Noah Feldman, Columnist

Supreme Court Nominations Will Never Be the Same

Robert Bork marked a turning point in 1987. Merrick Garland did it again in 2016.

December 20, 2016 at 4:06 PM UTC

Corrected

December 20, 2016 at 9:48 PM UTC

Noah Feldman is a Bloomberg Opinion columnist. A professor of law at Harvard University, he is author, most recently, of “To Be a Jew Today: A New Guide to God, Israel, and the Jewish People."

Robert Bork marked a turning point in 1987. Merrick Garland did it again in 2016.
Photographer: Alex Wong/Getty Images

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The story of the Supreme Court in 2016 can be summarized in a statistic: It’s been 311 days since Justice Antonin Scalia died on Feb. 13, and his seat remains unfilled. That’s not the longest Supreme Court vacancy in the modern era, but it’s about to enter second place -- and it will become the longest if Donald Trump’s nominee isn’t confirmed before the end of March.1482245939596

This striking fact will be front and center when the history of the court in 2016 is written. But what really matters isn’t the length of the vacancy. It’s the election in the middle of it. The Republican Senate changed the rules of confirmation drastically by refusing even to consider Judge Merrick Garland’s nomination. And against the odds, it paid off for them.