Order Code RL33225
CRS Report for Congress
Received through the CRS Web
Supreme Court Nominations, 1789 - 2005: Actions
2006:
Actions by the Senate, the Judiciary Committee,
and the
President
January 5Updated September 15, 2006
Denis Steven Rutkus
Specialist in American National Government
Government and Finance Division
Maureen Bearden
Information Research Specialist
Government and Finance Division
Congressional Research Service ˜ The Library of Congress
Supreme Court Nominations, 1789 - 20052006: Actions by
the Senate, the Judiciary Committee, and the President
Summary
The process of appointing Supreme Court Justices has undergone changes over
two centuries, but its most basic feature —, the sharing of power between the
President President
and Senate —, has remained unchanged. To receive a lifetime appointment
to the Court,
a candidate must first be nominated by the President and then confirmed
by the
Senate. An importantA key role also has come to be played midway in the process
(after the President selects, but before the Senate considers) by the Senate Judiciary
by the Senate
Judiciary Committee.
Table 1 of this report lists and describes actions taken by the Senate, the Senate
Judiciary Committee, and the President on all Supreme Court nominations, from
1789 to the present. The table provides the name of each person nominated to the
Court and the name of the President making the nomination. It also tracks the dates
of formal actions taken, and time elapsing between these actions, by the Senate or
Senate Judiciary Committee on each nomination, starting with the date that the
Senate received the nomination from the President. For another perspective on
Supreme Court nominations, focusing, among other things, on when the Senate first
became aware of each President’s nominee selections (e.g.,via public announcements
of the President), see CRS Report RL33118, Speed of Presidential and Senate
Actions on Supreme Court Nominations, 1900-2005, by R. Sam Garrett, Denis
Steven Rutkus, and Curtis W. Copeland.
Thirty-nine of the 42 Presidents in the history of the United States have made
a total of 158 nominations to the Supreme Court, and the Senate has confirmed 121
of them (with one now pending before the Senate). Of the 36 unsuccessful
nominations, 11 were rejected in Senate roll-call votes, while nearly all of the rest,
in the face of committee or Senate opposition to the nominee or the President, were
withdrawn by the President, or were postponed, tabled, or never voted on by the
Senate. A total of 114 of the 158 nominations were referred to a Senate committee,
with 113
Thirty-nine of the 42 Presidents in the history of the United States have made
a total of 158 nominations to the Supreme Court, of which 122 (more than threequarters) received Senate confirmation. Also, on 12 occasions in the nation’s history,
Presidents have made temporary recess appointments to the Court, without
submitting nominations to the Senate. Of the 36 unsuccessful Supreme Court
nominations, 11 were rejected in Senate roll-call votes, 11 were withdrawn by the
President, and 14 lapsed at the end of a session of Congress.
A total of 115 of the 158 nominations were referred to a Senate committee, with
114 of them to the Judiciary Committee (including almost all nominations since
1868). Prior to 1916, the Judiciary Committee considered Supreme Court
these nominations behind
closed doors. Since 1946, however, almost all nominees have
received public
confirmation hearings. Most recent hearings have lasted four or
more days. Since 1967, a median of 37 days elapsed between the Senate’s receipt
of a Supreme Court nomination and a final committee vote. The Senate has
confirmed about three-quarters of the 157 nominations it has received since 1789 (not
including the pending 158th nomination), with 11 rejected in roll-call votes, 11
withdrawn by the President, and 14 lapsed at the end of a session of Congress.
This report will be updated at the conclusion of the current nomination and
confirmation process more days.
In recent decades, from the late 1960s to the present, the Judiciary Committee
has tended to take more time before starting hearings and casting final votes on
Supreme Court nominations than it did previously. The median time taken for the
full Senate to take final action on Supreme Court nominations also has increased in
recent decades, dwarfing the median time taken on earlier nominations.
For another perspective on Supreme Court nominations, focusing, among other
things, on when the Senate first became aware of each President’s nominee
selections (e.g., via public announcements of the President), see CRS Report
RL33118, Speed of Presidential and Senate Actions on Supreme Court Nominations,
1900-2006 by R. Sam Garrett, Denis Steven Rutkus, and Curtis W. Copeland. For
an examination of floor procedures used by the full Senate in considering Supreme
Court nominations, see CRS Report RL33247, Supreme Court Nominations: Senate
Floor Procedure and Practice, 1789-2005, by Richard S. Beth and Betsy Palmer.
This report will be updated upon the next occasion for a Court appointment.
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Description of Report’s Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Findings from the Nominations Table . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Number of Nominations and Nominees . . . . . . . . . . . . . . . . . . . . . . . . 3
Presidents Who Made the Nominations . . . . . . . . . . . . . . . . . . . . . . . . . 34
Date That Nominations Were Received in Senate . . . . . . . . . . . . . . . . . 45
Referral of Nominations to Senate Judiciary Committee . . . . . . . . . . . 5
Nominations That Received Public Confirmation Hearings . . . . . . . . . 6
Nominations Reported Out of Committee to Full Senate . . . . . . . . . . . 89
Nominations Not Reported Out of Committee . . . . . . . . . . . . . . . . . . 1011
Final Action by the Senate or the President . . . . . . . . . . . . . . . . . . . . . 11
Days from Date of Senate Receipt of Nomination to First Hearing . . 1213
Days from Senate Receipt to Final Committee Vote . . . . . . . . . . . . . . 1314
Days from Senate Receipt to Final Senate or Presidential Action . . . . 1516
Recess Appointments to the Supreme Court . . . . . . . . . . . . . . . . . . . . 1718
Concluding Observations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
List of Tables
Table 1. Nominations to the Supreme Court of the United States, 1789-20052006 . . 1920
Table 2. Senate Votes on Whether to Confirm Supreme Court
Nominations:
Number Made by Voice Vote/Unanimous
Consent (UC) or by
Roll-Call Vote . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42. . . . . . . . . . . . . . . . 44
Supreme Court Nominations, 1789 - 20052006:
Actions Taken by the Senate, the Judiciary
Committee, and the President
Introduction
The procedure for appointing a Justice to the Supreme Court of the United
States is provided for by the Constitution in only a few words. The “Appointments
Clause” (Article II, Section 2, clause 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.” The process of appointing Justices has undergone changes over two
centuries, but its most basic feature — the sharing of power between the President
and Senate — has remained unchanged. To receive a lifetime appointment to the
Court, a candidate must first be nominated by the President and then confirmed by
the Senate. An important role also has come to be played midway in the process
(after the President selects, but before the Senate considers) by the Senate Judiciary
Committee.
On rare occasions, Presidents also have made Supreme Court appointments
without the Senate’s consent, when the Senate was in recess. Such “recess
appointments,” however, were temporary, with their terms expiring at the end of the
Senate’s next session. The last recess appointments to the Court were made in the
1950s.
The appointment of a Supreme Court Justice might or might not proceed
smoothly. From the first appointments in 1789, the Senate has confirmed 121122 out of
157158 Court nominations, with a 158th now pending before the Senate.1. Of the 36
unsuccessful nominations, 11 were rejected in
Senate roll-call votes, while nearly all
of the rest, in the face of committee or Senate
opposition to the nominee or the
President, were withdrawn by the President, or were
postponed, tabled, or never
voted on by the Senate.
Description of Report’s Contents
This report lists and describes actions taken by the Senate, the Senate Judiciary
Committee, and the President on all Supreme Court nominations, from 1789 to the
present. The listing appears in a Supreme Court nominations table, Table 1, later
1
On Nov. 10, 2005, President George W. Bush nominated a U.S. appellate court judge,
Samuel A. Alito Jr., to be an Associate Justice of the Supreme Court. The Senate Judiciary
Committee has scheduled confirmation hearings on the nomination to begin on Jan. 9, 2006.
CRS-2
in this report. Preceding the table is summary text, which highlights certain
nominations statistics derived from the table. The text also provides historical
background information on the Supreme Court appointment process and uses
nominations statistics from the table to shed light on ways in which the appointment
process has evolved over time. Many of the statistical findings discussed, for
example, provide historical perspective on the emergence, and then increased
involvement, of the Senate Judiciary Committee in the appointment process.
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Specifically, the table lists, for each Supreme Court nomination, the following:
!
!
!
!
!
!
name of the person nominated (the nominee);
name of the President who made the nomination;
date the nomination was made by the President and received in the
Senate;1
date(s) of any committee hearings held on the nomination that were
open to the public;
type and date of final committee action; and
type and date of final action by the Senate or, in rarer instances, by
the President (when the final action taken on a nomination was its
withdrawal by the President).
Table 1 also shows the speed with which action was taken on each nomination,
specifically presenting the number of days that elapsed from the date the nomination
was formally received in the Senate until the following:
!
!
!
the first day of public confirmation hearings (if any);
the date of final committee action (if any); and
the date of final Senate action or presidential withdrawal of the
nomination.
The table also lists all recess appointments to the Supreme Court, as well as the later
nomination of each recess appointee.
Table 1, in sumit should be emphasized, tracks the dates of formal actions taken by the Senate or Senate
President, the Senate, and the Senate Judiciary Committee on each Supreme Court nomination, starting with the date that
the Senate received the nomination from the President. For another perspective on
Supreme Court nominations, focusing, among other things, on when the Senate
nomination. The table, for example, records the dates that nominations were actually
made and transmitted by the President to the Senate. The table, however, does not
track the dates on which Presidents announced the intention to nominate someone to
be a Justice or on which the Senate informally first became aware of each President’s
nominee selections (e.g., via
public announcements of the President), see CRS Report RL33118, Speed of
. A discussion focusing more closely on such informal steps in
the Supreme Court appointment process can be found in CRS Report RL33118,
Speed of Presidential and Senate Actions on Supreme Court Nominations, 1900-2005, by R.
Sam Garrett, Denis Steven Rutkus, and Curtis W. Copeland19002006.
Actions by the full Senate tracked systematically in Table 1 are those on which
the Senate took
final action (ordinarily in the form of confirmation, and less often in
the form of
rejecting, tabling, or postponing action on a nomination). For certain
Supreme Court
nominations, Table 1 also provides dates of procedural actions taken
on the Senate
floor, prior to or after final Senate action, in order to put the final action in fuller
context. The table, however, does not account for all Senate procedural actions on,
or for all dates of Senate floor consideration of, Supreme Court nominations. More
comprehensive information in these areas will be available in a forthcoming CRS
report.
CRS-
1
Usually the date on which the President formally makes a nomination, by signing a
nomination message, is the same as the date on which the nomination is received in the
Senate. In Table 1, these two dates are the same for any given nomination when only one
date is shown in the “Date received in Senate” column. However, for the occasional
nomination made by a President on a date prior to the nomination’s receipt by the Senate,
the earlier presidential nomination date is distinguished, in parentheses, from the date when
the nomination was received by the Senate.
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action in fuller context. The table, however, does not account for all Senate
procedural actions on, or for all dates of Senate floor consideration of, Supreme
Court nominations. For more comprehensive information on procedural actions
taken by the full Senate on past Supreme Court nominations, see CRS Report
RL33247, Supreme Court Nominations: Senate Floor Procedures and Practice,
1789-2006.
In listing all persons ever nominated to the Supreme Court, Table 1 includes the
names of those who were not confirmed as well as those who were confirmed but did
not assume their appointive office.2 A list solely of the 110 individuals who assumed
office and served on the Court (with judicial oath dates and service termination dates
for each Justice) is available on the Court’s website.3
Findings from the Nominations Table
Number of Nominations and Nominees. Table 1 lists all 158 Supreme
Court nominations since 1789, including the pending nomination of Samuel A. Alito
Jr. Each of the 158 nominations entailed a President
signing a nomination message,
which was then transmitted to, and received by, the
Senate. A lesser number of
separate individuals, 139, were actually nominated to the
Court, with some of them
nominated more than once.24
Of the 158 total nominations to the Court, 22 were to the position of Chief
Justice and the other 136 to a position as Associate Justice. The 22 Chief Justice
nominations involved 20 persons nominated once, and one person nominated twice.3
The 136 Associate Justice nominations involved 119 persons nominated once, seven
persons nominated twice, and one person nominated three times.
Presidents Who Made the Nominations. Thirty-nine of the 42 Presidents
in the history of the United States have made nominations to the Supreme Court.4
These 39 are listed in the second column of Table 1. All but one of the 39 Presidents
succeeded in having at least one Supreme Court nomination receive Senate
confirmation. The one exception was President Andrew Johnson, whose only Court
nomination, of Henry Stanbery in1866, was thwarted when the Senate enacted
25
2
Table 1 identifies eight Supreme Court nominees who subsequent to Senate confirmation
did not assume the office to which they had been appointed: Seven declined the office, and
one died before assuming it. It should be noted, however, that one of the seven who
declined the office, William Cushing — confirmed to be Chief Justice in 1796 — was at the
time serving on the Court as an Associate Justice, and continued to serve in that capacity
until 1810. Another of the seven, John Jay — confirmed to be Chief Justice in 1800 — had
served earlier on the Court, as the Court’s first Chief Justice, from 1789 to 1795.
3
The list, available at [http://www.supremecourtus.gov/about/members.pdf], presents first
the names of 17 persons who have served as Chief Justice, followed by the 98 persons who
have served as Associate Justices. The listing of 115 names in all (17 + 98) includes those
of five Chief Justices who earlier had served as Associate Justices, hence reducing to 110
the total number of persons who have served as members of the Court.
4
Specifically, eight persons were nominated twice to the same Court position (seven to be
Associate Justice, one to be Chief Justice); one person was nominated three times to be
Associate Justice; and nine persons were nominated first to be Associate Justice and later
to be Chief Justice. The sum of 19 (the number of Court nominations that were not a
person’s first nomination to the Court) and 139 (the number of persons nominated to the
Court at least once) is 158 (total Supreme Court nominations).
35
The nation’s first Chief Justice, John Jay, was nominated to that position twice. Jay was
first nominated, and confirmed, in September 1789. He resigned as Chief Justice in 1795
to serve as governor of New York. In December 1800, Jay was nominated and confirmed
a second time as Chief Justice, but declined the appointment. For analysis of the process
by which a Chief Justice is appointed, accompanied by a list of all Chief Justice nominations
from 1789 to the present (including the nomination, confirmation, judicial oath, and end-ofservice dates of Chief Justice nominees, as well as their ages at time of appointment and
upon termination of service), see CRS Report RL32821, The Chief Justice of the United
States: Responsibilities of the Office and Process for Appointment, by Denis Steven Rutkus
and Lorraine H. Tong.
4
The three Presidents not to have made any Supreme Court nominations were William
Henry Harrison, Zachary Taylor, and Jimmy Carter, with no Court vacancies having
occurred while they were in office. See “Table 3. Supreme Court Nominations, by
President, 1789 to October 2005,” in CRS Report RL31171, Supreme Court Nominations
Not Confirmed, 1789-2005, by Henry B. Hogue, which lists the number of vacancies on the
Court that existed during each presidency, from George Washington to George W. Bush.
While it is unremarkable that no vacancies occurred during the short-lived presidencies of
Harrison (Mar. 4 to Apr. 4, 1841) and Taylor (Mar. 5, 1849 to July 9, 1850), Jimmy Carter’s
presidency (Jan. 20, 1977, to Jan. 20, 1981) is remarkable as the only one lasting a full term
during which no Supreme Court vacancies occurred.
CRS-4(continued...)
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The 136 Associate Justice nominations involved 119 persons nominated once, seven
persons nominated twice, and one person nominated three times.
Presidents Who Made the Nominations. Thirty-nine of the 42 Presidents
in the history of the United States have made nominations to the Supreme Court.6
These 39 are listed in the second column of Table 1. All but one of the 39 Presidents
succeeded in having at least one Supreme Court nomination receive Senate
confirmation. The one exception was President Andrew Johnson, whose only Court
nomination, of Henry Stanbery in1866, was thwarted when the Senate enacted
legislation eliminating the Associate Justice position to which Stanbery had been
nominated.57
As Table 1 shows, the number of nominations made to the Supreme Court has
varied greatly from President to President. For any given President, the number of
nominations will be affected by various factors, including the length of time the
President was in office, the number of vacancies occurring on the Court during that
presidency, and whether more than one nomination was required to fill a Court
vacancy due to a previous nomination’s failure to be confirmed. Examination of the
nominations to the Court for each President reveals that half of the 42 Presidents
made four or more nominations, and half made three or fewer. Half of the 42
Presidents saw three or more of their Court nominations confirmed, and half saw two
or fewer confirmed.
The President with the most Supreme Court nominations and confirmations was
George Washington with 14 nominations, 12 of which were confirmed. The two
Presidents with the second-largest number of Court nominations were John Tyler and
Franklin D. Roosevelt, with nine each. Only one of Tyler’s nine nominations,
however, received Senate confirmation, while all nine of FDR’s were confirmed. The
President with the largest number of Supreme Court confirmations in one term (apart
from the first eight of George Washington’s nominations — all in his first term, and
all confirmed) was William Howard Taft, who, during his four years in office, made
six Court nominations, all of which were confirmed. Six Presidents made only one
Supreme Court nomination each, with the nominations of five of these Presidents
receiving confirmation.6 And, as noted above, three of the nation’s 42 Presidents
were unable to make a single nomination to the Court, because no vacancies occurred
on the Court during their presidencies.
