate Republicans would continue to block the confirmation process regardless of the nominee, and suggested that Obama may as well choose a candidate for political motives. For instance, Michael Tomasky suggested that a nomination of Mariano-Florentino Cuéllar may encourage Latinos to vote in the November 2016 election and "alter the presidential race dramatically as well."{{cite news |url=http://www.thedailybeast.com/articles/2016/02/15/the-gop-s-worst-nightmare-scotus-nominee.html |access-date=February 17, 2016 |date=February 17, 2016 |last=Tomasky |first=Michael |work=The Daily Beast |title=The GOP's Worst Nightmare SCOTUS Nominee}} Tom Goldstein, arguing that "[t]he nomination itself is part of the president's legacy, even if partisan politics prevents confirmation," recommended nominating a black woman to encourage black and female voters to participate in the election.{{cite news |url=http://www.scotusblog.com/2016/02/continued-thoughts-on-the-next-nominee-and-impressions-of-judge-ketanji-brown-jackson/ |access-date=February 17, 2016 |date=February 17, 2016 |last=Goldstein |first=Tom |work=SCOTUSblog |title=Continued thoughts on the next nominee (and impressions of Judge Ketanji Brown Jackson)}} Goldstein concluded that the most likely candidate of such description was Ketanji Brown Jackson.

Other commentators suggested that Obama should compromise by selecting a centrist or even moderate conservative candidate. After analyzing voting trends for Supreme Court nominees since the confirmation of Hugo Black in 1937, political scientists Charles Cameron and Jonathan Kastellec explained that "even an ideological twin of Justice Stephen Breyer—the most moderate of the court's current liberals—would fail to get even a majority of votes in the current Senate".{{cite news |url=https://www.washingtonpost.com/news/monkey-cage/wp/2016/02/17/how-an-obama-supreme-court-nominee-could-win-confirmation-in-the-senate/ |access-date=February 17, 2016 |date=February 17, 2016 |last1=Cameron |first1=Charles |last2=Kastellec |first2=Jonathan |newspaper=The Washington Post |title=How an Obama Supreme Court nominee could win confirmation in the Senate}} Without naming potential nominees, Cameron and Kastellec concluded that the Senate would only approve "a highly qualified moderate." In that vein, Senate Minority Leader Harry Reid suggested the nomination of Republican Governor Brian Sandoval.{{cite web | last1 = Liptak | first1 = Kevin | last2 = Raju | first2 = Manu | last3 = LoBianco | first3 = Tom | title = Obama offers Supreme Court hints; top Democrat suggests Republican governor | url = http://www.cnn.com/2016/02/24/politics/obama-supreme-court-nominee/ | publisher = CNN | date = February 24, 2016 | access-date = March 3, 2016}}{{cite news |last1 = Martin |first1 = Jonathan |last2 = Healy |first2 = Patrick | title = Supreme Court Path Is Littered With Pitfalls, for President and G.O.P. | url = https://www.nytimes.com/2016/02/17/us/politics/supreme-court-path-is-littered-with-pitfalls-for-president-and-gop.html | newspaper = The New York Times | date = February 16, 2016 | access-date = March 3, 2016}} However, Sandoval soon withdrew his name from consideration.{{cite web|url=http://www.hngn.com/articles/182542/20160225/brian-sandoval-nevada-governor-withdraws-name-supreme-court-consideration-breaking.htm|title=Brian Sandoval, Nevada Governor, Withdraws Name From Supreme Court Consideration |work=Headlines & Global News|date=February 25, 2016 }} Zachary A. Goldfarb and Jeffrey Toobin speculated that Obama might nominate Sri Srinivasan because he "has the sort of impeccable credentials that are much beloved by the Supreme Court bar" and that his reputation as a moderate liberal may appeal to conservatives in the Senate.{{cite news |url=https://www.washingtonpost.com/news/wonk/wp/2016/02/13/who-will-be-obamas-nominee-to-replace-scalia-on-the-supreme-court/ |access-date=February 17, 2016 |date=February 17, 2016 |last=Goldfarb |first=Zachary A. |newspaper=The Washington Post |title=Who will be Obama's nominee to replace Scalia on the Supreme Court?}}

