There's a lot of talk about how a lame-duck president should not/ cannot appoint a Justice. It seems Republicans are talking about 80 years of history and the Thurmond rule, and Democrats are talking about how 11 months without a ninth justice is unprecedented. Both sides obviously have a dog in the fight and their arguments have a point of view. And newspaper articles only provide a gloss of the historical arguments (I've read maybe 10 and still don't have a solid, non-superficial understanding of either side)

Can someone go into detail and be comprehensive on both sides with special attention to "Thurmond rule/policy" and Abe Fortas situation? And if possible other examples from before the 20th century? Thanks!

edit/ i know its a question that requires a very long answer, so if you only want to delve into one of the three(4?) that's great (ie. 1) thurmond rule/ repub POV, 2) democrat POV, 3) abe fortas, 4) pre-20th century

Was the Supreme Court always a highly contested body between the political parties? Or is this a more recent development?

The Constitution states only:

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.

There is no mention of the size of the court, which is set by law instead. Why did they decide on nine? And furthermore, aside from FDR's courtpacking scheme which was shot down, have there been serious attempts to change the size of the court?

The (failed) confirmation hearings around Robert Bork were notably contentious. They set up the extremely contentious hearings around Clarence Thomas, as well as other contentious hearings like Harriet Miers. Bork's nomination is often viewed as a turning point and the origin of our modern politically fraught hearings, but was it? After all, the Senate rejected Nixon's first two nominees (both Southerners in the civil rights era) and two more were withdraw after it was clear that the American Bar Association would formally call them "unqualified".

Before those, there was scandal laden Abe Fortas (already an associate justice) being rejected as Chief Justice by the senate after being nominated by LBJ, which was rather different. One of Hoover's nominees, John J. Parker was narrowly defeated by the senate (based on anti-labor stances and controversial comments he'd made about black voters while a politician). Before that, the last rejected nominee was in 1894. There's a full list here. So there was clearly a change between how nominees were treated in the first and second halves of the 20th century.

So now I have two questions:

• Why do we start counting the modern, very combative nomination process from Bork rather than Nixon's Southern nominees?

• What were Supreme Court nominations like in the 18th and 19th centuries? Wikipedia mentions that one of the reasons Grover Cleveland has such trouble nominating a justice in 1894 was that "the seat was traditionally held by someone from New York", and all of his New York candidates were blocked by a political rival in the Senate (he apparently got around this by nominating a sitting senator from Louisiana). First of all, what? There were seats associated with states? But also generally what was the process like? It seems like there were several big battles in this era. Were there "judicial litmus tests", like Roe v Wade is today?

What's the longest there has been an empty seat?

I'm slightly confused about the dredd Scott case. The majority argued that the SCOTUS had no jurisdiction to hear the suit brought by Scott because he was not considered a citizen, because not only those of African descent could not be citizens, and that states could not unilaterally make someone a citizen. But the dissent clearly points out that those of African descent in fact had the right to vote in several states at the beginning of the Union. So isn't the majority being factually dishonest?

My question is about what happens to a nominee if he/she does not get affirmed by the senate? Have any who were denied been later appointed and succeeded? Does a non-confirmation diminish their careers? Does the next one have more at stake than just personal embarrassment if the senate refuses to affirm?

edit/ -partially answered by yodatsracist, above, apparently 3 have been either postponed or withdrawn (none denied) and then later successfully resubmitted according to wikipedia, 1793-Patterson, 1835-Taney, 1881- Mathews here

but question stands on whether the career is diminished after non-confirmation

I've noticed that popular perceptions of Clarence Thomas are often quite negative, but I have no understanding of his past decisions or behavior to let me understand why this is. Is there any merit to the view that he has underperformed, during or prior to his time as a Justice?

(Moderators, please be merciful to me? I am aware that I'm close to the edge of the twenty year rule, but at the same time what I'm interested in here is his historical behavior and credentials. Maybe you can just delete answers which exceed the proper scope of this question? Or if you have a suggestion for how I might rephrase my comment, let me know and I will do that.)

I keep seeing comments in news about a lame duck president appointing a nominee being unheard of in the last eighty years. How many opportunities have been passed up in that time for that reason by a president? Or even in the full history of the court? Is it really a precedent if there just hasn't been an opportunity?

Have there ever been any former Presidents nominated to the Supreme Court? Has a President ever nominated himself or his VP?

Would a recess appointment to the court be unprecedented?

Additionally, would it be unprecedented for a recess appointee to serve for a year and then not be confirmed by the Senate?

Not sure if this question exactly fits into this narrative, but -

When I was in high school I vaguely remember learning that there was one Justice who didn't have his bust in marble at the court, while every other justice has their's. I'm not seeing any info about this though, just based off google/wiki searches I've been doing.

I want to say its Roger Taney? But again, I can't find anything about it, outside of some memory of a teacher saying it a decade ago.

So, is there any truth to this? Is there a Justice who's bust is not there, or am I completely off and thinking of something totally different? I know this isn't the world's most interesting questions but its just something I'd like to get a final answer on, while SCOTUS and its history is such a hot topic

Something that I've never really understood: Marbury v Madison famously established the precedent of judicial review, but I don't quite understand how. Can someone explain the story of the trial, why it was ruled unconstitutional, and how this evolved into judicial review?

Has there ever been a Senate Majority leader publicly say they would work to block any new nomination by the current sitting President before?