Date That Nominations Were Received in Senate. The Supreme Court
appointment process officially begins when the President signs a message to the
Senate nominating someone for appointment to the Court. Usually on the date of the
signing, the message is delivered to the Senate and recorded in the Senate Executive
Journal as having been received that day.7 However, in 30 instances (all but two
5
See Myron Jacobstein and Roy M. Mersky, The Rejected (Milpitas, CA: Toucan Valley
Publications, 1993), pp. 69-74. (Hereafter cited as Jacobstein and Mersky, The Rejected.)
6
The five Presidents whose single Supreme Court nominations received Senate confirmation
were Franklin Pierce, James A. Garfield, William McKinley, Calvin Coolidge, and Gerald
R. Ford. As mentioned above, the one President whose single Court nomination did not
receive confirmation was Andrew Johnson.
7
A President may announce the selection of a nominee well before transmitting a
nomination message to the Senate. For instance, President George W. Bush announced his
selection of Samuel A. Alito Jr. to be a Supreme Court nominee on Oct. 31, 2005, but
formally signed and transmitted the nomination of Alito to the Senate on Nov. 10, 2005. For
a complete list, from 1900 to 2005, of the dates on which Presidents announced their
Supreme Court nominees (as distinguished from when they signed and transmitted
nomination documents to the Senate), see CRS Report RL33118, Speed of Presidential and
Senate Actions on Supreme Court Nominations, 1900-2005, by R. Sam Garrett, Denis
(continued...)
CRS-55
(...continued)
from 1789 to the present (including the nomination, confirmation, judicial oath, and end-ofservice dates of Chief Justice nominees, as well as their ages at time of appointment and
upon termination of service), see CRS Report RL32821, The Chief Justice of the United
States: Responsibilities of the Office and Process for Appointment, by Denis Steven Rutkus
and Lorraine H. Tong.
6
The three Presidents not to have made any Supreme Court nominations were William
Henry Harrison, Zachary Taylor, and Jimmy Carter, with no Court vacancies having
occurred while they were in office. See “Table 3. Supreme Court Nominations, by
President, 1789 to October 2005,” in CRS Report RL31171, Supreme Court Nominations
Not Confirmed, 1789-2006, by Henry B. Hogue, which lists the number of vacancies on the
Court that existed during each presidency, from George Washington to George W. Bush.
While it is unremarkable that no vacancies occurred during the short-lived presidencies of
Harrison (Mar. 4 to Apr. 4, 1841) and Taylor (Mar. 5, 1849 to July 9, 1850), Jimmy Carter’s
presidency (Jan. 20, 1977 to Jan. 20, 1981) is remarkable as the only one lasting a full term
during which no Supreme Court vacancies occurred.
7
See Myron Jacobstein and Roy M. Mersky, The Rejected (Milpitas, CA: Toucan Valley
Publications, 1993), pp. 69-74. (Hereafter cited as Jacobstein and Mersky, The Rejected.)
CRS-5
six Court nominations, all of which were confirmed. Six Presidents made only one
Supreme Court nomination each, with the nominations of five of these Presidents
receiving confirmation.8 And, as noted above, three of the nation’s 42 Presidents
were unable to make a single nomination to the Court, because no vacancies occurred
on the Court during their presidencies.
Date That Nominations Were Received in Senate. The Supreme Court
appointment process officially begins when the President signs a message to the
Senate nominating someone for appointment to the Court. Usually on the date of the
signing, the message is delivered to the Senate and recorded in the Senate Executive
Journal as having been received that day.9 However, in 30 instances (all but two
prior to the 20th century), Supreme Court messages were recorded in the Senate
Executive Journal as received in the Senate on a day after they were signed by the
President — usually the next day. In Table 1, in the “Date received in Senate”
column, a second date is provided in parentheses (as the “Nom. date”), whenever a
President made a nomination on a day prior to its receipt by the Senate.
Referral of Nominations to Senate Judiciary Committee. Although
referral of Supreme Court nominations to the Senate Judiciary Committee is now
standard practice, such referrals were not always the case. Table 1 shows that 114115
of 158 Supreme Court nominations have been referred to a Senate committee, 113114
of them to the Judiciary Committee.
The first standing legislative committees of the Senate, including the Judiciary
Committee, were created in 1816. Only once previously was a Supreme Court
nomination referred to committee, when, in 1811, the Senate referred the nomination
of Alexander Wolcott to a select committee of three Members. For roughly half a
century afer the Judiciary Committee’s creation, nominations, rather than being
automatically referred to the committee, were referred by motion only. From 1816
to 1868, more than two-thirds of the nominations (26 out of 38 nominations), were
referred to the committee. During this period, the confirmation success rate was
roughly the same for nominations referred, 15 of 26, as it was for those not referred,
seven out of 12.
8
The five Presidents whose single Supreme Court nominations received Senate confirmation
were Franklin Pierce, James A. Garfield, William McKinley, Calvin Coolidge, and Gerald
R. Ford. As mentioned above, the one President whose single Court nomination did not
receive confirmation was Andrew Johnson.
9
A President may announce the selection of a nominee well before transmitting a
nomination message to the Senate. For instance, President George W. Bush announced his
selection of Samuel A. Alito Jr. to be a Supreme Court nominee on Oct. 31, 2005, but
formally signed and transmitted the nomination of Alito to the Senate on Nov. 10, 2005. For
a complete list, from 1900 to 2006, of the dates on which Presidents announced their
Supreme Court nominees (as distinguished from when they signed and transmitted
nomination documents to the Senate), see CRS Report RL33118, Speed of Presidential and
Senate Actions on Supreme Court Nominations, 1900-2006, by R. Sam Garrett, Denis
Steven Rutkus, and Curtis W. Copeland.
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In 1868, Senate rules were changed to provide that all nominations be referred
to appropriate standing committees, unless otherwise ordered by the Senate.810
Subsequently, from 1868 to the present day, 87 of 94 Supreme Court nominations
have been referred to the Judiciary Committee. The seven not referred to committee
were persons who, at the time of their nomination, were a former President, a
Senator, a former Senator, an Attorney General and former U.S. Representative, or
a former Secretary of War,911 and all were easily confirmed. The last Supreme Court
nomination not referred to the Judiciary Committee was that of Senator James F.
7
(...continued)
Steven Rutkus, and Curtis W. Copeland.
8Byrnes in 1941. The Senate by unanimous consent considered and confirmed the
Byrnes nomination, without referral to committee, on the day it received the
nomination from the President.
Nominations That Received Public Confirmation Hearings. Table
1, in the “Public hearing date(s)” column, lists dates on which the full Judiciary
Committee, or a Judiciary subcommittee, held public confirmation hearings on
Supreme Court nominations. Included in this listing are public sessions of the
committee at which either Supreme Court nominees testified on their own behalf
and/or outside witnesses testified for or against the nominees.
Advent of Public Hearings. Before 1916, the Judiciary Committee
considered Supreme Court nominations behind closed doors. Thus, until that year,
there are no entries in the “Public hearing date(s)” column. Rather, committee
sessions on Court nominations typically were limited to committee members
discussing and voting on a nominee in executive session, without hearing testimony
from outside witnesses.12 In 1916, for the first time, the committee held open
10
See U.S. Congress, Senate Committee on the Judiciary, History of the Committee on the
Judiciary, United States Senate, 1816-1981. Sen. Doc. No. 97-18, 97th Cong., 1st sess.
(Washington: GPO, 1982), p. iv; also, U.S. Senate, History of the Committee on Rules and
Administration — United States Senate, prepared by Floyd M. Riddick, Parliamentarian
Emeritus of the Senate, 96th Cong., 1st sess., S. Doc. No. 96-27 (Washington: GPO, 1980).
Riddick provides, on pp. 21-28, the full text of the general revision of the Senate rules,
adopted in 1868, including, on p. 26, the following rule: “When nominations shall be made
by the President of the United States to the Senate, they shall, unless otherwise ordered by
the Senate, be referred to appropriate committees .... ”
9“
11
The nominations from 1868 to the present not referred to the Judiciary Committee were
those of: Edwin M. Stanton in 1869 (at time of nomination, former Secretary of War);
Edward D. White in 1894 (Senator); Joseph M. McKenna in 1897 (Attorney General, and
former U.S. Representative); Edward D. White again, in 1910, this time to be Chief Justice
(Associate Justice at time of nomination, and former Senator); William Howard Taft in 1921
(former President); George Sutherland in 1922 (former Senator); and James F. Byrnes in
1941 (Senator).
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Byrnes in 1941. The Senate by unanimous consent considered and confirmed the
Byrnes nomination, without referral to committee, on the day it received the
nomination from the President.
Nominations That Received Public Confirmation Hearings. Table
1, in the “Public hearing date(s)” column, lists dates on which the full Judiciary
Committee, or a Judiciary subcommittee, held public confirmation hearings on
Supreme Court nominations. Included in this listing are public sessions of the
committee at which either Supreme Court nominees testified on their own behalf
and/or outside witnesses testified for or against the nominees.
Advent of Public Hearings. Before 1916, the Judiciary Committee
considered Supreme Court nominations behind closed doors. Thus, until that year,
there are no entries in the “Public hearing date(s)” column. Rather, committee
sessions on Court nominations typically were limited to committee members
discussing and voting on a nominee in executive session, without hearing testimony
from outside witnesses.10 In 1916, for the first time, the committee held open
12
At least once in the 19th century, however, in 1873, the Judiciary Committee did hear
witnesses testify concerning a Supreme Court nomination — that of George H. Williams to
be Chief Justice — but these two days of hearings, on Dec. 16 and 17, 1873, were held in
closed session. The closed-door sessions were held to examine documents and hear
testimony from witnesses relevant to a controversy that arose over the Williams nomination
only after the committee had reported the nomination to the Senate. The controversy
prompted the Senate to recommit the nomination to the Judiciary Committee and to
(continued...)
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confirmation hearings on a Supreme Court nomination — that of Louis D. Brandeis
to be an Associate Justice — at which outside witnesses (but not the nominee)
testified. More days of public hearings (19) were held on the Brandeis nomination
than on any Supreme Court nomination since. The Brandeis hearings, however, did
not set immediately into place a new policy of open confirmation hearings for
Supreme Court nominations, since each of the next six nominations (during the years
1916 to1923) was either considered directly by the Senate, without referral to the
Judiciary Committee, or was acted on by the committee without the holding of
confirmation hearings.
From 1925 to 19451946, public confirmation hearings for Supreme Court
nominations became the more common, if not invariable, practice of the Judiciary
Committee. In 1925, Harlan F. Stone became the first Supreme Court nominee to
appear in person and testify at his confirmation hearings.11 During the next two
10
At least once in the 19th century, however, in 1873, the Judiciary Committee did hear
witnesses testify concerning a Supreme Court nomination — that of George H. Williams
to be Chief Justice — but these two days of hearings, on Dec. 16 and 17, 1873, were held
in closed session. The closed-door sessions were held to examine documents and hear
testimony from witnesses relevant to a controversy that arose over the Williams nomination
only after the committee had reported the nomination to the Senate. The controversy
prompted the Senate to recommit the nomination to the Judiciary Committee and to13 During the next two
decades, the Stone nomination was one of 11 Court nominations that received public
confirmation hearings before either the full Judiciary Committee or a Judiciary
subcommittee,14 while five other nominations did not receive public hearings. One
of the five nominees not receiving a public confirmation hearing was Senator James
F. Byrnes, whose nomination in 1941, as noted earlier, was considered directly by the
Senate without referral to the Judiciary Committee.15
12
(...continued)
authorize the committee “to send for persons and papers.” U.S. Congress, Senate, Journal
of the Executive Proceedings of the Senate of the United States of America, vol. 19
(Washington: GPO, 1901), p. 189. After holding the two closed-door sessions on Dec. 16
and 17, the committee did not re-report the nomination to the Senate. Amid press reports
of significant opposition to the nomination both in the Judiciary Committee and the Senate
as a whole, the nomination, at Williams’s request, was withdrawn by President Ulysses S.
Grant on Jan. 8, 1874. See Jacobstein and Mersky, The Rejected, pp. 82-87.
11
13
For a discussion of the advent of Supreme Court nominee appearances before the Senate
Judiciary Committee, starting with Harlan F. Stone in 1925 (and carrying through the
nominations of Abe Fortas and Homer Thornberry in 1968), see, James A. Thorpe, “The
Appearance of Supreme Court Nominees Before the Senate Judiciary Committee,” Journal
of Public Law, vol. 18, 1969, pp. 371-402.
14
A scholar examining the procedures followed by the committee in its consideration of 15
Supreme Court nominations referred to it between 1923 and 1946 found that, with two
exceptions — the nominations of Charles Evans Hughes in 1930 and Harold H. Burton to
be Associate Justices in 1945 — all of the nominations were first “processed by a
subcommittee prior to consideration by the full committee membership.” David Gregg
Farrelly, “Operational Aspects of the Senate Judiciary Committee,” (Ph.D. diss., Princeton
University: 1949), pp. 184-185. (Hereafter cited as Farrelly, “Operational Aspects.”)
15
The four other nominations not receiving public confirmation hearings even though
referred to the Judiciary Committee were of former New York governor and former
Supreme Court Associate Justice Charles Evans Hughes in 1930, former federal prosecutor
Owen J. Roberts in 1930, Senator Hugo L. Black in 1937, and Senator Harold H. Burton
in 1945.
Farrelly, in “Operational Aspects,” also lists the Supreme Court nomination of former
Michigan governor Frank Murphy in 1940 as one not receiving a confirmation hearing.
Farrelly notes, at pp. 191-192, that the Senate Judiciary subcommittee which first processed
(continued...)
CRS-8
Not indicated in the “Public hearing date(s)”column is the precise length (in
minutes or hours) of each public hearing session. The hearing sessions for a few
Supreme Court nominations during the 1925 to 1946 period lasted for hours,
extending over several days;16 others, however, were brief and perfunctory in nature,
held only long enough to accommodate the small number of witnesses who wished
to testify against a nominee.17
From Tom C. Clark’s appointment in 1949 through the nomination of Samuel
A. Alito, Jr. in 2005-2006, all but three of 34 Supreme Court nominations have
received public confirmation hearings before the Senate Judiciary Committee or a
Judiciary subcommittee.18 The first of the three exceptions involved the 1954
nomination of John M. Harlan II, made less than a month before the final
adjournment of a Congress. At the beginning of the next Congress, however, Harlan
was re-nominated, and hearings were held on that nomination.19 The second and
third exceptions involved the Associate Justice nominations of John G. Roberts Jr.
and Harriet E. Miers in 2005, both of which were withdrawn by the President before
the scheduled start of confirmation hearings.
15
(...continued)
the nomination “voted against public hearings.” That vote notwithstanding, the nominee
voluntarily appeared before the subcommittee on Jan. 11, 1940, in a public session at which
four Senators “all questioned Mr. Murphy about his views of the Constitution and the duties
of a Supreme Court Justice.” “Senate Body Backs Murphy for Court,” New York Times,
Jan. 12, 1940, p. 1. Based on this and other similar newspaper accounts of the subcommittee
session, Jan. 11, 1940 is listed below, in Table 1 as a public hearing date for the Murphy
nomination.
16
See, in Table 1, the multiple hearing days for the nominations of Felix Frankfurter in
1939 and Robert H. Jackson in 1941.
17Thorpe, Journal
(continued...)
CRS-7
decades, the Stone nomination was one of nine Court nominations that received
public confirmation hearings before either the full Judiciary Committee or a Judiciary
subcommittee,12 while six other nominations did not receive public hearings. One
of the six nominees not receiving a public confirmation hearing was Senator James
F. Byrnes, whose nomination in 1941, as noted earlier, was considered directly by the
Senate without referral to the Judiciary Committee.13
Not indicated in the “Public hearing date(s)”column is the length (in minutes or
hours) of each public hearing session. The hearing sessions for a few Supreme
Court nominations during the 1925 to1945 period lasted for hours; others, however,
were brief and perfunctory in nature, held only long enough to accommodate the
small number of witnesses who wished to testify against a nominee.14
From Fred M. Vinson’s Chief Justice appointment in 1946 through the
nomination of Harriet E. Miers to be Associate Justice in 2005, all but three of 34
Supreme Court nominations have received public confirmation hearings before the
Senate Judiciary Committee or a Judiciary subcommittee.15 The first of the three
exceptions involved the 1954 nomination of John M. Harlan II, made less than a
month before the final adjournment of a Congress. At the beginning of the next
Congress, however, Harlan was re-nominated, and hearings were held on that
11
(...continued)
of Public Law, vol. 18, 1969, pp. 371-402.
12
A scholar examining the procedures followed by the committee in its consideration of 15
Supreme Court nominations referred to it between 1923 and 1947 found that, with two
exceptions — the nominations of Charles Evans Hughes in 1930 and Harold H. Burton to
be Associate Justices in 1945 — all of the nominations were first “processed by a
subcommittee prior to consideration by the full committee membership.” David Gregg
Farrelly, “Operational Aspects of the Senate Judiciary Committee," (Ph.D. diss., Princeton
University: 1949), pp. 184-185. (Hereafter cited as Farrelly, “Operational Aspects.”)
13
The five other nominations not receiving confirmation hearings even though referred to
the Judiciary Committee were of former New York governor and former Supreme Court
Associate Justice Charles Evans Hughes in 1930; former federal prosecutor Owen J. Roberts
in 1930; Senator Hugo L. Black in 1937; Attorney General and former Michigan governor
Frank Murphy in 1940; and former Senator Harold H. Burton in 1945.
14
For example, a Judiciary subcommittee hearing on the 1932 nomination of Benjamin N.