By early March 2016, Obama reportedly scheduled interviews with five candidates—Merrick Garland, Ketanji Brown Jackson, Jane L. Kelly, Sri Srinivasan, and Paul J. Watford—before narrowing the list down to three candidates: Srinivasan, Garland, and Watford.{{cite news|last1=Edwards|first1=Julia|title=White House narrows search to three for Supreme Court|url=https://www.reuters.com/article/us-usa-court-obama-idUSKCN0WD2LE|access-date=March 12, 2016|publisher=Reuters|date=March 11, 2016}} Garland had been interviewed for a seat on the Court in 2010, when Justice Elena Kagan was selected to succeed the retiring John Paul Stevens.{{cite news| url=http://www.latimes.com/news/nationworld/nation/la-na-stevens-thumbs10-2010apr10,0,6242118.story| work=Los Angeles Times| title=Profiles of three possible successors to Justice John Paul Stevens| date=April 10, 2010 | access-date=May 12, 2010}}{{cite news| first=Jess| last= Bravin| author-link=Jess Bravin| title=Democrats Divide on Voice of Possible Top-Court Pick| url=https://www.wsj.com/articles/SB10001424052748703894304575047603606503576?mod=WSJ_newsreel_us| publisher=Wall Street Journal| date=February 8, 2010| access-date=March 16, 2019}}{{Cite news|first1=Michael D. |last1=Shear |first2=Gardiner | last2=Harris| url=https://www.nytimes.com/2016/03/17/us/politics/obama-supreme-court-nominee.html| title=Obama to Nominate Merrick Garland to Supreme Court| date=March 16, 2016|website=The New York Times| access-date=March 16, 2016}} Back in 2010, Republican senator Orrin G. Hatch publicly said that he had urged Obama to nominate Garland as "a consensus nominee" who would easily win Senate confirmation.{{Cite news|url=https://www.reuters.com/article/us-usa-court-hatch-idUSTRE6456QY20100506|title=Republican would back Garland for Supreme Court|date=May 6, 2010|work=Reuters|access-date=March 16, 2016}}{{cite news |last=Burr |first=Thomas |date=March 16, 2016 |title=White House notes Hatch called Supreme Court nominee a 'consensus' pick in 2010 |url=http://www.sltrib.com/home/3670228-155/white-house-notes-hatch-called-supreme |newspaper=Salt Lake Tribune |location=Salt Lake City |access-date=March 16, 2016}} On March 11, 2016, Hatch said that refusal to now consider any Obama nominee to the high court was "the chickens coming home to roost", and he cited historical episodes as well as old quotations from Democratic senators to explain why.{{cite magazine|title=Minutes|url=https://newrepublic.com/minutes/131676/orrin-hatch-said-no-question-merrick-garland-confirmed-supreme-court|author=Shepherd, Alex|date=March 16, 2016|magazine=The New Republic}}

File:Senator Franken meets with Judge Merrick Garland (25533943723) (cropped).jpg]]

File:2016 April 05 US Senator Susan Collins meets with Merrick Garland.jpg]]

File:Senator Boxer meets Judge Garland (26642598583).jpg]]

On March 16, 2016, President Obama nominated Merrick Garland, the chief judge of the United States Court of Appeals for the District of Columbia Circuit, to fill the vacant seat on the Court.{{cite news |last1= Shear |first1=Michael D. |last2=Harris |first2=Gardiner |date=March 16, 2016 |title=Obama Chooses Merrick Garland for Supreme Court |url=https://www.nytimes.com/2016/03/17/us/politics/obama-supreme-court-nominee.html?_r=0 |newspaper=New York Times |access-date=March 16, 2016}} In a formal Rose Garden ceremony, Obama, flanked by Garland and Vice President Joe Biden, declared: "I have selected a nominee who is widely recognized not only as one of America's sharpest legal minds, but someone who brings to his work a spirit of decency, modesty, integrity, even-handedness and excellence. Presidents do not stop working in the final year of their term; neither should a Senator." He went on to say: "To suggest that someone as qualified and respected as Merrick Garland does not even deserve a hearing, let alone an up-or-down vote, to join an institution as important as our Supreme Court, when two-thirds of Americans believe otherwise—that would be unprecedented." Garland then briefly spoke, stating that "fidelity to the Constitution and the law have been the cornerstone of my professional life" and promising to "continue on that course" if confirmed for the Supreme Court.