I'm referring to what Mitch McConnell (R-KY) says here. http://www.reuters.com/article/us-usa-scalia-mcconnell-idUSKCN0VM0YH

And more here from the Republican Party. http://www.reuters.com/article/us-usa-scalia-idUSKCN0VM0XE

FDR was able to nominate a total of 9 supreme court justices while in office. Was there a direct effect because of it?

Has any US President ever left office leaving a vacancy in the Supreme Court? The GOP is saying that the replacement should wait until the next President takes office. Is there any precedent for that? Has there ever been a case where there was a vacancy in the Supreme Court and the sitting President left office without filling it?

Is there any precedent for temporary/recess appointments to the court?

Grant had a supreme court vacancy go unfilled until after his successful reelection. Can someone tell me more about this? Why did he do this? Was this a political issue at the time?

Has a former president ever become a supreme court justice?

This is may be more of a constitutional history question, but what was the reasoning behind having only the Senate approve Supreme Court nominees? Why not both the house and Senate?

How many opportunities for a lame duck president to appoint a Supreme Court justice have their been in the last 80 years?

Has an appointment not been made because of a choice not to or because the need hasn't arisen?

What is the longest the court has had an empty seat since they settled on 9 members.

Can anyone provide a detailed explanation as to why it took so long for President John Tyler to replace Justice Smith Thompson. I know that this was the longest vacancy, but I'm having trouble finding credible sources as to what happened during that time to lead to such a prolonged absence.

Apologies if I've missed this somewhere down the thread, but is there a book anyone could recommend that delves into these topics for a non-specialised (i.e., know nothing about law) audience? I find the cultural shaping the Court has been involved in fascinating, but I wouldn't like to be mired in legal proceedings.

Coming late to this discussion, but I think an interesting question has not been addressed. President Obama has announced his intention to appoint someone to the vacant seat, and Senate Republicans, because control of the Court is in question, have announced their determination to prevent his filling the vacancy. Given the stakes it seems likely the Republicans will block any appointment by Obama. What then will happen to President Obama's candidate? Will the new President honor Obama's selection? A pretty clear precedent says "no."

In the summer of 1901, Horace Gray told the newly reelected President William McKinley of his intention to resign from the Supreme Court owing to ill health. (He did not resign until after that term concluded, however.) Gray's departure would leave the Court evenly divided on the great question of the day, bitterly fought over in the election of 1900: American rule over former Spanish colonies in the Pacific and Caribbean. McKinley promised to appoint a Boston lawyer to the seat, Alfred Hemenway, bowing to Senator George Hoar. Hemenway like Hoar was anti-imperialist. McKinley was assassinated, however, and his successor Theodore Roosevelt ignored McKinley's promise and appointed Oliver Wendell Holmes who, like Roosevelt, was an imperialist. Holmes did vote in favor of American imperial rule over its island possessions without extending Constitutional rights to their inhabitants. For these events see Honorable Justice: The Life of Oliver Wendell Holmes pp. 234-237.

In 1901-1902, the dispute over control of the Court was a conflict between Establishment and Progressive Republicans. McKinley's successor Theodore Roosevelt might be analogized to Bernie Sanders succeeding Obama. It will be interesting to see whether either of the Democratic candidates pledge to honor Obama's choice.

This post is rather long but the parallel with the Holmes appointment is particularly engaging, at least to me, since Scalia over his career was the anti-Holmes, regularly attacking Holmes's opinions and the common-law tradition that they carried forward.

Does the Chief Justice have any authority over the Associate Justices, or is the difference just in formalities such as reading the Oath of Office to the president and presiding over impeachment trials?

• How has the timing of the Presidential Inauguration and the inauguration of congress changed over history? More specifically, how has the time gap between them changed over history?
• Are there any cases of a judge being appointed by a different congress than the one they were nominated under?

(background: I ask these questions in the context of the gap between inaugurating congress and inaugurating the new president. Wondering if there is a precedent to sneak an appointment through after a change in party control of congress at the end of a presidential term.)

Marbury v. Madison effectively said the Supreme Court was able to decide if the government was acting legally. However this seems a little odd, as it was the Supreme Court effectively saying it mattered. So I guess I'm asking is why did the US government decide that the Supreme Court was able to simply say its opinion counted, and why did they continue to follow it? Seems somewhat of a conflict of interest.

Hopefully this hasn't already been asked. I read a post in another sub earlier which said that the Chief Justice plays a big role in which cases appear before the court. Is this true? And if so, in what way(s)? It was my impression that each appeal was evaluated by individual justices, who either deny the appeal or bring it before the other justices to discuss it, at which point at least four justices must vote to hear the case. Is that not (more or less) correct? And while we're at it, has the process always been the same?

Why aren't there any back ups for cases like these, a person who would be temporarily part of the court till a new justice is chosen. I mean an even number is pretty annoying.

Has there been an Associate Justice who's had the impact on the court that Scalia has? It seems that through history that we remember the Chief Justices but hardly remember any of the Associate Justices.

According to Wikipedia, "Historically, the average length of service on the Court has been less than 15 years; however, since 1970 the average length of service has increased to about 26 years." Why is this? What changed to make the service so much longer in recent history?

Have Supreme Court justices always voted along the lines of the party that nominated them in? I'm assuming Republicans nominating conservative justices and Democrats rather liberal ones have been the standard, but am interested to know if a Justice ever flipped sides so to speak.