Cardozo lasted only five minutes, during which one witness testified in opposition.
Likewise, when the Judiciary Committee extended open invitations for witnesses to testify
in opposition at the confirmation hearings for Stanley F. Reed in 1938, William O. Douglas
in 1939, Harlan F. Stone (for Chief Justice) in 1941, and Wiley B. Rutledge in 1943, no
and Fred
M.Vinson (for Chief Justice) in 1946, no witnesses appeared to protest against Douglas or
Stone, and “only one or two persons filed
protests” against Reed and Rutledge. protests in each case against Reed, Vinson and
Rutledge.” Farrelly, “Operational Aspects,” pp. 194-195.
1518
The last Supreme Court nomination on which a Senate Judiciary subcommittee held
hearings was the 1954 nomination of Earl Warren to be Chief Justice. The subcommittee
held public hearings on the nomination on Feb. 2 and 19, 1954, after which the full
committee, on Feb. 24, 1954, voted to report the nomination favorably. All subsequent
hearings on Supreme Court nominations were held by the full Judiciary Committee.
CRS-8
nomination.16 The second and third exceptions involved the Associate Justice
nominations of John G. Roberts Jr. and Harriet E. Miers in 2005, both of which were
withdrawn by the President before the scheduled start of confirmation hearings.
Length of Hearings in Days. The number of days given to confirmation
hearings has varied greatly from one Supreme Court nomination to another,
particularly in recent decades. Following the 19 days of hearings held on the
19
The Judiciary Committee held two days of confirmation hearings on the second Harlan
nomination, on Feb. 24 and 25, 1955. The Feb. 24 session, held in closed session, heard
the testimony of nine witnesses (seven in favor of confirmation, and two opposed). Luther
A. Huston, “Harlan Hearing Held by Senators,” New York Times, Feb. 25, 1955, p. 8. The
committee also began the Feb. 25 hearing in closed session, to hear the testimony of
additional witnesses. However, for Judge Harlan, who was the last scheduled witness, the
committee “voted to open the hearing to newspaper reporters for his testimony.” Luther A.
Huston, “Harlan Disavows ‘One World’ Aims in Senate Inquiry,” New York Times, Feb. 26,
1955, p. 1.
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Length of Hearings in Days. The number of days given to public
confirmation hearings has varied greatly from one Supreme Court nomination to
another, particularly in recent decades. Following the 19 days of hearings held on
the Brandeis nomination in 1916, Court nominations through the Associate Justice
nomination of Abe Fortas in 1965 typically received either one or two days of
hearings.
However, from 1967 through November 2005, 14January 2006, 15 of the 2021 Court
nominations which advanced through the hearings stage received four or more days
of open confirmation hearings. Four of the 1415 nominations received 11 or more days
of hearings,1720 while another received eight days of hearings.1821 By contrast, only three
of the 2021 nominations received two or fewer days of hearings.19
Hearings on the pending nomination of Samuel A. Alito Jr. for Associate Justice
are scheduled to begin on January 9, 2006, and are expected to last at least four days.22
Nominations Reported Out of Committee to Full Senate. Supreme
Court nominations referred to the Judiciary Committee have almost always been
reported to the Senate. If a majority of its members oppose confirmation, the
Judiciary Committee technically may decide not to report a Supreme Court
nomination. (This tactic would prevent the full Senate from considering the
nominee, unless the Senate were able to undertake successfully the discharge of the
committee.) Table 1, however, shows that the committee has almost never employed
the strategy of not reporting. Of the 113the114 Supreme Court nominations referred to the
Judiciary Committee, it has106 were reported 105 to the Senate.20 (The pending Alito
16
The Judiciary Committee held two days of confirmation hearings on the second Harlan
nomination, on Feb. 24 and 25, 1955. The Feb. 24 session, held in closed session, heard
the testimony of nine witnesses (seven in favor of confirmation, and two opposed). Luther
A. Huston, “Harlan Hearing Held by Senators,” New York Times, Feb. 25, 1955, p. 8. The
committee also began the Feb. 25 hearing in closed session, to hear the testimony of
additional witnesses. However, for Judge Harlan, who was the last scheduled witness, the
committee “voted to open the hearing to newspaper reporters for his testimony.” Luther A.
Huston, “Harlan Disavows ‘One World’ Aims in Senate Inquiry,” New York Times, Feb. 26,
1955, p. 1.
17to the Senate.23 The committee has reported
these nominations in the following four ways.
Reporting. For most of the first five decades in which the Judiciary
Committee considered Supreme Court nominations (1828 to 1863), its usual practice
was simply to report these nominations to the Senate, without any official indication
of the committee members’ opinions regarding them. Twenty-three nominations
were reported to the Senate in this way, and 15 of them were confirmed.
Reporting with a Favorable Recommendation. In 1870, the Judiciary
Committee initiated the practice of reporting to the Senate an explicit
recommendation in favor of confirmation whenever a majority of members supported
a Supreme Court nominee. Over the course of almost a century and a half, the
20
These were the nominations of Robert H. Bork in 1987 (12 hearing days), Clarence
Thomas in 1991 (11 days), and Abe Fortas and Homer Thornberry in 1968 (11 days for their
joint hearings).
1821
In 1969, eight days of confirmation hearings were held on the nomination of Clement F.
Haynsworth.
1922
One day of hearings each was held on the nominations of Warren E. Burger (to be Chief
Justice) in 1969 and Harry A. Blackmun in 1970, while two days of hearings were held on
the nomination of Antonin Scalia in 1986.
2023
As noted earlier, only once prior to the establishment of the Judiciary Committee in 1816
was a Supreme Court nomination referred to committee, and that nomination was reported
to the Senate as well. See in Table 1 the nomination in 1811 of Alexander Wolcott, which
(continued...)
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nomination would be the 106th reported nomination, if the committee ultimately took
that action.) The committee has reported these nominations in the following four
ways.
Reporting. For most of the first five decades in which the Judiciary
Committee considered Supreme Court nominations (1828 to 1863), its usual practice
was simply to report these nominations to the Senate, without any official indication
of the committee members’ opinions regarding them. Twenty-three nominations
were reported to the Senate in this way, and 15 of them were confirmed.
Reporting with a Favorable Recommendation. In 1870, the Judiciary
Committee initiated the practice of reporting to the Senate an explicit
recommendation in favor of confirmation whenever a majority of members supported
a Supreme Court nominee. Over the course of almost a century and a half, thewas considered by a select committee and then reported to the Senate, where it was rejected
by a 9-24 vote.
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committee has favorably reported 7172 Supreme Court nominations, with 6566 receiving
Senate confirmation.2124
Reporting Without Recommendation. On four occasions — three times
in the late 19th century and once in the late 20th century — the Judiciary Committee
has voted to report a Supreme Court nomination while explicitly stating it was not
making a recommendation to the Senate. On each occasion, the committee reported
a nomination without urging the Senate either to confirm or to reject.2225 The Senate
confirmed three of the nominations that were reported in this way, while rejecting the
fourth.2326
Reporting with an Unfavorable Recommendation. On seven occasions
— five times in the 19th century and twice in the 20th century — the Judiciary
Committee voted to report a Supreme Court nomination with a recommendation to
the Senate that it reject the nomination. Only two of the seven nominations received
20
(...continued)
was considered by a select committee and then reported to the Senate, where it was rejected
by a 9-24 vote.
21
Senate confirmation (and each only by a close roll call vote);27 the Senate rejected
four of the others28 and postponed taking action on the fifth.29
24
The six favorably reported nominations which failed to receive Senate confirmation
involved these nominees: George H. Williams, for Chief Justice, in 1873 (nomination
withdrawn); Caleb Cushing, in 1874 (nomination withdrawn); Pierce Butler in 1922 (no
action taken by Senate); Abe Fortas, for Chief Justice, in 1968 (nomination withdrawn);
Clement F. Haynsworth Jr. in 1969 (rejected by Senate); and G. Harrold Carswell in 1970
(rejected by Senate). Butler, it should be noted, was re-nominated and confirmed.
2225
A report that states it is not accompanied by a recommendation can be a way to alert the
Senate that a substantial number of committee members have some reservations about the
nominee which, however, do not rise, at that point, to the level of opposition; it might also
be a way, for reporting purposes, to bridge or downplay differences between committee
members who favor confirmation and other members who oppose it.
23
The three nominees confirmed by the Senate after the Judiciary Committee explicitly
reported their nominations without recommendation were: Melville W. Fuller, for Chief
Justice, in 1888; George Shiras Jr. in 1892; and Clarence Thomas in 1991. A fourth
nomination reported without recommendation, Wheeler H. Peckham, in 1894, was rejected
by the Senate.
CRS-10
Senate confirmation (and each only by a close roll call vote);24 the Senate rejected
four of the others25 and postponed taking action on the fifth.26
Nominations Not Reported Out of Committee. Of the 113
confirmation and other members who oppose it. The latter, for example, was said to be the
purpose for the Judiciary Committee in 1888 reporting the Chief Justice nomination of
Melville W. Fuller without recommendation; the action was described in a news account as
a “compromise between the Democratic minority who desired a report to the Senate in favor
of confirmation, and the Republican majority, who desired to defeat the nomination .... “
“Mr. Fuller’s Nomination,” Washington Post, July 3, 1888, p. 1.
26
The three nominees confirmed by the Senate after the Judiciary Committee explicitly
reported their nominations without recommendation were: Melville W. Fuller, for Chief
Justice, in 1888; George Shiras Jr. in 1892; and Clarence Thomas in 1991. A fourth
nomination reported without recommendation, Wheeler H. Peckham, in 1894, was rejected
by the Senate.
27
See in Table 1 the second nomination of Stanley Matthews in 1881 (confirmed 24-23)
and the nomination of Lucius Q. C. Lamar in 1888 (confirmed 32-28).
28
The nominations reported unfavorably and then rejected by the Senate involved these
nominees: Ebenezer R. Hoar in 1869 (rejected 24-33); William B. Hornblower in 1894
(rejected 24-30); John J. Parker in 1930 (rejected 39-41); and Robert H. Bork in 1987
(rejected 42-58).
29
The Senate in 1829 postponed taking action on the nomination of John Crittenden after
receiving an adverse report on the nomination from the Judiciary Committee.
CRS-11
Nominations Not Reported Out of Committee. Of the 114 Supreme
Court nominations referred to the Judiciary Committee since its establishment, eight
were not reported by the committee to the Senate. The final outcome for all eight
nominees, however, was determined not by the failure of their nominations to be
reported out of committee, but by action, or lack of action, taken outside the
committee — by the Senate, Congress as a whole, or the President. While five of
the the
nominees were never confirmed to the Court,2730 the other three ultimately were,
after being re-nominated.28
24
See in Table 1 the second nomination of Stanley Matthews in 1881 (confirmed 24-23)
and the nomination of Lucius Q. C. Lamar in 1888 (confirmed 32-28).
25
The nominations reported unfavorably and then rejected by the Senate involved these
nominees: Ebenezer R. Hoar in 1869 (rejected 24-33); William B. Hornblower in 1894
(rejected 24-30); John J. Parker in 1930 (rejected 39-41); and Robert H. Bork in 1987
(rejected 42-58).
26
The Senate in 1829 postponed taking action on the nomination of John Crittenden after
receiving an adverse report on the nomination from the Judiciary Committee.
27 after
being re-nominated.31
Final Action by the Senate or the President. From the first Supreme
Court appointments in 1789 to the present day, Presidents have made 158
nominations to the Court. Table 1 shows, in the “Final action by Senate or
President” column, that the Senate confirmed 122 of these nominations, or roughly
three-fourths.32 Of the 36 nominations that were not confirmed, 11 were rejected by
the Senate (all in roll-call votes),33 11 were withdrawn by the President,34 and 14
30
In 1853, the nomination of William C. Micou was referred to the Judiciary Committee and
on the same day ordered discharged by the Senate, where no action was taken. In 1866, the
nomination of Henry Stanbery was referred to the Judiciary Committee, but shortly
afterwards, while the nomination was pending in the Senate, the Associate Justice position
to which Stanbery had been nominated was eliminated by statute. In 1893, the nomination
of William B. Hornblower was referred to the Judiciary Committee, but not reported; later
that year, in a new session of Congress, Hornblower was re-nominated, reported unfavorably
by the Judiciary Committee (in early 1894), and rejected by the Senate, 24-30. In 1968, the
Judiciary Committee declined to report the nomination of Homer Thornberry to succeed
Associate Justice Abe Fortas until the final outcome of the nomination of Fortas to be Chief
Justice was determined. The Thornberry and Fortas nominations were both withdrawn by
the President after a motion to close debate on the Fortas nomination failed to pass in the
Senate. (The failure of Fortas’s Chief Justice nomination eliminated the prospective
Associate Justice vacancy that Thornberry had been nominated to fill.) In 2005, the
nomination of Harriet E. Miers was withdrawn by the President before the Judiciary
Committee held hearings on the nomination.
2831
In February 1881, just before the final adjournment of the 46th Congress, the Judiciary
Committee voted to postpone taking action on the Supreme Court nomination of Stanley
Matthews; shortly afterwards, however, in a special session of the 47th Congress, Matthews
was re-nominated, and, although his second nomination was reported unfavorably by the
Judiciary Committee, it was confirmed by the Senate, 24-23. In Nov. 1954, late in the 83rd
Congress, the nomination of John M. Harlan II was referred to the Judiciary Committee,
where no action was taken; in 1955, Harlan was re-nominated, considered and reported
favorably by the Judiciary Committee, and confirmed by the Senate. In Sept. 2005, before
the scheduled start of confirmation hearings, the nomination of John G. Roberts Jr. to be
Associate Justice was withdrawn and, on the same day of the withdrawal, Roberts was renominated for Chief Justice; the second Roberts nomination was reported favorably by the
Judiciary Committee and confirmed by the Senate.
CRS-11
Final Action by the Senate or the President. From the first Supreme
Court appointments in 1789 to the present day, Presidents have made 157
nominations to the court, not including the pending nomination of Samuel A. Alito
Jr. Table 1 shows, in the “Final action by Senate or President” column, that the
Senate confirmed 121 of these nominations, or roughly three-fourths.29 Of the 36
nominations that were not confirmed, 11 were rejected by the Senate (all in roll-call
votes),30 11 were withdrawn by the President,31 and 14 lapsed at the end of a session
of Congress without a Senate vote cast on whether to confirm.32
32
The exact confirmation percentage is 77.2%, reached by dividing 122 confirmations by
158 nominations.
33
The earliest Senate rejection of a Supreme Court nomination occurred in 1795, when
President George Washington’s nomination of John Rutledge to be Chief Justice failed on
a 10-14 vote. The latest instance was the Senate’s rejection of Robert H. Bork in 1987, by
a 42-58 vote. Between Rutledge and Bork, the following nominations were also rejected:
(continued...)
CRS-12
lapsed at the end of a session of Congress without a Senate vote cast on whether to
confirm.35
While the invariable practice of the Senate in recent decades has been to vote
on Supreme Court nominations by roll call, this historically was usually not the case.
Table 2, at the end of this report, shows that of the132 Senate votes on whether to
29
The exact confirmation percentage is 77.1%, reached by dividing 121 confirmations by
157 nominations (excluding the 158th nomination of Samuel A. Alito Jr.).
30
The earliest Senate rejection of a Supreme Court nomination occurred in 1795, when
President George Washington’s nomination of John Rutledge to be Chief Justice failed on
a 10-14 vote. The latest instance was the Senate’s rejection of Robert H. Bork in 1987, by
a 42-58 vote. Between Rutledge and Bork, the following nominations were also rejected:the 133 Senate votes on whether to
confirm (resulting in 122 confirmations and 11 rejections), 60 decisions were reached
by roll-call votes, and the other 73 by voice vote or unanimous consent.
Initially, for some 40 years, the Senate rarely used roll-call votes to decide
Supreme Court nominations. Starting in the 1830s, however, and continuing through
the 1880s, the Senate used roll-call votes on Supreme Court nominations somewhat
more often than unrecorded votes. The trend reversed between 1890 and 1965, when
fewer than one-third of Senate decisions on confirming Court nominations were by
roll-call vote. Since 1967, though, every Senate vote on whether to confirm a
Supreme Court nomination has been by roll call. Table 2 shows these trends within
the four historical periods just noted, by breaking down the number of Senate
decisions on confirmation within each period according to whether made by voice
33
(...continued)
Alexander Wolcott in 1811, John C. Spencer in 1844, George W. Woodward in 1846,
Ebenezer R. Hoar in 1870, William B. Hornblower in 1894, Wheeler H. Peckham in 1894,
John J. Parker in 1930, Clement F. Haynsworth Jr. in 1969, and G. Harrold Carswell in
1970.
3134
The following Supreme Court nominations were withdrawn, in the years indicated, with
the Presidents who withdrew them shown in parentheses: The first nomination of William
Paterson, in 1793 (George Washington); the first nomination of Reuben H. Walworth, in
1844 (John Tyler); the second nomination of John C. Spencer, in 1844 (John Tyler); the
third nomination of Reuben H. Walworth, in 1845 (John Tyler); the second nomination of
Edward King, in 1845 (John Tyler); George H. Williams and Caleb Cushing, both in 1874
(Ulysses S. Grant); Abe Fortas and Homer Thornberry, both in 1968 (Lyndon B. Johnson);
John G. Roberts Jr. and Harrier E. Miers, both in 2005 (George W. Bush). Less than a week
after his first nomination was withdrawn, Paterson was re-nominated by President
Washington and confirmed by the Senate on the same day. On the same day that President
Bush withdrew the Roberts nomination to be Associate Justice, he re-nominated Roberts to
be Chief Justice, and the latter nomination was confirmed.