The White House simultaneously released a biographical video of Garland, featuring old photographs of Garland and his family, an interview with the judge, and archival footage of him at the scene of the Oklahoma City bombing, which Garland investigated.Julie Hirschfeld Davis, [https://www.nytimes.com/live/obama-supreme-court-nomination/white-house-releases/ White House Releases Video of Garland], The New York Times (March 16, 2016). In the video, Garland states: "When I am standing with the President and he announces my nomination, I actually think it is going to feel a little bit like it is an out-of-body experience."

The selection of the {{age|1952|11|13|2016|03|16}} year old Garland, the oldest Supreme Court nominee since Lewis F. Powell Jr. in 1971 at age {{age|1907|09|19|1971|10|21}},{{cite news |title=Merrick Garland Is The Oldest Supreme Court Nominee Since Nixon Was President |work=FiveThirtyEight |date=March 16, 2016 |url=https://fivethirtyeight.com/features/merrick-garland-age-supreme-court/ }} caught political analysts by surprise.

Immediately following the president's announcement of Garland, Senate Majority Leader, Mitch McConnell, announced a firm refusal to consider nominees to the Supreme Court until the next presidential inauguration. Citing what he called "the Thurmond Rule", McConnell argued that there should not be a nomination so close to the next presidential and congressional election, but rather that the nomination should await the outcome of that election (which was 8 months away, and 10 months to the next presidential and congressional inaugurations):

:"The next justice could fundamentally alter the direction of the Supreme Court and have a profound impact on our country, so of course the American people should have a say in the Court’s direction…The American people may well elect a President who decides to nominate Judge Garland for Senate consideration. The next President may also nominate someone very different. Either way, our view is this: Give the people a voice in the filling of this vacancy.’

...declaring:

:"The Senate will appropriately revisit the matter when it considers the qualifications of the nominee the next President nominates, whoever that might be."

Senator Orrin Hatch said: "I think well of Merrick Garland. I think he is a fine person. But his nomination does not in any way change current circumstances."{{cite news|title=Republican Senator Weighs In On Supreme Court Nomination|url=https://www.npr.org/2016/03/17/470776592/republican-senator-weighs-in-on-supreme-court-nomination|website=NPR.org|access-date=March 21, 2016}} Soon thereafter, Senator Jeff Flake said that Garland should not be confirmed unless Hillary Clinton wins the November presidential election. He argued that should Clinton win, Garland should be confirmed in the Senate's lame-duck session because he is less liberal than any nominee Clinton might put forward.{{cite web|url=http://www.politico.com/story/2016/03/kelly-ayotte-to-meet-merrick-garland-220868|title=GOP Supreme Court blockade showing early cracks|publisher=Politico|date=March 3, 2016|access-date=June 8, 2016}}{{cite web|url=https://www.reuters.com/article/us-usa-court-garland-idUSKCN0WJ251|title=Senators say they might confirm Obama's high court pick after election|publisher=Reuters|date=March 18, 2016|access-date=June 8, 2016}} After meeting with Garland in April, Flake reiterated this position.{{cite web|url=http://www.azcentral.com/story/news/politics/arizona/2016/04/14/jeff-flake-supreme-court-nominee-merrick-garland-senate-vote/83035418/|title=Flake meets with Supreme Court nominee, won't support a vote|publisher=AZ Central|date=April 14, 2016|access-date=June 8, 2016}}{{cite web|url=http://www.huffingtonpost.com/entry/jeff-flake-merrick-garland-supreme-court_us_5730c1a9e4b096e9f0920f6d|title=GOP Senator: If We Lose In November, We Should Confirm Merrick Garland|work=The Huffington Post|date=May 9, 2016|access-date=June 8, 2016}} Hatch echoed this sentiment, saying that he was "open to resolving this [Garland's nomination after a Clinton win] in a lame-duck [session in December]."{{cite web|url=http://www.huffingtonpost.com/entry/merrick-garland-lame-duck_us_56e9a842e4b0b25c91843849|title=Senate GOP Could Consider Obama's Supreme Court Nominee In Lame-Duck Period|work=The Huffington Post|date=March 16, 2016|access-date=June 8, 2016}}

