death of Justice Antonin Scalia as stolen, and Trump’s election as illegitimate, and they think these are reasons enough to vote against any Trump nominee to replace Scalia. As a result, the Gorsuch nomination will largely be a proxy fight over the legitimacy of the Senate’s rejection of the Garland nomination.

The Supreme Court confirmation process has been badly broken over the past three decades, and both parties have had a role in that. But the Garland nomination was a rare event in the modern Senate, because he was nominated in a presidential-election year by a president whose party did not control the Senate. Only once in U.S. history (in 1888) has the Senate acted before Election Day to confirm a justice who was nominated in the last yearof a presidential term by a president of the opposing party. Three others (in 1845, 1880, and 1957) were confirmed only after the election:


‐In February 1845, outgoing president John Tyler (elected as a Whig but by then a man without a party) had nominations pending for two open seats. The Democrats had won control of both the presidency and the Senate in the 1844 elections. The lame-duck Whig Senate confirmed one of Tyler’s two nominees (Samuel Nelson, a Democrat, Tyler’s sixth nomination for that seat in 13 months), and left the other seat open for the incoming president after rejecting three efforts by Tyler to fill it.

‐In December 1880, a vacancy opened after Election Day. Republicans had won the presidential election as well as enough Senate seats to