3235
The 14 nominations that lapsed at the end of a session of Congress, without a Senate
confirmation or rejection vote or a withdrawal by the President having occurred, can be
broken into the following groups according to Senate actions, or lack of Senate actions,
taken: On three nominations (John Crittenden in 1829, the first nomination of Roger Taney
in 1835, and George E. Badger in 1853), the Senate voted to postpone taking action; the
Senate tabled two nominations (the first nomination of Edward King in 1844 and Edward
A. Bradford in 1852); on one nomination, the Senate rejected a motion to proceed (Jeremiah
S. Black in 1861, by a 25-26 vote); and on eight nominations, there was no record of any
vote taken (the second nomination of Reuben H. Walworth in 1844, John M. Read in 1845,
William C. Micou in 1853, Henry Stanbery in 1866, the first nomination of Stanley
Matthews in 1881, the first nomination of William B. Hornblower in 1893, the first
nomination of Pierce Butler in 1922, and the first nomination of John M. Harlan II in 1954).
However, four of the 14 persons whose nominations lapsed in one session of Congress were
re-nominated in the next congressional session and confirmed (Taney in 1835, Matthews in
1881, Butler in 1922, and Harlan in 1955).
CRS-12
confirm (resulting in 121 confirmations and 11 rejections), 59 decisions were reached
by roll-call votes, and the other 73 by voice vote or unanimous consent.
Initially, for some 40 years, the Senate rarely used roll-call votes to decide
Supreme Court nominations. Starting in the 1830s, however, and continuing through
the 1880s, the Senate used roll-call votes on Supreme Court nominations somewhat
more often than unrecorded votes. The trend reversed between 1890 and 1965, when
fewer than one-third of Senate decisions on confirming Court nominations were by
roll-call vote. Since 1967, though, every Senate vote on whether to confirm a
Supreme Court nomination has been by roll call. Table 2 shows these trends within
the four historical periods just noted, by breaking down the number of Senate
decisions on confirmation within each period according to whether made by voice13
vote or unanimous consent (UC) on the one hand, or by roll-call vote, on the other.
As already mentioned, all 11 Senate rejections of Supreme Court nominations were
accomplished by roll-call votes.
Historically, recorded vote margins on Supreme Court nominations have varied
considerably. Some roll-call votes, either confirming or rejecting a nomination, have
been close.3336 Most votes, however, have been overwhelmingly in favor of
confirmation.3437
Days from Date of Senate Receipt of Nomination to First Hearing.
For Supreme Court nominations, the amount of time elapsing between Senate receipt
and start of confirmation hearings has varied greatly. Table 1 shows that, for all 4143
Court nominations receiving public confirmation hearings (starting with the Brandeis
nomination in 1916), the shortest time that elapsed between Senate receipt and start
of hearings was twofour days, for the nomination of Felix Frankfurter in 1939; the
second-nominations of both Benjamin N. Cardozo in 1932
and William O. Douglas in 1939; the second shortest time interval of this sort was four days, also in 1939, for the
nomination of William O. Douglasfive
days, for the nominations of both Stanley F. Reed in 1938 and Felix Frankfurter in
1939. The longest time elapsing between Senate
receipt and first day of confirmation
hearings was 82 days, for the nomination of
33 Potter Stewart in 1959; the next-longest
time interval of this sort was 70 days, for nominee Robert H. Bork in 1987.
In recent decades, from the late 1960s to the present, the Judiciary Committee has
tended to take more time in starting hearings on Supreme Court nominations than it
did previously. Table 1 reveals that prior to 1967, a median of 10 days elapsed
between Senate receipt of Supreme Court nominations and the first day of
confirmation hearings. From the Supreme Court nomination of Thurgood Marshall
in 1967 through the nomination of Samuel A. Alito Jr. to be Associate Justice in
36
The closest roll calls ever cast on Supreme Court nominations were the 24-23 vote in
1881 confirming Stanley Matthews, the 25-26 vote in 1861 rejecting a motion to proceed
to consider the nomination of Jeremiah S. Black, and the 26-25 Senate vote in 1853 to
postpone consideration of the nomination of George E. Badger. Since the 1960s, the closest
roll calls on Supreme Court nominations were the 52-48 vote in 1991 confirming Clarence
Thomas, the 45-51 vote in 1970 rejecting G. Harrold Carswell, the 45-55 vote in 1969
rejecting Clement Haynsworth Jr., the 58-42 vote in 2006 confirming Samuel A. Alito Jr.,
the 42-58 vote in 1987 rejecting Robert H. Bork, and the
65-33 vote confirming William H.
Rehnquist to be Chief Justice in 1986. Also noteworthy
was the 45-43 vote in 1968
rejecting a motion to close debate on the nomination of Abe
Fortas to be Chief Justice;
however, the roll call was not as close as the numbers by
themselves suggested, since
passage of the motion required a two-thirds vote of the
Members present and voting.
3437
The most lopsided of these votes were the unanimous roll calls confirming Morrison R.
Waite to be Chief Justice in 1874 (63-0), Harry A. Blackmun in 1970 (94-0), John Paul
Stevens in 1975 (98-0), Sandra Day O’Connor in 1981 (99-0), Antonin Scalia in 1986 (980), and Anthony M. Kennedy in 1988 (97-0); and the near-unanimous votes confirming
Noah H. Swayne in 1862 (38-1),Warren E. Burger in 1969 to be Chief Justice (74-3), Lewis
F. Powell Jr. in 1971 (89-1), and Ruth Bader Ginsburg in 1993 (96-3).
CRS-13
Potter Stewart in 1959; the next-longest time interval of this sort was 70 days, for
nominee Robert H. Bork in 1987.
In recent decades, from the late 1960s to the present, the Judiciary Committee has
tended to take more time in starting hearings on Supreme Court nominations than it
did previously. Table 1 reveals that prior to 1967,14
2005-2006,38 a median of 1121 days elapsed
between Senate receipt of Supreme Court nominations and the first day of
confirmation hearings. From the Supreme Court nomination of Thurgood Marshall
in 1967 through the nomination of John G. Roberts Jr. to be Chief Justice in 2005,35
a median of 15 days elapsed between Senate receipt and first day of confirmation
hearings.36 between Senate receipt and first day of
confirmation hearings.39
Starting in the 1990s, the inclination of the Judiciary Committee has been to
allow at least four weeks to pass between Senate receipt of Supreme Court
nominations and the start of confirmation hearings. This block of time is intended to
be used by the committee members and staff for thorough study and review of
background information about nominees and issues relevant to their nominations, in
preparation for the hearings. In the case of fourfive of the fivesix most recent Court
nominations to receive confirmation hearings (starting with the David H. Souter
nomination in 1990), the shortest elapsed time between Senate receipt and first day
of hearings was 28 days.3740 While the elapsed time for the fifthsixth nomination, of John
G. Roberts Jr. to be Chief Justice in 2005, was only six days, another, longer time
interval is more meaningful. Table 1 shows that Roberts’s earlier nomination to be
Associate Justice — later withdrawn, in order to have Roberts be re-nominated for
Chief Justice — was received by the Senate 45 days prior to the start of hearings on
his Chief Justice nomination. Confirmation hearings on the pending Supreme Court
nomination of Samuel A. Alito Jr. are scheduled to begin on January 9, 2006, 60 days
after Senate receipt of the nomination on November 10, 2005.
Days from Senate Receipt to Final Committee Vote. The time elapsing
between Senate receipt of Supreme Court nominations from the President and final
committee votes has also varied greatly. Table 1 shows that, for the 107108 Court
35
nominations that received final committee votes,41 the nomination receiving the most
prompt committee vote was of Caleb Cushing in 1874, which was reported by the
Judiciary Committee on the same day that the Senate received it from the President.42
The committee votes on 14 other nominations to the court occurred three days or less
38
In calculating the median elapsed time for the contemporary period, the Marshall
nomination in 1967 was selected as the starting point for the following reason. The
Marshall nomination, it could be argued, marked the start of an era in which the
confirmation hearings of most, if not all, Supreme Court nominees were highly charged
events, covered closely by the news media, with nominees interrogated rigorously and
extensively (and for more than a day) about their judicial philosophy as well as their views
on constitutional issues and the proper role of the Supreme Court in the U.S. government.
For the Marshall nomination, the elapsed time between Senate receipt and start of
confirmation hearings was 30 days.
3639
See bottom rows of Table 1 for median number of days that elapsed from the date
Supreme Court nominations were received in the Senate to first hearing dates, for three
different time spans.
3740
For the fourfive nominations, the elapsed time between Senate receipt of nomination and the
first day of confirmation hearings was 50 days for David Souter in 1990, 64 days for
Clarence Thomas in 1991, 28 days for Ruth Bader Ginsburg in 1993, and 56 days for
Stephen G. Breyer in 1994.
CRS-14
nominations that received final committee votes,38 the nomination receiving the most
prompt committee vote was of Caleb Cushing in 1874, which was reported by the
Judiciary Committee on the same day that the Senate received it from the President.39
The committee votes on 14 other nominations to the court occurred three days or less
after the dates of Senate receipt.40 Stephen
G. Breyer in 1994, and 60 days for Samuel A. Alito Jr. in 2005-2006.
41
As already mentioned, the first such nomination, of Alexander Wolcott in 1811, was
reported by a select committee; all subsequently reported nominations were reported by the
Senate Judiciary Committee.
42
Ironically, five days after the committee’s favorable, and extremely prompt,
recommendation of Cushing, President Ulysses S. Grant withdrew the nomination.
CRS-15
after the dates of Senate receipt.43 At the other extreme was the 1916 nomination of
Louis D. Brandeis, on which the Judiciary Committee voted 117 days after Senate
receipt and referral to the committee. Five other nominations as well, one in the 19th
century and four in the 20th, received committee votes more than 80 days after Senate
receipt from the President.4144
In recent decades, the Judiciary Committee has taken much more time in casting
a final vote on Supreme Court nominations than it did previously. Table 1 shows that
prior to 1967, a median of nine days elapsed between Senate receipt of Supreme
Court nominations and the committee’s final vote on reporting them to the full
Senate.4245 From the Supreme Court nomination of Thurgood Marshall in 1967 through
the nomination of John G. Roberts Jr. to be Chief Justice in 2005, a median of 37 days
Samuel A. Alito Jr. in 2005 (voted on by the committee in 2006),
a median of 50 days elapsed between Senate receipt and final committee vote.4346
Somewhat earlier, during the presidency of Dwight Eisenhower (1953 to 1961),
fourtwo of five Supreme Court nominations all were pending, prior to Judiciary Committee vote,
38
As already mentioned, the first such nomination, of Alexander Wolcott in 1811, was
reported by a select committee; all subsequently reported nominations were reported by the
Senate Judiciary Committee.
39
Ironically, five days after the committee’s favorable, and extremely prompt,
recommendation of Cushing, President Ulysses S. Grant withdrew the nomination.
40
vote, in excess of the 1967-to-2006 median of 50 days for that time interval (while
two other nominations were pending 44 and 49 days respectively before receiving
committee action);47 however, the corresponding time intervals for the next three
43
Five nominations were voted on by the Judiciary Committee one day after their receipt
by the Senate: Robert C. Grier in 1846; John A. Campbell in 1853; Morrison R. Waite, to
be Chief Justice, in 1874; Horace Gray in 1881; and Harold H. Burton in 1945. Six
nominations were voted on by the committee two days after Senate receipt: James M.
Wayne in 1835; Samuel Nelson in 1845; Noah H. Swayne in 1862; David Davis in 1862;
Stephen J. Field in 1963; and Oliver Wendell Holmes in 1902. Three nominations were
voted on by the committee three days after Senate receipt: Horace H. Lurton in 1909; Willis
Van Devanter in 1910; and Joseph R. Lamar in 1910.
4144
The first of Reuben H. Walworth’s three nominations to the Court in 1844 was voted on
by the Judiciary Committee 93 days after Senate receipt and committee referral. During the
20th century, the Judiciary Committee, in addition to its 1916 vote on the Brandeis
nomination, voted on the following nominations more than 80 days after Senate receipt:
Potter Stewart in 1959 (93 days); Robert H. Bork in 1987 (91 days), Abe Fortas, to be Chief
Justice, in 1968 (83 days); and Clarence Thomas in 1991 (81 days).
4245
All of the 15 aforementioned nominations on which the Judiciary Committee voted three
days or less after Senate receipt were made prior to 1946, and 14 of the 15 were made prior
to 1911.
4346
See bottom rows of Table 1 for median number of days that elapsed from the date
Supreme Court nominations were received in the Senate to final Senate vote dates, for three
different time spans.
CRS-15
well in excess of the 1967 to 2005 median of 37 days for that time interval;44 however,
the corresponding time intervals for the next three Court nominations (two by
President John F. Kennedy and one by President Lyndon B. Johnson) were all well
below the 37-day median.45
47
The four Eisenhower nominations for which 44 or more days elapsed from the date
received in the Senate to the date voted on by the Senate Judiciary Committee were those
of: Earl Warren to be Chief Justice in 1954, 44 days; John M. Harlan II in 1955, 59 days;
William J. Brennan Jr. in 1957, 49 days; and Potter Stewart in 1959, 93 days. Three of the
nominees — Warren, Brennan, and Stewart — were already on the Court as recess
appointees, a circumstance that served perhaps to make action on their nominations seem
less urgent to the committee than if their seats on the Court had been vacant. Harlan,
however, was not a recess appointee at the time of his nomination. See “The Harlan
Nomination,” New York Times, Feb. 25, 1955, p. 20, discussing, according to the editorial,
(continued...)
CRS-16
Court nominations (two by President John F. Kennedy and one by President Lyndon
B. Johnson) were all well below the 50-day median.48
Days from Senate Receipt to Final Senate or Presidential Action.
The Supreme Court confirmation process now typically extends over a much longer
period of time than it once did. Table 1 shows that from the appointment of the first
Justices in 1789, continuing into the early 20th century, most Senate confirmations of
Supreme Court nominees occurred within a week of the nominations being made by
the President. In recent decades, by contrast, it has become the norm for the Court
appointment process — from Senate receipt of nominations from the President to
Senate confirmation or other final action (such as Senate rejection, or withdrawal by
the President) — to take more than two months.
The last column of Table 1 shows the number of days that elapsed from the dates
Supreme Court nominations were received in the Senate until the dates of final Senate
or presidential action. The number of elapsed days is shown for 149150 of the 158
nominations listed in the table, with no elapsed time shown for the pending Alito
nomination or for eight nominations on which there was no record of any kind of
official or effective final action by the Senate or by the President.4649 At the bottom of
the table, the median number of elapsed days from initial Senate receipt until final
44
For four Eisenhower nominations, the number of days elapsing from the date received in
the Senate to the date voted on by the Senate Judiciary Committee were the following: Earl
Warren to be Chief Justice in 1954, 44 days; John M. Harlan II in 1955, 59 days; William
J. Brennan Jr. in 1957, 49 days; and Potter Stewart in 1959, 93 days. Three of the nominees
— Warren, Brennan, and Stewart — were already on the Court as recess appointees, a
circumstance that served perhaps to make action on their nominations seem less urgent to
the committee than if their seats on the Court had been vacant. Harlan, however, was not
a recess appointee at the time of his nomination. See “The Harlan Nomination,” New York
Times, Feb. 25, 1955, p. 20, discussing, according to the editorial, the “inexcusable delay”
on the part of the committee in acting on the nomination and the objections to the
nomination voiced by a few of the committee’s members. (Ultimately, the committee voted
10-4 to report the nomination favorably.)
45
action by the Senate or the President is shown for three historical periods — 17892006, 1789-1966, and 1967-2006.
In recent decades, the median elapsed time for Supreme Court nominations to
receive final action has increased dramatically, dwarfing the median time taken on
earlier nominations. Table 1 shows that from 1967 (starting with the nomination of
Thurgood Marshall) through January 30, 2006 (the date on which the Senate
confirmed the nomination of Samuel A. Alito Jr., a median of 69 days elapsed from
47
(...continued)
the “inexcusable delay” on the part of the committee in acting on the nomination and the
objections to the nomination voiced by a few of the committee’s members. (Ultimately, the
committee voted 10-4 to report the nomination favorably.) Receiving much more
expeditious committee action was President Eisenhower’s fifth and final Supreme Court
nomination, of Charles E. Whittaker, which was approved by the Judiciary Committee 16
days after Senate receipt.
48
The days that elapsed from the date received in the Senate to the date voted on by the
Senate Judiciary Committee were eight days and 25 days for the 1962 nominations of Byron
R. White and Arthur J. Goldberg and 13 days for the 1965 nomination of Abe Fortas to be
Associate Justice.
4649
Besides nominations that received official final Senate action in the form of confirmation
or rejection (121122 and 11 respectively), or that were withdrawn by the President (11), six
others are treated in the table as also receiving final action, albeit not of a definitive official
sort — with three having been postponed by the Senate, two tabled, and one (the nomination
of Jeremiah S. Black in 1861) not considered after a motion to proceed was defeated by a
25-26 vote. While the six nominations remained pending in the Senate after the noted
actions, the effect of the actions, it can be argued, was decisive in eliminating any prospect
of confirmation, and thus constituted a final Senate action for time measurement purposes.