By the beginning of April however, a total of 29 Republicans had announced that even after election, regardless of its outcome, they would not consider the Garland nomination.{{citation |title=Where Republican Senators Standon the Supreme Court Nomination |url=https://www.nytimes.com/interactive/2016/03/21/us/politics/where-republican-senators-stand-on-the-supreme-court-nomination.html |work=New York Times |date=March 29, 2016 |access-date=March 31, 2016}} In April, two Republican senators, Jerry Moran and Lisa Murkowski, after weeks earlier expressing support for proceeding with hearings as a part of the nomination process, had reversed their positions, saying that they now opposed hearings on Garland's nomination.{{cite news |title=2 Republican Senators Revoke Support for Garland Hearings |work=New York Times |date=April 2, 2016 |url=https://www.nytimes.com/2016/04/03/us/politics/2-republican-senators-revoke-support-for-garland-hearings.html }} Two other Republicans, Mark Kirk and Susan Collins, expressed their support for hearings and an up-or-down vote on Garland, with Collins also supporting Garland's nomination. Some Republicans, including Ted Cruz and John McCain, suggested that the Senate might not confirm any nominee to replace Scalia, particularly if Democrats retain control of the presidency.{{cite news|last1=Ingraham|first1=Christopher|title=Republican talk of holding a Supreme Court seat vacant for four years is without precedent|url=https://www.washingtonpost.com/news/wonk/wp/2016/11/01/republican-talk-of-holding-a-supreme-court-seat-vacant-for-four-years-is-without-precedent/|access-date=November 1, 2016|newspaper=Washington Post|date=November 1, 2016}}

Donald Trump, a candidate in the 2016 Republican Party presidential primaries at the time of Scalia's death, declared his opposition to the Garland nomination when it was announced, maintaining that picking a successor to Scalia should be done by the next president.{{cite news|last=Rappeport|first=Alan|title=Donald Trump Rejects Garland Nomination|url=https://www.nytimes.com/live/obama-supreme-court-nomination/donald-trump-rejects-garland-nomination/|access-date=October 14, 2016|newspaper=The New York Times|date=March 16, 2016}} Trump later released two lists of potential Supreme Court nominees which he would use to guide his Supreme Court nominations if elected president.{{cite news| last1=Rappeport| first1=Alan| last2=Savage| first2=Charlie| date=May 18, 2016| title=Donald Trump Releases List of Possible Supreme Court Picks| newspaper=The New York Times| url=https://www.nytimes.com/2016/05/19/us/politics/donald-trump-supreme-court-nominees.html| access-date=April 11, 2022}}{{cite news| first=Richard| last=Wolf| url=https://www.usatoday.com/story/news/politics/elections/2016/12/01/donald-trump-supreme-court-21-nominees-list-nomination/93964888/| title=Trump's 21 potential court nominees are overwhelmingly white, male and from red states| publisher=USA Today| date=December 1, 2016| access-date=April 11, 2022}}

In April 2016, a letter signed by sixty-eight of Garland's former law clerks urging his confirmation was delivered to Senate leaders. The Washington Post summarized the letter as painting "a familiar portrait of Garland as a careful judge, a hardworking public servant and a devoted family man." The former clerks wrote: "There are not many bosses who so uniformly inspire the loyalty that we all feel toward Chief Judge Garland. Our enthusiasm is both a testament to his character and a reflection of his commitment to mentoring and encouraging us long after we left his chambers."Mike DeBonis, [https://www.washingtonpost.com/news/powerpost/wp/2016/04/04/merrick-garlands-ex-clerks-to-senate-confirm-our-old-boss-to-the-supreme-court/ Merrick Garland's ex-clerks to Senate: Confirm our old boss to the Supreme Court], Washington Post (April 4, 2016).

On May 2, eight former Solicitors General of the United States endorsed Garland as "superbly qualified", including Republicans Paul Clement, Gregory G. Garre, Theodore Olson, and Ken Starr.{{cite news|last1=Bravin|first1=Jess|author-link=Jess Bravin|title=Former Government Lawyers on Supreme Court Nominee Garland: 'Superbly Qualified'|url=https://blogs.wsj.com/washwire/2016/05/05/former-government-lawyers-on-supreme-court-nominee-garland-supremely-qualified/|access-date=November 23, 2016|work=The Wall Street Journal|date=May 5, 2016}} On June 21, the American Bar Association's Standing Committee on the Federal Judiciary granted Garland its "well-qualified" rating. Commenting on his integrity, the ABA noted: "Most remarkably, in interviews with hundreds of individuals in the legal profession and community who knew Judge Garland, whether for a few years or decades, not one person uttered a negative word about him."{{cite news|last1=Cassens Weiss|first1=Debra|title=Merrick Garland gets ABA's 'well-qualified' rating; ABA president calls for Senate action|url=http://www.abajournal.com/news/article/merrick_garland_gets_a_well_qualified_rating_from_aba/|access-date=November 23, 2016|work=ABA Journal|date=June 21, 2016}}

