This calculator updates in real time with the symbolic cost of inaction on the Supreme Court nomination by members of the Senate as measured by a prorated share of their salaries.
Update: On January 31, Donald Trump nominated Judge Neil Gorsuch to fill the Supreme Court vacancy left by Associate Justice Antonin Scalia since his death in February 2016. At the time, the Senate delay in confirming Obama nominee Merrick Garland had cost the American public more than $15 million, according to our calculator.
“I have fulfilled my constitutional duty,” President Obama said from the White House Rose Garden after he introduced Merrick Garland as his nominee for the Supreme Court. “Now it’s time for the Senate to do theirs.”
That was March 16. Both men are still waiting.
Obama named the 63-year-old federal appeals court judge to fill the seat vacated by the death of Justice Antonin Scalia. Senate Republicans have refused to give him so much as a hearing, much less a confirmation vote, arguing that the seat should be left open until a new president is elected.
Before this year, the slowest confirmation on record occurred in 1916, when the Senate deliberated for 125 days before approving Louis Brandeis to the court. Merrick Garland has easily surpassed that mark—before the Senate has taken any action on his nomination.
What is the cost of this delay? We decided to put a number on it.
This counter doesn’t reflect the actual cost, of course. For one thing, it does not include Senate staff time or Senate leadership staff time. More important, it would be difficult to estimate how many hours senators and Senate staffers spend vetting potential nominees.
Moreover, in a sense, there is no cost. Rather than holding hearings that drag on, consuming the time of senators and their staff, the Senate has simply chosen to ignore the nomination while continuing with the rest of its business. In doing so, however, the Senate has made it harder for the court to do its job, and tied the selection of a new justice, already a contentious partisan process, directly to the presidential election.
Here is what the number calculated by the counter does represent: the symbolic price of a stalled Senate.
Historically Supreme Court confirmations have averaged 60 days from nomination to confirmation. Given the unprecedented nature of this delay, we thought we’d quantify the cost of this obstructed nomination by totaling the salary received by our senators since the nomination was announced.
We calculated the daily rate based on the yearly salary that senators receive. Each senator makes $174,400 per year, except for three leaders who make $193,400: each party’s leader, and the Senate’s president pro tempore Orrin Hatch, who happens to sit on the Judiciary Committee. (Some senators opt to refuse some or all of their salary, or donate the money to charity, but because there is no central record of these cases, we haven’t taken them into account.) The grand total works out to an estimated $47,830 per day.
Typically a nomination wends it way from hearings in the Senate Judiciary Committee to debate by the full Senate on the Senate floor and eventually to a confirmation vote. Legal opinions differ on whether the Senate’s decision not to hold a hearing constitutes a waiver of the its right to provide ‘advice and consent’ to the President’s nomination as written in the Constitution.
In this Washington Post op-ed, Gregory L. Diskant holds that Obama can appoint Garland to the court. The Senate’s refusal to consider the president’s nomination in a timely way, he writes, could be interpreted as a waiver of its right to provide advice and consent. While Michael D. Ramsey argues in the Atlantic that the Senate is not compelled to act on Garland’s nomination. The Senate is not refusing to ‘consider’ Garland’s nomination, he writes. Far from it. Senators are aware of the nomination and have decided that formal action should wait until after the election.
The president does have the power to appoint a nominee to the Supreme Court if the Senate is in recess for three days or longer, according to Senate rules. However, the appointment would be temporary, ending with the next session of Congress. With only a few months remaining until then, such an action would be hardly more than symbolic. Even so, Senate Republicans may prevent it. During the March recess, some of them stayed behind in an apparent effort to block even a temporary appointment by President Obama. They could do so again.
As a matter of fact, Senate leaders have even reinterpreted the traditional definition of ‘recess’ in response to this vacancy on the Supreme court, with Republicans passing an adjournment resolution calling for ‘pro forma’ sessions (where no real work would be done) instead.
And that is just some of what makes this Supreme Court nomination unprecedented. In the meantime, we wait and see. And count the cost.
Interactive developed by: Christopher Persaud & Kit Cross
Daniel McLaughlin is a creative technologist exploring the 2016 presidential election. Before joining Fusion, Daniel worked at the Boston Globe and graduated from MIT with a BS in urban studies and planning.
Kate Stohr is a data journalist and community builder based in San Francisco, CA.
Rachel is the senior manager for interactives for Fusion. She is a University of Missouri graduate and originally from St. Louis.