Accordingly, for these six nominations, the number of days elapsed is measured from date
of Senate receipt to the dates of effective final action just noted.
CRS-16
action by the Senate or the President is shown for three historical periods — 17892005, 1789-1966, and 1967-2005.
In recent decades, the median elapsed time for Supreme Court nominations to
receive final action has increased dramatically, dwarfing the median time taken on
earlier nominations. Table 1 shows that from 1967 (starting with the nomination of
Thurgood Marshall) through 2005 (ending with the nomination of John G. Roberts Jr.
for Chief Justice), a median of 67 days elapsed from 17
when a Supreme Court
nomination was received in the Senate until the date it
received final action, compared
with a median of seven days for the same interval for
the prior years of 1789 to 1966.47
50 Most of the Supreme Court nominations receiving
final action within a relatively brief
period of time — for example, within three days
of initial receipt in the Senate —
occurred before the 20th century,4851 while most of the
nominations receiving final action
after a relatively long period of time — for
example, 75 days or more after receipt in
the Senate — occurred in the 20th century
(and nearly all of these since 1967).4952
The presence of Senate committee involvement has clearly tended to increase the
overall length of the Supreme Court confirmation process. Of the 26 Court
nominations made prior to the establishment of the Judiciary Committee in 1816, only
one, of Alexander Wolcott in 1811, received final action more than seven days after
initial Senate receipt (being rejected by the Senate nine days after receipt). It also was
the only Court nomination prior to 1816 which was referred to, and considered by, a
select committee. Subsequently, until the Civil War, six nominations received final
action more than 50 days after initial Senate receipt. All six were first considered and
reported by the Judiciary Committee. During the same period, other Court
nominations were considered and acted on by the Senate more quickly –— some with,
and some without, first being referred to committee.
Subsequent historical developments involving the Senate Judiciary Committee
further served to increase the median length of the Supreme Court confirmation
process. One such development was the Senate’s adoption of a rule in 1868 that
47nominations be referred to appropriate standing committees, resulting in the referral
of nearly all Supreme Court nominations thereafter to the Judiciary Committee.
Another was the increasing practice of the Judiciary Committee in the 20th century of
holding public confirmation hearings on Supreme Court nominations (ultimately to
become standard practice). A third, more recent, historical trend has involved the
pace and thoroughness of the Judiciary Committee in preparing for and conducting
confirmation hearings. Since the late 1960s, close and thorough examination of the
50
At first glance, the most recently confirmed nomination, of John G. Roberts Jr. for Chief
Justice, appears to be a deviation from the 1967 to 2005 median interval from date received
to final action of 6769 days, as the nomination was confirmed only 23 days after its initial
receipt in the Senate. However, it can be argued that a more meaningful context is to see
the Roberts Chief Justice nomination (received in the Senate on Sept. 6, 2005) in relation
to the earlier July 29, 2005, nomination of Judge Roberts to be Associate Justice. After the
death of Chief Justice William H. Rehnquist on Sept. 3, 2005, the Roberts Associate Justice
nomination was withdrawn, and he was re-nominated to be Chief Justice. Hearings on the
Roberts Associate Justice nomination, set to begin on Sept. 6, were cancelled, and
rescheduled hearings, on the Chief Justice nomination, began on Sept. 12. The overall time
that elapsed from the Associate Justice nomination of Judge Roberts on July 29 until Senate
confirmation of his Chief Justice nomination on Sept. 29 was 62 days.
4851
Table 1 shows that 43 nominations received final Senate or presidential action three days
or less after date of receipt in the Senate. Thirty-six of the 43 were pre-20th century
nominations.
4952
Table 1 shows that 1516 nominations received final Senate or presidential action more than
75 days after date of receipt in the Senate. ElevenTwelve of the 1516 were 20th century nominations,
with nine made since 1967.
CRS-17
nominations be referred to appropriate standing committees, resulting in the referral
of nearly all Supreme Court nominations thereafter to the Judiciary Committee.
Another was the increasing practice of the Judiciary Committee in the 20th century of
holding public confirmation hearings on Supreme Court nominations (ultimately to
become standard practice). A third, more recent, historical trend has involved the
pace and thoroughness of the Judiciary Committee in preparing for and conducting
confirmation hearings. Since the late 1960s, close and thorough examination of the10 made since 1967.
CRS-18
background, qualifications, and views of Supreme Court nominees has become the
norm for the Judiciary Committee, an approach that typically extends the confirmation
process by at least several weeks, as a result of preparation for and holding of
confirmation hearings.
Recess Appointments to the Supreme Court. On 12 occasions in the
nation’s history, Presidents have made temporary recess appointments to the Supreme
Court without submitting nominations to the Senate. Table 1 identifies all of these
12 appointments, showing how each was related to a later nomination of the appointee
for the same position. The table shows that nine of the 12 recess appointments were
made before the end of the Civil War,5053 with the last three made almost a century later,
in the 1950s, during the presidency of Dwight D. Eisenhower.5154
Each of the 12 recess appointments occurred when a President exercised his
power under the Constitution to make recess appointments when the Senate was not
in session.5255 Historically, when recesses between sessions of the Senate were much
longer than they are today, recess appointments served the purpose of averting long
vacancies on the Court when the Senate was unavailable to confirm a President’s
appointees. The terms of these recess appointments, however, were limited by the
constitutional requirement that they expire at the end of the next session of Congress
(unlike the lifetime appointments Court appointees receive when nominated and then
confirmed by the Senate).5356
Despite the temporary nature of these appointments, every person appointed
during a recess of the Senate except for one — John Rutledge, to be Chief Justice, in
1795 — ultimately received a lifetime appointment to the Court after being nominated
by the President and confirmed by the Senate. As Table 1 shows, all 12 of the recess
50appointees were subsequently nominated to the same position, and 11 (all except for
Rutledge) were confirmed.
Concluding Observations
The preceding discussion suggests that Senate treatment of Supreme Court
nominations has gone through various phases during the more than 200 years of the
53
See in Table 1 the recess appointments of Thomas Johnson in 1791, John Rutledge (to
be Chief Justice) in 1795, Bushrod Washington in 1798, H. Brockholst Livingston in 1806,
Smith Thompson in 1823, John McKinley in 1837, Levi Woodbury in 1845, Benjamin R.
Curtis in 1851, and David Davis in 1862.
5154
See in Table 1 the recess appointments of Earl Warren (to be Chief Justice) in 1953,
William J. Brennan Jr. in 1956, and Potter Stewart in 1958.
5255
Specifically, Article II, Section 2, clause 3 of the U.S. Constitution empowers the
President “to fill up all Vacancies that may happen during the Recess of the Senate, by
granting Commissions which shall expire at the End of their next Session.”
5356
For background on the history of recess appointments to the Supreme Court, and the
policy and constitutional issues associated with those appointments, see CRS Report
RL31112, Recess Appointments of Federal Judges, by Louis Fisher; and Henry B. Hogue,
“The Law: Recess Appointments to Article III Courts,” Political Science Quarterly, vol. 34,
September 2004, p. 656.
CRS-18
appointees were subsequently nominated to the same position, and 11 (all except for
Rutledge) were confirmed.
Concluding Observations
The preceding discussion suggests that Senate treatment of Supreme Court
nominations has gone through various phases during the more than 200 years of the19
Republic. Initially, such nominations were handled without Senate committee
involvement. Later, from 1816 to 1868, most nominations to the Supreme Court
were referred to the Judiciary Committee, but only by motion. Since 1868, as the
result of a change in its rules, the Senate has referred nearly all Court nominations to
the Judiciary Committee. During the rest of the 19th century and early 20th century,
the committee considered nominations without public hearings. Subsequently, public
hearings gradually became the more common, if not invariable, committee practice,
although many of the earlier hearings were perfunctory and held simply to
accommodate a small number of witnesses wishing to testify against the nominees.
Gradually, however, in the latter half of the 20th century, public hearings on Supreme
Court nominations lasting four or more days, with nominees present to answer
extensive questioning from committee members, would become the usual practice.
Also, the overall length of time taken by the Supreme Court confirmation process
has, in general, increased significantly over the course of more than 200 years. From
the appointment of the first Justices in 1789, continuing well into the 20th century,
most Supreme Court nominations received final action (usually, but not always, in the
form of Senate confirmation) within a week of being submitted by the President to the
Senate. In recent decades, by contrast, it has become the norm for the confirmation
process to take from two to three months.
Other trends and historical phases may be discerned from Tables 1 and 2. Still
other trends, of course, may be revealed by future nominations that Presidents make
and by the actions taken on them by the Senate and its Judiciary Committee.
CRS-1920
Table 1. Nominations to the Supreme Court of the United States, 1789-20052006
Senate committee actions
Nominee
President
Date
received in
Senate a
Public
hearing
date(s)
Final vote
date b
Final vote
Final action by Senate
or President
Date
Final
action c
Days from date received in Senate to:
First
Date
Final
action c
First
public
hearing
date
Committee
final vote
date
Final action
by Senate or
President
John Jay of New York
(Chief Justice – hereafter
,
hereafter C. J.)
Washington
09/24/1789
09/26/1789
Confirmed
—
—
2
John Rutledge
of South Carolina
Washington
09/24/1789
09/26/1789
Confirmed
—
—
2
William Cushing
of Massachusetts
Washington
09/24/1789
09/26/1789
Confirmed
—
—
2
Robert Harrison
of Maryland
Washington
09/24/1789
09/26/1789
Confirmed
(Nominee
declined)
—
—
2
James Wilson
of Pennsylvania
Washington
09/24/1789
09/26/1789
Confirmed
—
—
2
John Blair Jr.
of Virginia
Washington
09/24/1789
09/26/1789
Confirmed
—
—
2
James Iredell
of North Carolina
Washington
02/09/1790
02/10/1790
Confirmed
—
—
1
Nomination predated creation of Judiciary
Committee in 12/10/1816. No record of
other committee referral.
(Nom. date
02/08/1790)
Thomas Johnson
of Maryland
Washington
Recess Appointment, 08/05/1791
11/01/1791
(Nom. date
10/31/1791)
William Paterson
of New Jersey
Washington
02/27/1793
11/07/1791
Confirmed
—
—
6
02/28/1793
Withdrawn
—
—
1
Nomination predated creation of Judiciary
Committee in 12/10/1816. No record of
other committee referral.
CRS-2021
Senate committee actions
Nominee
President
Date
received in
Senate a
William Paterson
of New Jersey
Washington
John Rutledge
of South Carolina
(C. J.)
Washington
William Cushing
of Massachusetts
(C.
J.)
Washington
Samuel Chase
of Maryland
Washington
01/26/1796
Oliver Ellsworth
of of
Connecticut
(C. J.)
Washington
03/03/1796
Bushrod Washington
of Virginia
J. Adams
Public
hearing
date(s)
Final vote
date b
Final vote
03/04/1793
Final action by Senate
or President
Date
Final
action c
03/04/1793
Confirmed
Days from date received in Senate to:
First
hearing
dateDays from date received in Senate to:
Date
Final
action c
First
public
hearing
date
03/04/1793
Confirmed
—
—
0
Committee
final vote
date
Final action
by Senate or
President
—
—
0
Recess Appointment, 07/01/1795
12/10/1795
12/15/1795
Rejected
(10-14)
—
—
5
01/26/1796
01/27/1796
Confirmed
(Nominee
declined)
—
—
1
01/27/1796
Confirmed
—
—
1
03/04/1796
Confirmed
(21-1)
—
—
1
Nomination predated creation of Judiciary
Committee in 12/10/1816. No record of
other committee referral.
Recess Appointment, 09/29/1798
12/19/1798
12/20/1798
Confirmed
—
—
1
12/10/1799
Confirmed
—
—
6
12/19/1800
Confirmed
(Nominee
declined)
—
—
1
Alfred Moore
of North Carolina
J. Adams
12/04/1799
John Jay
of New York (C. J.)
J. Adams
12/18/1800
John Marshall
of Virginia
(C. J.)
J. Adams
01/20/1801
01/27/1801
Confirmed
—
—
7
William Johnson
of South Carolina
Jefferson
03/22/1804
03/24/1804
Confirmed
—
—
2
Nomination predated creation of Judiciary
Committee in 12/10/1816. No record of
other committee referral.
CRS-21
Senate committee actions
Nominee
H. Brockholst Livingston
of New York
President
Date
received in
Senate a
Public
hearing
date(s)
Final vote
date b
Jefferson
Final vote
Final action by Senate
or President
Date
Final
action c
Days from date received in Senate to:
First
hearing
date
Committee
final vote
date
Final action
by Senate or
President
Recess Appointment, 11/10/1806
12/15/180622
Senate committee actions
Nominee
President
Date
received in
Senate a
H. Brockholst
Livingston
of New York
Jefferson
Thomas Todd
of Kentucky
Jefferson
02/28/1807
Levi Lincoln
of Massachusetts
Madison
01/02/1811
Alexander Wolcott
of Connecticut
Madison
02/04/1811
John Quincy Adams
of Massachusetts
Madison
02/21/1811
Joseph Story
of Massachusetts
Madison
11/15/1811
Gabriel Duvall
of Maryland
Madison
11/15/1811
Smith Thompson
of New York
Monroe
Public
hearing
date(s)
Final vote
date b
Final vote
Final action by Senate
or President
Date
Final
action c
Days from date received in Senate to:
First
public
hearing
date
Committee
final vote
date
Final action
by Senate or
President
Recess Appointment, 11/10/1806
12/15/1806
Nomination predated creation of Judiciary
Committee in 12/10/1816. No record of
other committee referral.
No record
of
hearing
Select
Committee,
02/13/1811
Reported
Nomination predated creation of Judiciary
Committee in 12/10/1816. No record of
other committee referral.
12/17/1806
Confirmed
—
—
2
03/02/1807
Confirmed
—
—
2
01/03/1811
Confirmed
(Nominee
declined)
—
—
1
02/13/1811
Rejected
(9-24)
—
9
9
02/22/1811
Confirmed
(Nominee
declined)
—
—
1
11/18/1811
Confirmed
—
—
3
11/18/1811
Confirmed
—
—
3
Recess Appointment, 09/01/1823
12/08/1823
Nomination was not referred to Judiciary
Committee.
12/09/1823
Confirmed
—
—
1
Motion to refer to Judiciary Committee
rejected by Senate, 05/09/1826
(7-25)
05/09/1826
Confirmed
(27-5)
—
—
27
(Nom. date
12/5/1823)
Robert Trimble
of Kentucky
J. Q. Adams
04/12/1826
(Nom. date
04/11/1826)
CRS-2223
Senate committee actions
Nominee
John Crittenden
of Kentucky
President
J. Q. Adams
Date
received in
Senate a
12/18/1828
(Nom. date
12/17/1828)
Public
hearing
date(s)
No record
of
hearing
Final vote
date b
01/26/1829
Final action by Senate
or President
Final
action c
Days from date received in Senate to:
First
public
hearing
date
Committee
final vote
date
Final action
by Senate or
President
Final vote
Date
Reported
with
recommend
ationrecommendation not to
act
02/12/1829
Postponed
(23-17)
—
39
56
John McLean
of Ohio
Jackson
03/06/1829
Nomination was not referred to Judiciary
Committee.
03/07/1829
Confirmed
—
—
1
Henry Baldwin
of Pennsylvania
Jackson
01/05/1830
Nomination was not referred to Judiciary
Committee.
01/05/1830
Confirmed
(41-2)
—
—
0
James M. Wayne
of Georgia
Jackson
01/07/1835
No record
of
hearing
01/09/1835
Confirmed
—
2
2
03/03/1835
Postponed
(24-21)
—
—
47
—
8
78
—
8
78
(Nom. date
01/06/1835)
01/09/1835
Reported
Roger B. Taney
of Maryland
Jackson
01/15/1835
Nomination was not referred to Judiciary
Committee.
Roger B. Taney
of Maryland (C. J.)
Jackson
12/28/1835
No record
of
hearing
01/05/1836
Reported
Motion to proceed,
03/14/1836
(25-19)
03/15/1836
Philip P. Barbour
of Virginia
Jackson
12/28/1835
No record
of
hearing
01/05/1836
Reported
Confirmed
(29-15)
Motion to proceed,
03/15/1836
(25-20)
03/15/1836
Confirmed
(30-11)
CRS-2324
Senate committee actions
Nominee
President
Date
received in
Senate a
Public
hearing
date(s)
Final action by Senate
or President
Final vote
date b
Final vote
Date
Final
action c
Days from date received in Senate to:
First
public
hearing
date
Committee
final vote
date
Final action
by Senate or
President
William Smith
of Alabama
Jackson
03/03/1837
No record
of
hearing
03/08/1837
Reported
03/08/1837
Confirmed
(23-18)
(Nominee
declined)
—
5
5
John Catron
of Tennessee
Jackson
03/03/1837
No record
of
hearing
03/08/1837
Reported
03/08/1837
Confirmed
(28-15)
—
5
5
John McKinley
of Alabama
Van Buren
Recess Appointment, 04/22/1837
09/19/1837
(Nom. date
09/18/1837)
Peter V. Daniel
of Virginia
Van Buren
02/27/1841
No record
of
hearing
09/25/1837
Reported
09/25/1837
Confirmed
—
6
6
Nomination was not referred to Judiciary
Committee.