In August 2016, Steve Michel, a New Mexico lawyer, filed a lawsuit in federal court seeking to compel Republican leaders in the Senate to take a vote on the nomination. On November 17, U.S. District Judge Rudolph Contreras dismissed the lawsuit, finding that the plaintiff, who had simply alleged he was a voter, had no standing to sue.{{cite news| last1=DeBonis| first1=Mike| title=Judge dashes Merrick Garland's final, faint hope for a Supreme Court seat| url=https://www.washingtonpost.com/news/powerpost/wp/2016/11/18/judge-dashes-merrick-garlands-final-faint-hope-for-a-supreme-court-seat/| access-date=November 23, 2016| newspaper=The Washington Post| date=November 18, 2016}}

Over 150,000 people signed a "We the People" petition posted in November 2016 on the White House website asking President Obama to independently appoint Garland to the Supreme Court, espousing the theory that the Senate had waived its advise and consent role. The petition received an official White House response, but the administration did not embrace the petitioners' point of view.

Under long-standing Senate rules, nominations still pending when the Senate adjourns at the end of a session are returned to the president (unless the Senate, by unanimous consent, waives the rule).{{cite report| title=Senate Consideration of Presidential Nominations: Committee and Floor Procedure| date=May 13, 2021| first=Elizabeth| last=Rybicki| url=https://crsreports.congress.gov/product/pdf/RL/RL31980/26| publisher=Congressional Research Service| location=Washington, D.C.| access-date=April 11, 2022}} Garland's nomination expired on January 3, 2017, at the end of the 114th Congress, after languishing 293 days.{{cite news | first = Jess | last = Bravin | author-link = Jess Bravin | url = https://www.wsj.com/articles/president-obamas-supreme-court-nomination-of-merrick-garland-expires-1483463952 | title = President Obama's Supreme Court Nomination of Merrick Garland Expires | newspaper = The Wall Street Journal | date = January 3, 2017 | access-date = March 16, 2019}}{{cite news| last=Ware| first=Doug G.| date=January 3, 2017| title=Nomination expires for Obama Supreme Court appointee Merrick Garland| url=https://www.upi.com/Top_News/US/2017/01/03/Nomination-expires-for-Obama-Supreme-Court-appointee-Merrick-Garland/4841483472115/| agency=UPI| access-date=April 11, 2022}} Garland's nomination was the 15th nomination to the Supreme Court to lapse at the end of a session of Congress.{{cite web |last1=McMillion |first1=Barry |title=Supreme Court Nominations, 1789 to 2020: Actions by the Senate, the Judiciary Committee, and the President |url=https://crsreports.congress.gov/product/pdf/RL/RL33225 |website=Congressional Research Service |publisher=Congressional Research Service |access-date=June 5, 2024}}

Barack Obama was succeeded by Donald Trump on January 20, 2017. Shortly afterward, President Trump nominated Neil Gorsuch to fill the Scalia vacancy.{{cite news| last=Taylor| first=Jessica| title=President Trump Nominates Neil Gorsuch To The Supreme Court| date=January 31, 2017| url=https://www.npr.org/2017/01/31/512708127/president-trump-to-announce-supreme-court-nominee-shortly| publisher=NPR| access-date=April 11, 2022}} Gorsuch was confirmed by the Senate on April 7, 2017.{{cite news| last=Caldwell| first=Leigh Ann| title=Neil Gorsuch Confirmed to Supreme Court After Senate Uses 'Nuclear Option'| date=April 7, 2017| url=https://www.nbcnews.com/politics/congress/neil-gorsuch-confirmed-supreme-court-after-senate-uses-nuclear-option-n743766| publisher=NBC News| access-date=April 11, 2022}}