03/02/1841
Confirmed
(22-5)
—
—
3
No record
of
hearing
01/30/1844
Reported
01/31/1844
Rejected
(21-26)
—
21
22
No record
of
hearing
06/14/1844
Reported
—
93
96
—
9
10
(Nom. date
02/25/1841)
John C. Spencer
of New York
Tyler
01/09/1844
(Nom. date
01/08/1844
Reuben H. Walworth
of New York
Tyler
03/13/1844
Edward King
of Pennsylvania
Tyler
Tyler
03/13/1844
06/05/1844
No record
of
hearing
06/14/1844
Reported
John C. Spencer
of New York
Tyler
06/17/1844
Nomination was not referred to Judiciary
Committee.
Tabled, 06/15/1844
(27-20)
06/17/1844
Withdrawn
06/15/1844
Tabled
(29-18)
—
9
10
06/17/1844
Withdrawn
—
—
0
CRS-24
CRS-25
Senate committee actions
Nominee
President
Date
received in
Senate a
Public
hearing
date(s)
Final vote
date b
Final vote
Final action by Senate
or President
Date
Final
action c
Days from date received in Senate to:
First
Date
Final
action c
First
public
hearing
date
Committee
final vote
date
Final action
by Senate or
President
John C. Spencer
of New York
Tyler
06/17/1844
Nomination was not referred to Judiciary
Committee.
06/17/1844
Withdrawn
—
—
0
Reuben H. Walworth
of New York
Tyler
06/17/1844
Nomination was not referred to Judiciary
Committee.
No record of actionMotion to proceed
objected to, 06/17/1844.
Senate adjourned on same
day, with no record of
further action.
—
—
—
Reuben H. Walworth
of New York
Tyler
12/10/1844
No record
of
hearing
01/21/1845
Tabled,
01/21/1845
—
42
58
—
42
60
—
2
8
(Nom. date
12/04/1844)
Edward King
of Pennsylvania
Tyler
12/10/1844
(Nom. date
12/04/1844)
Samuel Nelson
of New York
Tyler
02/06/1845
(Nom. date
02/04/1845)
01/21/1845
Reported
02/06/1845
No record
of
hearing
01/21/1845
Reported
No record
of
hearing
02/08/1845
Reported
Withdrawn
Tabled,
01/21/1845
02/08/1845
Withdrawn
02/14/1845
Confirmed
John M. Read
of Pennsylvania
Tyler
02/08/1845
No record
of
hearing
02/14/1845
Reported
No record of action
—
6
—
George W. Woodward
of Pennsylvania
Polk
12/23/1845
No record
of
hearing
01/20/1846
Reported
Motion to postpone
rejected, 01/22/1846
(21-28)
—
28
30
—
11
11
01/22/1846
Levi Woodbury
of New Hampshire
Polk
Rejected
(20-29)
Recess Appointment, 09/20/1845
12/23/1845
No record
of
hearing
01/03/1846
Reported
01/03/1846
Confirmed
CRS-25
Senate committee actions
Nominee
President
Robert C. Grier
of Pennsylvania
Polk
Benjamin R. Curtis
of Massachusetts
Fillmore
Date
received in
Senate a
08/03/1846
(Nom. date
12/11/1851)
Fillmore
08/21/1852
(Nom. date
08/16/1852)
George E. Badger
of North Carolina
Fillmore
No record
of
hearing
Final vote
date b
Final vote
Date
Final
action c
08/04/1846
Reported
08/04/1846
Confirmed
Days from date received in Senate to:
First
hearing
date
Committee
final vote
date
Final action
by Senate or
President
—
1
1
Recess Appointment, 09/22/1851
12/12/1851
01/22/1846
Rejected
(20-29)
CRS-26
Senate committee actions
Nominee
Levi Woodbury
of New Hampshire
President
Date
received in
Senate a
Polk
Benjamin R. Curtis of
Massachusetts
Fillmore
Final
action c
Committee
final vote
date
Final action
by Senate or
President
No record
of
hearing
01/03/1846
Reported
01/03/1846
Confirmed
—
11
11
08/03/1846
No record
of
hearing
08/04/1846
Reported
08/04/1846
Confirmed
—
1
1
Recess Appointment, 09/22/1851
08/21/1852
(Nom. date
08/16/1852)
Fillmore
Date
First
public
hearing
date
12/23/1845
(Nom. date
12/11/1851)
Fillmore
Final vote
Days from date received in Senate to:
Recess Appointment, 09/20/1845
12/12/1851
George E. Badger
of North Carolina
Final vote
date b
Polk
Robert C. Grier of
Pennsylvania
Edward A. Bradford
of Louisiana
Public
hearing
date(s)
Final action by Senate
or President
01/10/1853
No record
of
hearing
12/23/1851
Reported
12/23/1851
Confirmed
—
11
11
No record
of
hearing
08/30/1852
Reported
08/31/1852
Tabled
—
9
10
02/11/1853
Postponed
(26-25)
—
—
32
No record
of
hearing
Referred to Judiciary Committee on 02/24/1853. Senate
ordered committee discharged of nomination on same
day; no record of Senate consideration after discharge.
—
—
—
No record
of
hearing
03/22/1853
—
1
1
Nomination was not referred to Judiciary
Committee.
(Nom. date
01/03/1853)
William C. Micou
of of
Louisiana
Fillmore
02/24/1853
(Nom. date
02/14/1853)
John A. Campbell
of Alabama
Pierce
03/21/1853
No record
of
hearing
03/22/1853
Reported
03/22/1853
Confirmed
—
1
1
Nathan Clifford
of Maine
Buchanan
12/09/1857
No record
of
hearing
01/06/1858
Reported
01/12/1858
Confirmed
(26-23)
—
28
34
CRS-26Reported
03/22/1853
Confirmed
CRS-27
Senate committee actions
Nominee
Jeremiah S. Black
of Pennsylvania
President
BuchananPresident
Date
received in
Senate a
02/06/1861
Public
hearing
date(s)
Final vote
date b
Final vote
Final action by Senate
or President
Date
Lincoln
01/22/1862
(Nom. date
01/21/1862)
Samuel F. Miller
of Iowa
Lincoln
David Davis
of Illinois
Lincoln
07/16/1862
(Nom. date
12/01/1862)
Lincoln
Committee
final vote
date
Final action
by Senate or
President
02/21/1861
Motion to
proceed
rejected
(25-26)
—
—
15
No record
of
hearing
01/24/1862
Confirmed
(38-1)
—
2
2
07/16/1862
Confirmed
—
—
0
01/24/1862
Reported
Nomination was not referred to Judiciary
Committee.
Recess Appointment, 10/17/1862
12/03/1862
Stephen J. Field
of California
First
hearing
date
Nomination was not referred to Judiciary
Committee.
(Nom. date
02/05/1861)
Noah H. Swayne
of Ohio
Final
action c
Days from date received in Senate to:action by Senate
or President
Days from date received in Senate to:
First
public
hearing
date
Committee
final vote
date
Final action
by Senate or
President
Final vote
date b
Final vote
Date
01/06/1858
Reported
01/12/1858
Confirmed
(26-23)
—
28
34
Final
action c
Nathan Clifford
of Maine
Buchanan
12/09/1857
No record
of
hearing
Jeremiah S. Black
of Pennsylvania
Buchanan
02/06/1861
Nomination was not referred to Judiciary
Committee.
02/21/1861
Motion to
proceed
rejected
(25-26)
—
—
15
No record
of
hearing
01/24/1862
Confirmed
(38-1)
—
2
2
07/16/1862
Confirmed
—
—
0
(Nom. date
02/05/1861)
Noah H. Swayne
of Ohio
Lincoln
01/22/1862
(Nom. date
01/21/1862)
Samuel F. Miller
of Iowa
Lincoln
David Davis
of Illinois
Lincoln
07/16/1862
(Nom. date
12/01/1862)
Lincoln
Reported
Nomination was not referred to Judiciary
Committee.
Recess Appointment, 10/17/1862
12/03/1862
Stephen J. Field
of California
01/24/1862
03/07/1863
(Nom. date
03/06/1863
No record
of
hearing
12/05/1862
Reported
12/08/1862
Confirmed
—
2
5
No record
of
hearing
03/09/1863
Reported
03/10/1863
Confirmed
—
2
3
12/06/1864
Confirmed
—
—
0
—
—
—
—
7
50
Salmon P. Chase
of Ohio (C. J.)
Lincoln
12/06/1864
Nomination was not referred to Judiciary
Committee.
Henry Stanbery
of Ohio
A. Johnson
04/16/1866
No record
of
hearing
Ebenezer R. Hoar
of Massachusetts
Grant
12/15/1869
No record
of
hearing
(Nom. date
12/14/1869)
Referred to Judiciary Committee on 04/16/1866. No
record of committee vote, and no record of Senate
action after referral.
12/22/1869
Reported
adversely
02/03/1870
Rejected
(24-33)
CRS-27
Final action by Senate
or President
Senate committee actions
Nominee
President
Date
received in
Senate a
Public
hearing
date(s)
Final vote
date b
Final vote
Date
CRS-28
Senate committee actions
Nominee
Ebenezer R. Hoar
of Massachusetts
President
Grant
Date
received in
Senate a
12/15/1869
(Nom. date
12/14/1869)
Public
hearing
date(s)
No record
of
hearing
Final vote
date b
12/22/1869
Final action by Senate
or President
Final
action c
Days from date received in Senate to:
First
public
hearing
date
Committee
final vote
date
Final action
by Senate or
President
Final vote
Date
Reported
adversely
02/03/1870
Rejected
(24-33)
—
7
50
Edwin M. Stanton
of Pennsylvania
Grant
12/20/1869
Nomination was not referred to Judiciary
Committee
12/20/1869
Confirmed
(46-11)
(Nominee
died before
assuming
office)
—
—
0
William Strong
of Pennsylvania
Grant
02/08/1870
No record
of
hearing
02/14/1870
Reported
favorably
02/18/1870
Confirmed
—
6
10
No record
of
hearing
02/14/1870
Reported
favorably
—
6
41
No record
of
hearing
12/11/1872
Reported
favorably
—
5
5
No record
of hearing
12/11/1873
Reported
favorably
—
9
37
Closed
hearings d
12/16/1873
12/17/1873
—
—
01/08/1874
Withdrawn—
5
5
(Nom. date
02/07/1870)
Joseph P. Bradley
of New JeresyJersey
Grant
02/08/1870
(Nom. date
02/07/1870)
Ward Hunt
of New York
Grant
12/06/1872
(Nom. date
12/03/1872)
George H. Williams
of Oregon (C. J.)
Grant
12/02/1873
(Nom. date
12/01/1873)
Postponed,
03/02/1870
(31-26)
12/11/1872
Confirmed
Recommitted,
12/15/1873Postponed,
03/02/1870
(31-26)
Motion to postpone
rejected, 03/02/1870
(23-28)
Ward Hunt
of New York
Grant
12/06/1872
(Nom. date
12/03/1872)
No record
of
hearing
12/11/1872
Reported
favorably
03/21/1870
Confirmed
(46-9)
12/11/1872
Confirmed
CRS-29
Final action by Senate
or President
Senate committee actions
Nominee
George H. Williams
of Oregon
(C. J.)
President
Grant
Date
received in
Senate a
12/02/1873
(Nom. date
12/01/1873)
Public
hearing
date(s)
Final vote
date b
Final vote
Date
Final
action c
No record
of hearing
12/11/1873
Reported
favorably
Recommitted,
12/15/1873
Closed
hearings d
12/16/1873
12/17/1873
—
—
01/08/1874
Withdrawn
Days from date received in Senate to:
First
public
hearing
date
Committee
final vote
date
Final action
by Senate or
President
—
9
37
Caleb Cushing
of Massachusetts
(C. J.)
Grant
01/09/1874
No record
of
hearing
01/09/1874
Reported
favorably
01/14/1874
Withdrawn
—
0
5
Morrison R. Waite
of Ohio (C. J.)
Grant
01/19/1874
No record
of
hearing
01/20/1874
Reported
favorably
01/21/1874
Confirmed
(63-0)
—
1
2
John Marshall Harlan
of Kentucky
Hayes
10/17/1877
No record
of
hearing
11/26/1877
Reported
favorably
11/29/1877
Confirmed
—
40
43
CRS-28
Senate committee actions
Nominee
William B. Woods
of Georgia
President
Hayes
Date
received in
Senate a
12/15/1880
Public
hearing
date(s)
No record
of
hearing
Final vote
date b
12/20/1880
Final action by Senate
or President
Final vote
Date
William B. Woods
of Georgia
Hayes
12/15/1880
No record
of
hearing
12/20/1880
Reported
favorably
12/21/1880
Final
action c
Confirmed
(39-8)
Days from date received in Senate to:
First
hearing
date
Committee
final vote
date
Final action
by Senate or
President
Confirmed
(39-8)
—
5
6
—
19
—
—
53
55
Tabled motion to
reconsider, 12/22/1880
(36-3)
Stanley Matthews
of Ohio
Stanley Matthews
of Ohio
Hayes
Garfield
01/26/1881
03/18/1881
(Nom. date
03/14/1881)
No record
of
hearing
No record
of
hearing
Considered on 02/07/1881
No record of action
02/14/1881
Postponed
No record
of
hearing, 02/07/1881
02/14/1881
Postponed
05/09/1881
Reported
adversely
(6-1)
No record of action
05/12/1881
Confirmed
(24-23)
—
53
55
CRS-30
Senate committee actions
Nominee
President
Date
received in
Senate a
Public
hearing
date(s)
Final vote
date b
Final action by Senate
or President
Final vote
Date
Final
action c
Days from date received in Senate to:
First
public
hearing
date
Committee
final vote
date
Final action
by Senate or
President
Horace Gray
of Massachusetts
Arthur
12/19/1881
No record
of
hearing
12/20/1881
Reported
favorably
12/20/1881
Confirmed
(51-5)
—
1
1
Roscoe Conkling
of New York
Arthur
02/24/1882
No record
of
hearing
03/02/1882
Reported
favorably
03/02/1882
Confirmed
(39-12)
(Nominee
declined)
—
6
6
Samuel Blatchford
of New York
Arthur
03/13/1882
No record
of
hearing
03/22/1882
Reported
favorably
03/22/1882
Confirmed
—
9
9
Lucius Q. C. Lamar
of Mississippi
Cleveland
12/12/1887
No record
of
hearing
01/10/1888
Reported
adversely
(5-4)
01/16/1888
Confirmed
(32-28)
—
29
35
(Nom. date
12/06/1887)
CRS-29
Senate committee actions
Nominee
Melville W. Fuller
of Illinois (C. J.)
President
Cleveland
Date
received in
Senate a
05/02/1888
(Nom. date
04/30/1888)
David J. Brewer
of Kansas
Harrison
12/04/1889
Public
hearing
date(s)
Final vote
date b
Final action by Senate
or President
Final vote
Date
07/20/1888
No record
of
hearing
07/02/1888
Reported
without
recommendation
No record
of
hearing
12/16/1889
Reported
favorably
Final
action c
Confirmed
(41-20)
Motion to postpone
rejected, 12/18/1889
(15-54)
Days from date received in Senate to:
First
hearing
date
Committee
final vote
date
Final action
by Senate or
President
—
61
79
—
12
14
Motion to postpone
rejected, 12/18/1889
(25-45)
12/18/1889
Confirmed
(53-11)No record
of
hearing
07/02/1888
Reported
without
recommendation
07/20/1888
Confirmed
(41-20)
—
61
79
No record
of
hearing
12/16/1889
Reported
favorably
—
12
14
(Nom. date
12/06/1887)
Melville W. Fuller
of Illinois
(C. J.)
Cleveland
David J. Brewer
of Kansas
Harrison
05/02/1888
(Nom. date
04/30/1888)
12/04/1889
Motion to postpone
rejected, 12/18/1889
(15-54)
Motion to postpone
rejected, 12/18/1889
(25-45)
12/18/1889
Confirmed
(53-11)
CRS-31
Senate committee actions
Nominee
President
Date
received in
Senate a
Public
hearing
date(s)
Final vote
date b
Final action by Senate
or President
Days from date received in Senate to:
Final vote
Date
Final
action c
First
public
hearing
date
Committee
final vote
date
Final action
by Senate or
President
Henry B. Brown
of Michigan
Harrison
12/23/1890
No record
of
hearing
12/29/1890
Reported
favorably
12/29/1890
Confirmed
—
6
6
George Shiras Jr.
of Pennsylvania
Harrison
07/19/1892
No record
of
hearing
07/25/1892
Reported
without
recommendation
07/26/1892
Confirmed
—
6
7
Howell E. Jackson
of Tennessee
Harrison
02/02/1893
No record
of
hearing
02/13/1893
Reported
favorably
02/18/1893
Confirmed
—
11
16
William B.
Hornblower
of New York
Cleveland
09/19/1893
No record
of
hearing
Considered on, 09/25/1893
and 10/25 & 30/1893
—
—
—
William B.
/1893
—
—
—
No record of action
CRS-30
Senate committee actions
Nominee
President
Date
received in
Senate a
Public
hearing
date(s)
Final vote
date b
Final action by Senate
or President
Final vote
Date
Final
action c
Days from date received in Senate to:
First
hearing
date
Committee
final vote
date
Final action
by Senate or
President
William B. Hornblower
of New York
Cleveland
12/06/1893
No record
of
hearing
01/08/1894
Reported
adversely
01/15/1894
Rejected
(24-30)
—
33
40
Considered, 12/11, 14 &
18/1893
01/08/1894
Wheeler H. Peckham
of New York
Cleveland
01/22/1894
No record
of
hearing
Edward D. White
of Louisiana
Cleveland
02/19/1894
01/15/1894
Rejected
(24-30)
—
33
4002/12/1894
Reported
without
recommendation
02/16/1894
Rejected
(32-41)
—
21
25
Edward D. White
of Louisiana
Cleveland
02/19/1894
Nomination was not referred to Judiciary
Committee
02/19/1894
Confirmed
—
—
002/19/1894
Confirmed
—
—
0
Reported
adversely
On question of reporting
favorably, committee vote
divided, 02/12/1894
(5-5)
02/12/1894
No record of action
Reported
without
recommendation
Nomination was not referred to Judiciary
Committee
CRS-32
Senate committee actions
Nominee
President
Date
received in
Senate a
Public
hearing
date(s)
Final vote
date b
Final action by Senate
or President
Days from date received in Senate to:
Final vote
Date
Final
action c
First
public
hearing
date
Committee
final vote
date
Final action
by Senate or
President
Rufus W. Peckham
of New York
Cleveland
12/03/1895
No record
of
hearing
12/09/1895
Reported
favorably
12/09/1895
Confirmed
—
6
6
Joseph McKenna
of California
McKinley
12/16/1897
No record
of
hearing
01/13/1898
Reported
favorably
01/21/1898
Confirmed
—
28
36
Oliver Wendell
Holmes
of Massachusetts
T. Roosevelt
12/02/1902
No record
of
hearing
12/04/1902
Reported
favorably
12/04/1902
Confirmed
—
2
2
William R. Day
of Ohio
T. Roosevelt
02/19/1903
No record
of
hearing
02/23/1903
Reported
favorably
02/23/1903
Confirmed
—
4
4
CRS-31
Senate committee actions
Nominee
President
Date
received in
Senate a
Public
hearing
date(s)
Final vote
date b
Final action by Senate
or President
Final vote
Date
Final
action c
Days from date received in Senate to:
First
hearing
date
Committee
final vote
date
Final action
by Senate or
President
William H. Moody
of Massachusetts
T. Roosevelt
12/03/1906
No record
of
hearing
12/10/1906
Reported
favorably
12/12/1906
Confirmed
—
7
9
Horace H. Lurton
of Tennessee
Taft
12/13/1909
No record
of
hearing
12/16/1909
Reported
favorably
12/20/1909
Confirmed
—
3
7
Charles Evans Hughes
of New York
Taft
04/25/1910
No record
of
hearing
05/02/1910
Reported
favorably
05/02/1910
Confirmed
—
7
7
Edward D. White
of Louisiana (C. J.)
Taft
12/12/1910
Nomination was not referred to Judiciary
Committee.
12/12/1910
Confirmed
—
—
0
Willis Van Devanter
of Wyoming
Taft
12/12/1910
No record
of
hearing
12/15/1910
Reported
favorably
12/15/1910
Confirmed
—
3
3Confirmed
—
3
3
12/15/1910
Reported
favorably
CRS-33
Senate committee actions
Nominee
President
Date
received in
Senate a
Public
hearing
date(s)
Final vote
date b
Final action by Senate
or President
Days from date received in Senate to:
Final vote
Date
Final
action c
First
public
hearing
date
Committee
final vote
date
Final action
by Senate or
President
Joseph R. Lamar
of Georgia
Taft
12/12/1910
No record
of
hearing
12/15/1910
Reported
favorably
12/15/1910
Confirmed
—
3
3
Mahlon Pitney
of New Jersey
Taft
02/19/1912
No record
of
hearing
03/04/1912
Reported
favorably
03/13/1912
Confirmed
(50-26)
—
14
23
James C. McReynolds
of Tennessee
Wilson
08/19/1914
No record
of
hearing
08/24/1914
Reported
favorably
08/29/1914
Confirmed
(44-6)
—
5
10
CRS-32
Senate committee actions
Nominee
Louis D. Brandeis
of Massachusetts
President
Wilson
Date
received in
Senate a
01/28/1916
Public
hearing
date(s)
Wilson
01/28/1916
02/09/1916
02/10/1916
02/15/1916
02/16/1916
02/17/1916
02/18/1916
02/24/1916
02/25/1916
02/26/1916
02/29/1916
03/01/1916
Final vote
date b
Final action by Senate
or President
Final
action c
Days from date received in Senate to:
First
hearing
date
Committee
final vote
date
Final action
by Senate or
President
Final vote
Date
05/24/1916
Reported
favorably
(10-8)
06/01/1916
Confirmed
(47-22)
12
117
125
07/24/1916
03/02/1916
03/03/1916
03/04/1916
03/06/1916
03/07/1916
03/08/1916
03/14/1916
03/15/1916
05/24/1916
Reported
favorably
(10-8)
06/01/1916
Confirmed
(47-22)
12
117
125
John H. Clarke
of Ohio
Wilson
07/14/1916
No record
of
hearing
07/24/1916
Reported
favorably
07/24/1916
Confirmed
—
10
10
CRS-34
Senate committee actions
Nominee
President
Date
received in
Senate a
Public
hearing
date(s)
Final vote
date b
Final vote
Final action by Senate
or President
Date
Final
action c
Days from date received in Senate to:
First
public
hearing
date
Committee
final vote
date
Final action
by Senate or
President
William Howard Taft
of Connecticut (C. J.)
Harding
06/30/1921
Nomination was not referred to Judiciary
Committee.
06/30/1921
Confirmed
(60-4) e
—
—
0
George Sutherland
of Utah
Harding
09/05/1922
Nomination was not referred to Judiciary
Committee.
09/05/1922
Confirmed
—
—
0
Pierce Butler
of Minnesota
Harding
11/23/1922
No record
of
hearing
11/28/1922
Reported
favorably
Placed on Placed on the Executive
Calendar on, 11/28/1922,
with no record of further
action
—
5
—
(Nom. date
11/22/1922)
11/28/1922
Reported
favorably
CRS-33
Senate committee actions
Nominee
Pierce Butler
of Minnesota
President
Harding
Date
received in
Senate a
12/05/1922
Public
hearing
date(s)
No record
of
hearingClosed
hearings
12/09/1922
12/13/1922
12/18/1922
Reported
favorably
Motion to recommit
defeated, 12/21/1922
(7-63)
—
13
16
—
5
5
—
28
31
7
10
(Nom. date
11/22/1922)
Pierce Butler
of Minnesota
Harding
12/05/1922
Edward T. Sanford
of Tennessee
Harding
01/24/1923
No record
of
hearing
Harlan F. Stone
of New York
Coolidge
01/05/1925
Closed
hearing
01/12/1925
f
Charles Evans Hughes
of New York (C. J.)
Hoover
02/03/1930
Final vote
date b
12/18/1922
01/29/1923
Final vote
Reported
favorably
Reported
favorably
Reported favorably
01/2101/29/1923
Reported
favorably
Reported favorably
01/21/1925
12/21/1922
Confirmed
(61-8)
01/29/1923
Confirmed
Recommitted
01/26/1925
01/28/1925
(after
01/26/1925
recomt’l) f
02/02/1925
Reported
favorably
No record
of
hearing
02/10/1930
Reported
favorably
(10-2)
Final action by Senate
or President
Date
Final
action c
Motion to recommit
defeated, 12/21/1922
(7-63)
12/21/1922
Confirmed
(61-8)
01/29/1923
Confirmed
Recommitted
01/26/1925
02/05/1925
Confirmed
(71-6)
Motion to recommit
rejected, 02/13/1930
(31-49)
02/13/1930
Confirmed
(52-26)
Days from date received in Senate to:
First
02/05/1925
Confirmed
(71-6)
23
No hearing
held
02/10/1930
Reported
favorably
(10-2)
Motion to recommit
rejected, 02/13/1930 (3149)
—
02/13/1930
Confirmed
(52-26)
CRS-35
Senate committee actions
Nominee
President
Date
received in
Senate a
Public
hearing
date(s)
Final vote
date b
Final action by Senate
or President
Final vote
Date
Final
action c
Days from date received in Senate to:
First
public
hearing
date
Committee
final vote
date
Final action
by Senate or
President
—
13
16
—
5
5
—
28
31
—
7
10
23
John J. Parker
of North Carolina
Hoover
03/21/1930
04/05/1930
04/1721/1930
Reported
adversely
(10-6)
05/07/1930
Rejected
(39-41)
15
2731
47
Owen J. Roberts
of Pennsylvania
Hoover
05/09/1930
No record
of
hearinghearing
held
05/19/1930
Reported
favorably
05/20/1930
Confirmed
—
10
11
CRS-34
Senate committee actions
Nominee
President
Date
received in
Senate a
Public
hearing
date(s)
Final vote
date b
Final action by Senate
or President
Final vote
Date
Final
action c
02/24/1932
Confirmed
Benjamin N. Cardozo
of New York
Hoover
02/15/1932
02/19/1932
02/23/1932
Reported
favorably
02/24/1932
Confirmed
4
8
9
Hugo L. Black
of Alabama
F. Roosevelt
08/12/1937
No record
of
hearinghearing
held
08/16/1937
Reported
favorably
(13-4)
—
4
5
Motion to recommit
rejected, 08/17/1937
(15-66)
08/17/1937
Confirmed
(63-16)
Days from date received in Senate to:
First
hearing
date
Committee
final vote
date
Final action
by Senate or
President
4
8
9
—
4
5
Stanley F. Reed
of Kentucky
F. Roosevelt
01/15/1938
01/20/1938
01/24/1938
Reported
favorably
01/25/1938
Confirmed
5
9
10
Felix Frankfurter
of Massachusetts
F. Roosevelt
01/05/1939
01/07/1939
01/10/1939
01/11/1939
01/12/1939
01/16/1939
Reported
favorably
01/17/1939
Confirmed
25
11
12
William O. Douglas
of Connecticut
F. Roosevelt
03/20/1939
03/24/1939
03/27/1939
Reported
favorably
04/04/1939
Confirmed
(62-4)
4
7
15
Frank Murphy
of Michigan
F. Roosevelt
01/04/1940
No record
of
hearing01/11/1940
01/15/1940
Reported
favorably
01/16/1940
Confirmed
—8
11
12
Harlan F. Stone
of New York (C. J.)
F. Roosevelt
06/12/1941
06/21/1941
06/23/1941
Reported
favorably
06/27/1941
Confirmed
9
11
15
James F. Byrnes
of South Carolina
F. Roosevelt
06/12/1941
Nomination was not referred to Judiciary
Committee.
06/12/1941
Confirmed
—
—
0
CRS-36
Senate committee actions
Nominee
President
Date
received in
Senate a
Public
hearing
date(s)
Final vote
date b
Final action by Senate
or President
Days from date received in Senate to:
Final vote
Date
Final
action c
First
public
hearing
date
Committee
final vote
date
Final action
by Senate or
President
Robert H. Jackson
of New York
F. Roosevelt
06/12/1941
06/21/1941
06/231941
06/27/1941
06/30/1941
06/30/1941
Reported
favorably
07/07/1941
Confirmed
9
18
25
Wiley B. Rutledge
of Iowa
F. Roosevelt
01/11/1943
01/22/1943
02/01/1943
Reported
favorably
02/08/1943
Confirmed
11
21
28
CRS-35
Senate committee actions
Nominee
President
Date
received in
Senate a
Public
hearing
date(s)
Final vote
date b
Final action by Senate
or President
Final vote
Date
Final
action c
Days from date received in Senate to:
First
hearing
date
Committee
final vote
date
Final action
by Senate or
President
Harold H. Burton
of Ohio
Truman
09/18/1945
No record
of
hearinghearing
held
09/19/1945
Reported
favorably
09/19/1945
Confirmed
—
1
1
Fred M. Vinson
of of
Kentucky (C. J.)
Truman
06/06/1946
06/14/1946
06/19/1946
Reported
favorably
06/20/1946
Confirmed
8
13
14
Tom C. Clark
of Texas
Truman
08/02/1949
08/09/1949
08/10/1949
08/11/1949
08/12/1949
Reported
favorably
(9-2)
08/18/1949
Confirmed
(73-8)
7
10
16
Sherman Minton
of Indiana
Truman
09/15/1949
09/27/1949
10/03/1949
Reported
favorably
(9-2)
12
18
19
22
44
49
—
—
—
45
59
65
43
49
64
Motion to
recommit rejected,
10/04/1949
(21-45)
10/04/1949
Earl Warren
of California (C. J.)
Eisenhower
Confirmed
(48-16)
Recess Appointment, 10/02/1953
01/11/1954
02/02/1954
02/19/1954
John M. Harlan II
of New York
Eisenhower
11/09/1954
No record
of
hearinghearing
held
John M. Harlan II
of New York
Eisenhower
01/10/1955
02/25/1955
g
William J. Brennan Jr.
of New Jersey
Eisenhower
02/24/1954
Reported
favorably
(12-3)
03/01/1954
Confirmed
Referred to Judiciary Committee on 11/09/1954. No
record of committee vote or Senate action.
03/10/1955
Reported
favorably
(10-4)
03/16/1955
Confirmed
(71-11)
Recess Appointment, 10/15/1956
01/14/1957
02/26/1957
02/27/1957
03/04/1957
Reported
favorably
03/19/1957
Confirmed
CRS-36
CRS-37
Senate committee actions
Nominee
President
Charles E. Whittaker
of Missouri
Eisenhower
Potter Stewart
of Ohio
EisenhowerWilliam J. Brennan Jr.
of New Jersey
President
Date
received in
Senate a
03/02/1957
Public
hearing
date(s)
Final vote
date b
03/18/1957
03/18/1957Eisenhower
Charles E. Whittaker
of Missouri
Eisenhower
Potter Stewart
of Ohio
Eisenhower
Final vote
Final action by Senate
or President
Final vote
Date
Final
action c
Reported
favorably
03/19/1957
Confirmed
Days from date received in Senate to:
First
public
hearing
date
Committee
final vote
date
Final action
by Senate or
President
Recess Appointment, 10/15/1956
01/14/1957
02/26/1957
02/27/1957
03/04/1957
Reported
favorably
03/19/1957
Confirmed
43
49
64
03/02/1957
03/18/1957
03/18/1957
Reported
favorably
03/19/1957
Confirmed
16
16
17
Recess Appointment, 10/14/1958
01/17/1959
04/09/1959
04/14/1959
04/20/1959
Reported
favorably
(12-3)
05/05/1959
Confirmed
(70-17)
82
93
108
Byron R. White
of Colorado
Kennedy
04/03/1962
04/11/1962
04/11/1962
Reported
favorably
04/11/1962
Confirmed
8
8
8
Arthur J. Goldberg
of Illinois
Kennedy
08/31/1962
09/11/1962
09/13/1962
09/25/1962
Reported
favorably
09/25/1962
Confirmed
11
25
25
Abe Fortas
of Tennessee
L. Johnson
07/28/1965
08/05/1965
08/10/1965
Reported
favorably
08/11/1965
Confirmed
8
13
14
Thurgood Marshall
of New York
L. Johnson
06/13/1967
07/13/1967
07/14/1967
07/18/1967
07/19/1967
07/24/1967
08/03/1967
Reported
favorably
(11-5)
08/30/1967
Confirmed
(69-11)
30
51
78
CRS-38
Senate committee actions
Nominee
Abe Fortas
of Tennessee (C. J.)
President
L. Johnson
06/26/1968
Date
received in
Senate a
06/26/1968
Public
hearing
date(s)
07/11/1968
07/12/1968
07/16/1968
07/17/1968
07/18/1968
07/19/1968
07/20/1968
07/22/1968
07/23/1968
09/13/1968
09/16/1968
Final vote
date b
09/17/1968
Final vote
Reported
favorably
(11-6)
Referred to Judiciary
Committee, 06/26/1968.
No committee vote taken.
Final action by Senate
or President
Date
Final
action c
Cloture motion rejected,
10/01/1968
(45-43) h
Days from date received in Senate to:
First
public
Reported
favorably
(11-6)
Cloture motion rejected,
10/01/1968
(45-43) h
15
83
100
10/04/1968
Withdrawn
CRS-37
Senate committee actions
Nominee
President
Date
received in
Senate a
Public
hearing
date(s)
Final vote
date b
Final vote
Final action by Senate
or President
Date
Final
action c
Days from date received in Senate to:
First
hearing
date
Committee
final vote
date
Final action
by Senate or
President
15
83
100
10/04/1968
Withdrawn
10/04/1968
Withdrawn
15
—
100
Homer Thornberry
of Texas
L. Johnson
06/26/1968
07/11/1968
07/12/1968
07/16/1968
07/17/1968
07/18/1968
07/19/1968
07/20/1968
07/22/1968
07/23/1968
09/13/1968
09/16/1968
Referred to Judiciary
Committee on 06/26/1968.
No committee vote taken.
10/04/1968
Withdrawn
15
—
100
Warren E. Burger
of Virginia
(C. J.)
Nixon
05/23/1969
06/03/1969
06/03/1969
Reported
favorably
06/09/1969
Confirmed
(74-3)
11
11
17
Clement F.