Two years later, in May 2019, Senator McConnell was asked what he would do if a Supreme Court justice were to die in 2020, an election year. He stated that the Senate would fill such a vacancy.{{cite news| title=McConnell Says Republicans Would Fill a Supreme Court Vacancy in 2020, Drawing Claims of Hypocrisy| last=Victor| first=Daniel| url=https://www.nytimes.com/2019/05/29/us/politics/mitch-mcconnell-supreme-court.html| date=May 29, 2019 | newspaper=The New York Times| access-date=February 26, 2020}} McConnell repeated the statement in September 2020, following the death of associate justice Ruth Bader Ginsburg, citing a 2018 midterm elections mandate "to work with President Trump and support his agenda, particularly his outstanding appointments to the federal judiciary."{{Cite news|last=Hulse|first=Carl|date=September 18, 2020|title=For McConnell, Ginsburg's Death Prompts Stark Turnabout From 2016 Stance|newspaper=The New York Times|url=https://www.nytimes.com/2020/09/18/us/mitch-mcconnell-rbg-trump.html|access-date=September 19, 2020|issn=0362-4331}}

On September 26, 2020, Trump announced that he would nominate Amy Coney Barrett as Ginsburg's successor.{{cite news| last1=Vazquez| first1=Maegan| last2=Liptak| first2=Kevin| title=Trump nominates Amy Coney Barrett as Supreme Court justice| publisher=CNN| date=September 26, 2020| url=https://www.cnn.com/2020/09/26/politics/amy-coney-barrett-supreme-court-nominee/index.html| access-date=April 11, 2022}} Though many Democrats and some commentators contended that Republicans violated the precedent they had established for Garland, her appointment to the court was confirmed by Senate on October 26, eight days before the 2020 presidential election.{{cite news |last1=Fandos |first1=Nicholas |title=Senate Confirms Barrett, Delivering for Trump and Reshaping the Court |url=https://www.nytimes.com/2020/10/26/us/politics/senate-confirms-barrett.html| date=October 26, 2020| newspaper=The New York Times |access-date=April 11, 2022}}

On January 21, 2021, Trump's newly inaugurated successor Joe Biden announced Garland's nomination to the post of US Attorney General, and after approval by the US Senate by a vote of 70–30, Garland was sworn into office on March 11.

Scalia's death left the court with eight judges for a majority of its 2015 term and the beginning of its 2016 term, and the vacancy was the second-longest since 1900. With the vacancy persisting for some time, the Court showed a reluctance to accept new cases. The Court's slow pace in accepting new cases reflected "an increased cautiousness considering the real possibility of 4–4 deadlocks on anything ideologically divisive".Lawrence Hurley, [https://www.yahoo.com/news/divided-u-supreme-court-cautious-taking-cases-215451631.html "Divided U.S. Supreme Court cautious about taking new cases"], Reuters (April 4, 2016). From the time of Scalia's death in late February 2016 until the first week of April 2017, the Court accepted only three cases, none likely to be controversial. By contrast, over the previous five years the Court took up an average of eight cases over the same period.

For cases that were not decided before his death, Justice Scalia's votes were not counted, with the cases decided by the remaining eight members of the Court.{{cite news |last=Goldstein |first=Tom |date=February 13, 2016 |title=What happens to this Term's close cases? (Updated) |url=http://www.scotusblog.com/2016/02/what-happens-to-this-terms-close-cases/ |newspaper=SCOTUSblog |access-date=February 18, 2016 }} When the Court issues any ruling with votes split 4–4, the Court does not publish a written opinion with respect to the merits of the case and the ruling of the lower court is affirmed, although the Court's affirmance has no effect as precedent in future cases.{{cite news |last=Farias |first=Cristian |date=February 14, 2016 |title=Justice Scalia Left Undecided High-Stakes Cases That Could Change The Nation |url=http://www.huffingtonpost.com/entry/antonin-scalia-death-undecided-cases_us_56c072c5e4b08ffac1259d23 |newspaper=The Huffington Post |access-date=February 18, 2016 }}

Citing the Court's practices following the death of Justice Robert H. Jackson in 1954, Tom Goldstein of SCOTUSblog suggested in February 2016 that the Court was more likely to set evenly-divided cases for reargument after a new justice is appointed to the Court.{{cite news |last=Goldstein |first=Tom |date=February 14, 2016 |title=Tie votes will lead to reargument, not affirmance |url=http://www.scotusblog.com/2016/02/tie-votes-will-lead-to-reargument-not-affirmance/ |newspaper=SCOTUSblog |access-date=February 18, 2016 }} However, the Court split 4–4 in at least five cases of the 2015 term:

• Friedrichs v. California Teachers Association, an important case on the funding of public-sector labor unions;{{cite news | first = Jess | last = Bravin | author-link = Jess Bravin | url = https://www.wsj.com/articles/supreme-court-struggles-to-deal-with-4-4-split-1459296247 | title = Supreme Court Struggles to Deal With 4–4 Split | publisher = Wall Street Journal | date = 29 March 2016 | access-date = 16 March 2019}}Amy Davidson, [http://www.newyorker.com/news/amy-davidson/4-4-at-the-supreme-court 4–4 at the Supreme Court], New Yorker (April 1, 2016).
• Hawkins v. Community Bank of Raymore, a case on the application of gender discrimination laws to loan guarantors;Alicia Bannon, [https://www.usnews.com/opinion/articles/2016-03-30/supreme-court-4-4-rulings-absent-garland-leave-a-legal-muddle A Supreme Breakdown: The Supreme Court's 4–4 rulings are leaving a legal muddle that only the Senate can fix], U.S. News & World Report (March 30, 2016).Josh Gerstein, [http://www.politico.com/blogs/under-the-radar/2016/03/supreme-court-deadlock-bank-loans-221089 SCOTUS hits first post-Scalia deadlock in credit case], Politico (March 22, 2016).
• Franchise Tax Board of California v. Hyatt, in which the Court deadlocked on the question of whether Nevada v. Hall should be overruled;Josh Gerstein, [http://www.politico.com/blogs/under-the-radar/2016/04/supreme-court-splits-4-4-again-in-state-sovereignty-fight-222137 Supreme Court splits 4-4, again, in state sovereignty fight], Politico (April 19, 2016).
• Dollar General Corp. v. Mississippi Band of Choctaw Indians, a case involving the jurisdiction of tribal courts;Lawrence Hurley, [https://www.reuters.com/article/usa-court-tribe-idUSL1N19F0YT U.S. top court split 4–4 over in Native American tribal court dispute], Reuters (June 23, 2016).Ed Gehres, [http://www.scotusblog.com/2016/06/opinion-analysis-dollar-general-the-courts-longest-pending-case-of-the-2015-term-is-a-four-four-per-curiam-opinion/ Opinion analysis: Dollar General, the Court’s longest pending case of the 2015 Term is a four-four per curiam opinion], SCOTUSBlog (June 25, 2016).
• United States v. Texas, a highly watched case in which the Court split 4–4 on the constitutionality of the Deferred Action for Parents of Americans (DAPA) program.Adam Liptak & Michael D. Shear, [https://www.nytimes.com/2016/06/24/us/supreme-court-immigration-obama-dapa.html?_r=0 Supreme Court Tie Blocks Obama Immigration Plan], New York Times (June 23, 2016).

• Barack Obama Supreme Court candidates
• List of nominations to the Supreme Court of the United States
• Unsuccessful nominations to the Supreme Court of the United States

{{reflist}}

• [https://ballotpedia.org/U.S._Senators_on_the_nomination_of_Merrick_Garland "U.S. Senators on the nomination of Merrick Garland,"] in Ballotpedia
• [https://www.pbs.org/newshour/politics/what-every-republican-senator-has-said-about-filling-a-supreme-court-vacancy-in-an-election-year "What every Republican senator has said about filling a Supreme Court vacancy in an election year,"] by PBS News Hour

• {{cite journal |first1=Neal |last1=Devins |first2=Lawrence |last2=Baum |title=Split Definitive: How Party Polarization Turned the Supreme Court into a Partisan Court |journal=Supreme Court Review |volume=2016 |year=2016 |pages=301–365 |doi=10.1086/691096 |s2cid=225087145 |url=https://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=2977&context=facpubs |url-access=subscription }}
• {{cite magazine| first=Erick| last=Trickey| title=The History of 'Stolen' Supreme Court Seats| date=September 25, 2020| orig-date=March 20, 2017| magazine=Smithsonian| url=https://www.smithsonianmag.com/history/history-stolen-supreme-court-seats-180962589/}}

{{Nominations to the Supreme Court of the United States}}

{{Barack Obama}}

{{DEFAULTSORT:Garland, Merrick, Supreme Court Nomination}}

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