Haynsworth Jr.
of of
South Carolina
Nixon
09/0308/21/1969
09/16/1969
09/17/1969
09/18/1969
09/19/1969
09/23/1969
09/24/1969
09/25/1969
092609/26/1969
10/09/1969
Reported
favorably
(10-7)
11/21/1969
Rejected
(45-55)
13
36
79
George Harrold Carswell
26
49
92
CRS-39
Senate committee actions
Nominee
President
Date
received in
Senate a
Public
hearing
date(s)
Final vote
date b
Final action by Senate
or President
Final vote
Date
Final
action c
Days from date received in Senate to:
First
public
hearing
date
Committee
final vote
date
Final action
by Senate or
President
George Harrold
Carswell of Florida
Nixon
01/19/1970
01/27/1970
01/28/1970
01/29/1970
02/02/1970
02/03/1970
02/16/1970
Reported
favorably
(13-4)
04/08/1970
Rejected
(45-51)
8
28
79
Harry A. Blackmun
of Minnesota
Nixon
04/15/1970
04/29/1970
05/06/1970
Reported
favorably
(17-0)
05/12/1970
Confirmed
(94-0)
14
21
27
CRS-38
Senate committee actions
Nominee
President
Date
received in
Senate a
Public
hearing
date(s)
Final vote
date b
Lewis F. Powell Jr.
of Virginia
Nixon
10/22/1971
11/03/1971
11/04/1971
11/08/1971
11/09/1971
11/10/1971
11/23/1971
Reported
favorably
(16-0)
12/06/1971
Confirmed
(89-1)
12
32
45
William H. Rehnquist
of Arizona
Nixon
10/22/1971
11/03/1971
11/04/1971
11/08/1971
11/09/1971
11/10/1971
11/23/1971
Reported
favorably
(12-4)
12/01/1975
(Nom. date
11/28/1975)
32
45
Cloture motion rejected,
12/10/1971
(52-42) i
12
32
49
12/10/1971
Confirmed
(68-26)
12/11/1975
Reported
favorably
(13-0)
12/17/1975
Confirmed
(98-0)
7
10
16
09/21/1981
Confirmed
(99-0)
21
27
33
39
55
89
42
51
85
08/19/1981
09/09/1981
09/10/1981
09/11/1981
09/15/1981
Reported
favorably
(17-1)
William H. Rehnquist
of Arizona (C. J.)
Reagan
06/20/1986
07/29/1986
07/30/1986
07/31/1986
08/01/1986
08/14/1986
Reported
favorably
(13-5)
06/24/1986
12
12/08/1975
12/09/1975
12/10/1975
Reagan
Reagan
Confirmed
(89-1)
Final
action c
Motion to postpone until
01/18/1972 rejected,
12/10/1971
(22-70)
Sandra Day O’Connor
of Arizona
Antonin Scalia
of Virginia
Final action
by Senate or
President
12/06/1971
10/22/1971
Ford
Committee
final vote
date
Date
Nixon
Days from date received in Senate to:
First
hearing
date
Final vote
Lewis F. Powell Jr.
of Virginia
John Paul Stevens
of Illinois
Final action by Senate
or President
08/05/1986
08/06/1986
08/14/1986
Reported
favorably
(18-0)
Cloture invoked,
09/17/1986
(68-31) j
09/17/1986
Confirmed
(65-33)
09/17/1986
Confirmed
(98-0)
CRS-39
Senate committee actions
Nominee
Robert H. Bork
of District of Columbia
President
Reagan
Date
received in
Senate a
07/07/1987
Public
hearing
date(s)
Cloture motion rejected,
12/10/1971
(52-42) i
12
32
49
John Paul Stevens
of Illinois
Ford
12/01/1975
(Nom. date
11/28/1975)
Sandra Day O’Connor
of Arizona
Reagan
08/19/1981
Motion to postpone until
01/18/1972 rejected,
12/10/1971
(22-70)
12/10/1971
Confirmed
(68-26)
12/08/1975
12/09/1975
12/10/1975
12/11/1975
Reported
favorably
(13-0)
12/17/1975
Confirmed
(98-0)
7
10
16
09/09/1981
09/10/1981
09/11/1981
09/15/1981
Reported
favorably
(17-1)
09/21/1981
Confirmed
(99-0)
21
27
33
CRS-40
Senate committee actions
Nominee
William H. Rehnquist
of Arizona (C. J.)
President
Reagan
Date
received in
Senate a
06/20/1986
Public
hearing
date(s)
07/29/1986
07/30/1986
07/31/1986
08/01/1986
Final vote
date b
08/14/1986
Final vote
Reported
favorably
(13-5)
Final action by Senate
or President
Date
Final
action c
Cloture invoked,
09/17/1986
(68-31) j
09/17/1986
Confirmed
(65-33)
Days from date received in Senate to:
First
public
hearing
date
Committee
final vote
date
Final action
by Senate or
President
39
55
89
Antonin Scalia
of Virginia
Reagan
06/24/1986
08/05/1986
08/06/1986
08/14/1986
Reported
favorably
(18-0)
09/17/1986
Confirmed
(98-0)
42
51
85
Robert H. Bork
of District of
Columbia
Reagan
07/07/1987
09/15/1987
09/16/1987
09/17/1987
09/18/1987
09/19/1987
09/21/1987
09/22/1987
09/23/1987
09/25/1987
09/28/1987
09/29/1987
09/30/1987
Final vote
date b
Final vote
Motion to report favorably
rejected, 10/06/1987
(5-9)
10/06/1987
Reported
unfavorably
(9-5)
Final action by Senate
or President
Date
Final
action c
Days from date received in Senate to:
First
hearing
date
Committee
final vote
date
Final action
by Senate or
President
10/23/1987
Rejected
(42-58)
70
91
108
23/1987
Rejected
(42-58)
70
91
108
10/06/1987
Reported
unfavorably
(9-5)
On 10/29/1987, following the Senate’s rejection of the nomination of Robert H. Bork, President Ronald Reagan announced his intention to nominate Douglas H. Ginsburg of the
District of Columbia to be Associate Justice. Ginsburg, however, withdrew his name from consideration on 11/07/1987, before an official nomination had been made.
Anthony M. Kennedy
of California
Reagan
11/30/1987
12/14/1987
12/15/1987
12/16/1987
01/27/1988
Reported
favorably
(14-0)
02/03/1988
Confirmed
(97-0)
14
58
65
David H. Souter
of New Hampshire
G. H. W.
Bush
07/25/1990
09/13/1990
09/14/1990
09/17/1990
09/18/1990
09/19/1990
09/27/1990
Reported
favorably
(13-1)
10/02/1990
Confirmed
(90-9)
50
64
69
CRS-41
Senate committee actions
Nominee
Clarence Thomas
of Virginia
President
G. H. W.
Bush
07/08/1991
Date
received in
Senate a
07/08/1991
Public
hearing
date(s)
09/10/1991
09/11/1991
09/12/1991
09/13/1991
09/16/1991
09/17/1991
09/19/1991
09/20/1991
10/11/1991
10/12/1991
10/13/1991
Final vote
date b
Final vote
Final action by Senate
or President
Date
Final
action c
Motion to report favorably
failed, 09/27/1991
(7-7) k
UC agreement reached,
10/08/1991, to
reschedule vote on
confirmation from
reschedule
vote on confirmation
from 10/08/1991 to
10/15/991,
to allow for additional
hearings
64
81
99
09/27/1991
10/15 to allow for
additional hearings
09/27/1991
Reported
without
recommendation
(13-1)
10/15/1991
Confirmed
(52-48)Confirmed
(52-48)
CRS-40
Senate committee actions
Nominee
President
Date
received in
Senate a
Public
hearing
date(s)
Final vote
date b
Final action by Senate
or President
Final vote
Date
Final
action c
Days from date received in Senate to:
First
public
hearing
date
Committee
final vote
date
Final action
by Senate or
President
64
81
99
Ruth Bader Ginsburg
of New York
Clinton
06/22/1993
07/20/1993
07/21/1993
07/22/1993
07/23/1993
07/29/1993
Reported
favorably
(18-0)
08/03/1993
Confirmed
(96-3)
28
37
42
Stephen G. Breyer
of Massachusetts
Clinton
05/17/1994
07/12/1994
07/13/1994
07/14/1994
07/15/1994
07/19/1994
Reported
favorably
(18-0)
07/29/1994
Confirmed
(87-9)
56
63
73
John G. Roberts Jr.
of Maryland
G. W. Bush
07/29/2005
09/06/2005
Withdrawn
—
—
39
John G. Roberts Jr.
of Maryland (C. J.)
G. W. Bush
09/06/2005
09/29/2005
Confirmed
(78-22)
6
16
23
Harriet E. Miers
of Texas
G. W. Bush
10/07/2005
Referred to Judiciary Committee on
10/07/2005. No hearing held and no
committee vote taken.
10/28/2005
Withdrawn
—
—
21
Samuel A. Alito Jr.
G. W. Bush
11/10/2005
Referred to Judiciary Committee on
11/10/2005. Hearings scheduled to begin
on 01/09/2006.
Median number of days from date received in Senate, 1789-2005
13
11
10
Median number of days from date received in Senate, 1789-1966
11
9
7
Median number of days from date received in Senate, 1967-2005
15
37
67
Referred to Judiciary Committee on
07/29/2005. No hearing held and no
committee vote taken.
09/12/2005
09/13/2005
09/14/2005
09/15/2005
09/22/2005
Reported
favorably
(13-510/28/2005
Withdrawn
—
—
21
Referred to Judiciary Committee,
07/29/2005. No hearing held and no
committee vote taken.
09/12/2005
09/13/2005
09/14/2005
09/15/2005
09/22/2005
Reported
favorably
(13-5)
Referred to Judiciary Committee,
10/07/2005. No hearing held and no
committee vote taken.
CRS-42
Senate committee actions
Nominee
Samuel A. Alito Jr.
President
G. W. Bush
Date
received in
Senate a
11/10/2005
Final action by Senate
or President
Days from date received in Senate to:
First
public
hearing
date
Committee
final vote
date
Final action
by Senate or
President
60
75
82
Median number of days from date received in Senate, 1789-2006
14
11
10
Median number of days from date received in Senate, 1789-1966
10
9
7
Median number of days from date received in Senate, 1967-2006
21
50
69
Public
hearing
date(s)
01/09/2006
01/10/2006
01/11/2006
01/12/2006
01/13/2006
Final vote
date b
01/24/2006
Final vote
Reported
favorably
(10-8)
Date
Final
action c
Cloture invoked,
01/30/2006
(72-25)
01/31/2006
Confirmed
(58 - 42)
Sources: U.S. Congress, Senate, Journal of the Executive Proceedings of the Senate of the United States of America (hereafter, Senate Executive Journal), various editions from the
1st Congress through the 107th Congress; Senate Committee on the Judiciary, Legislative and Executive Calendar, various editions from the 77th Congress through the 103rd Congress;
various newspaper accounts accessed on-line through ProQuest Historical Newspapers (the primary source for recorded vote tallies in committee prior to the 1980s); and CRS Report
RL31171,
Supreme Court Nominations Not Confirmed, 1789-2005August 2006, by Henry B. Hogue.
CRS-41; and “Nominations” database in the Legislative Information System, available at
[http://www.congress.gov/nomis/].
Acknowledgment: Extensive preliminary research for this table was performed by Mitchel A. Sollenberger, former CRS Analyst in American National Government.
a. Usually the date on which the President formally makes a nomination, by signing a nomination message, is the same as the date on which the nomination is received, and these two
dates are the same for any given nomination when only one date is shown in the “Date received in Senate” column. However, for the occasional nomination made by a President
on a date prior to the nomination’s receipt by the Senate, the earlier presidential nomination date (“Nom. date”) is distinguished, in parentheses, from the date when the nomination
was received by the Senate.
b. For nominations prior to 1873 that were referred to committee, the “Final vote date” is the date recorded in the Senate Executive Journal on which the committee’s chairman or
other other
member reported the nomination to the Senate. For nominations from 1873 to 2005, the “Final vote date” is the date on which the Judiciary Committee voted to report
a a
nomination or, in one instance (on Feb. 14 1881), involving the first Stanley Matthews nomination ), voted to postpone taking taking action.
c. “Final action,” for purposes of this table, covers the following mutually exclusive outcomes: confirmation by the Senate (“Confirmed”), withdrawal of a nomination by the President
(“Withdrawn”) and Senate rejection by a vote disapproving a nomination (“Rejected”). In other instances, when none of the preceding three outcomes occurred, the last
procedural procedural
action taken by the Senate on a nomination is indicated. On certain nominations, as indicated in the table, the last procedural outcome entailed tabling a nomination
(“Tabled”),
postponing consideration (“Postponed”), or rejecting a motion to proceed to consideration (“Motion to proceed rejected”). Final Senate actions taken by roll-call
votes are shown
in parentheses. Final Senate actions without roll-call votes shown in parentheses were reached by voice vote or unanimous consent. For roll-call votes shown
above, the number
of Yea votes always comes before the number of Nay votes. Thus, under “Confirmed” or “Rejected,” the first number in the vote tally is the number of
Senators who voted
in favor of confirmation, and the second the number voting against confirmation.
d. On Dec. 16 and 17, 1873, the Judiciary Committee held closed-door sessions to examine documents and hear testimony from witnesses relevant to a controversy that arose over
the the
Williams nomination only after the committee had reported the nomination to the Senate. The controversy prompted the Senate to recommit the nomination to the Judiciary
CRS-43
Committee and to authorize the committee “to send for persons and papers.” Senate Executive Journal, vol. 19, p. 211. After holding the two closed- door sessions , the
committee committee
did not re-report the nomination to the Senate. Amid press reports of significant opposition to the nomination in both the Judiciary Committee and the Senate as a
whole, the
nomination, at Williams’s request, was withdrawn by President Ulysses S. Grant on Jan. 8, 1874. The Dec. 16 and 17 sessions can be regarded as an early, perhaps
the earliest,
example of a Judiciary Committee closed-door hearing. However, the above table, which focuses in part on the times that elapsed between dates nominations were
received in the
Senate and dates of public confirmation hearings, does not count the time that elapsed from the date the Williams nominations was received in the Senate until
the Dec. 16 and
17, 1873, sessions, because they were closed to the public.
e. The 60-4 roll call vote to confirm Taft, conducted by the Senate in closed-door executive session, was not recorded in the Senate Executive Journal. Newspaper accounts, however,
reported that a roll call vote on the nomination was demanded in the executive session, and that the vote was 60-4 to confirm, with an agreement reached afterwards not to make
the roll call public. See Robert J. Bender, “Ex-President Taft New Chief Justice of United States,” Atlanta Constitution, July 1, 1921, p. 1; Charles S. Groves, “Taft Is Confirmed,
as Chief Justice,” Boston Daily Globe, July 1, 1921, p. 1; and “Proceedings of Congress and Committees in Brief,” Washington Post, July 1, 1921, p. 6.
f. The Jan. 12, 1925, hearing, held in closed session, heard the testimony of former Sen. Willard Saulsbury of Delaware. “Nomination of Stone Is Held Up Once More,” New York
Times, Jan. 13, 1925, p. 4. At the Jan. 28, 1925, hearing, which was held in open session, the nominee was questioned by the Judiciary Committee for four hours. This was the
first confirmation hearing for a Supreme Court nomination at which the nominee appeared in person to testify. See Albert W. Fox, “Stone Tells Senate Committee He Assumes
Full Responsibility for Pressing New Wheeler Case,” Washington Post, Jan. 29, 1925, p. 1.
g. The Judiciary Committee held two days of confirmation hearings on the Harlan nomination, on Feb. 24 and 25, 1955. The Feb. 24 session, held in closed session, heard the
testimony testimony
of nine witnesses (seven in favor of confirmation, and two opposed). Luther A. Huston, “Harlan Hearing Held by Senators,” New York Times, Feb. 25, 1955, p. 8.
The committee
also began the Feb. 25 hearing in closed session, to hear the testimony of additional witnesses. However, for Judge Harlan, who was the last scheduled witness,
the committee
“voted to open the hearing to newspaper reporters for his testimony.” Luther A. Huston, “Harlan Disavows ‘One World’ Aims in Senate Inquiry,” New York Times,
Feb. 26, 1955,
p. 1.
h. The 45 votes in favor of the motion to close debate fell far short of the super-majority required under Senate rules — then two-thirds of Senators present and voting. The cloture
motion, if approved, would have closed a lengthy debate (which had consumed more than 25 hours over a four-day period) on a motion to proceed to consider the Fortas
nomination.
i. The 52 votes in favor of the motion to close debate fell short of the super-majority required under Senate rules — then two-thirds of Senators present and voting. Although the cloture
motion failed, the Senate later that day (Dec. 10, 1971) agreed, without a procedural vote, to close debate and then voted to confirm Rehnquist 68-26.
j. The 68 votes in favor of the motion to close debate, by invoking cloture, exceeded the majority required under Senate rules — then, and currently, three-fifths of the Senate’s full
membership.
k. Motions to gain approval in Senate committees require a majority vote in favor and thus fail if there is a tie vote.
CRS-4244
Table 2. Senate Votes on Whether to Confirm Supreme Court
Nominations: Number Made by Voice Vote/Unanimous Consent
(UC) or by Roll-Call Vote
Years
By voice vote or UC
(all to confirm)
By roll-call vote (votes to
reject in parentheses)
Totals
1789-1829
24
4 (2)
28
1830-1889
15
21 (3)
36
1890-1965
34
16 (3)
50
1966-20052006
0
1819 (3)
1819
73
5960 (11)
132133 (11)
Years
Totals
Sources: U.S. Congress, Senate, Journal of the Executive Proceedings of the Senate of the United
States of America, various editions from the 1st Congress through the 107th Congress; also,
“Nominations” database in the Legislative Information System, available at
[http://www.congress.gov/nomis/].