Supreme Court Nominations, 1789 to 2020: Actions by the Senate, the Judiciary Committee, and the President

. Supreme Court Nominations, 1789 to the Present: 2017: Actions by the Senate, the Judiciary Committee, and the President Denis Steven Rutkus Specialist on the Federal Judiciary Maureen Bearden Information Research Specialist December 7, 2012,name redacted, Analyst in American National Government ,name redacted, Visiting Scholar Updated July 6, 2018 Congressional Research Service 7-5700 www.crs.gov RL33225 CRS Report for Congress Prepared for Members and Committees of Congress c11173008 . .... www.crs.gov RL33225 Supreme Court Nominations, 1789 to the Present 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 and Senate, has remained unchanged. To receive a lifetime appointment to the Court, a candidate must, under the “Appointments Clause” of the Constitution, first be nominated by the President and then confirmed by the Senate. A key role also has come to be played midway in the process 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 presentthrough 2017. 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. Of the 4344 Presidents in the history of the United States, 4041 have made nominations to the Supreme Supreme Court. They made a total of 160162 nominations, of which 124125 (more than three-quarters) received received Senate confirmation. Also, on 12 occasions in the nation’s history, Presidents have made temporary recess appointments to the Court, without first submitting nominations to the Senate. Of the 36 37 unsuccessful Supreme Court nominations, 11 were rejected in Senate roll-call votes, 11 were were withdrawn by the President, and 1415 lapsed at the end of a session of Congress. Six individuals individuals whose initial nominations were not confirmed were later re-nominatedrenominated and confirmed to positions on the Court. A total of 117119 of the 160162 nominations were referred to a Senate committee, with 116118 of them to the Judiciary Committee (including almost all nominations since 1868). Prior to 1916, the Judiciary Committee considered 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. 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, which reviews, among other things, when Presidents announced their intentions to nominate someone (as distinct from when they formally transmitted Supreme Court nominations to the Senate), see CRS Report RL33118, Speed of Presidential and Senate Actions on Supreme Court Nominations, 1900-2010, by R. Sam Garrett and Denis Steven Rutkus. 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, 1789-2010, by Richard S. Beth and Betsy Palmer. This report will be updated upon the occasion of the next Supreme Court nomination. Congressional Research Service . Supreme Court Nominations, 1789 to the Present Contents Introduction.This report is current through 2017 and will be updated upon the occasion of the next Supreme Court confirmation. For additional perspectives on actions taken on Supreme Court nominations, in earlier historical periods as well as in the modern era, see CRS Report R44235, Supreme Court Appointment Process: President’s Selection of a Nominee; CRS Report R44236, Supreme Court Appointment Process: Consideration by the Senate Judiciary Committee; CRS Report R44234, Supreme Court Appointment Process: Senate Debate and Confirmation Vote; CRS Report R44773, The Scalia Vacancy in Historical Context: Frequently Asked Questions; CRS Insight IN10476, Senate Judiciary Committee Hearings for Supreme Court Nominations: Historical Overview and Data; and CRS Report RL33247, Supreme Court Nominations: Senate Floor Procedure and Practice, 1789-2011. Congressional Research Service Supreme Court Nominations, 1789 to the Present Contents Introduction ..................................................................................................................................... 1 Description of Report’s Contents ..................................................................................................... 1 2 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 ..................................................................... 5 Referral of Nominations to Senate Judiciary Committee .......................................................... 5 Nominations That Received Public Confirmation Hearings ..................................................... 6 Advent of Public Hearings .................................................................................................. 6 Length of Hearings in Days ................................................................................................ 8 Nominations Reported Out of Committee to Full Senate .......................................................... 8 9 Reporting ............................................................................................................................. 8 9 Reporting with a Favorable Recommendation .................................................................... 9 Reporting Without Recommendation .................................................................................. 9 Reporting with an Unfavorable Recommendation .............................................................. 9 10 Nominations Not Reported Out of Committee ........................................................................ 10 10 Senate Cloture Votes on Nominations ......................................................................................11 Final Action by the Senate or the President ............................................................................. 10 13 Days from Date of Senate Receipt of Nomination to First Hearing ........................................ 12 15 Days from Senate Receipt to Final Committee Vote ............................................................... 1316 Days from Senate Receipt to Final Senate or Presidential Action. .......................................... 1417 Recess Appointments to the Supreme Court ........................................................................... 1618 Concluding Observations. .............................................................................................................. 1620 Tables Table 1. Nominations to the Supreme Court of the United States, 1789-August 5, 2010 2017.............................. 1821 Table 2. Senate Votes on Whether to Confirm Supreme Court Nominations: Number Made by Voice Vote/Unanimous Consent (UC) or by Roll-Call Vote ........................................ 4246 Contacts Author Contact Information ........................................................................................................... 42 46 Congressional Research Service . Supreme Court Nominations, 1789 to the Present 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 need for a Supreme Court nomination arises when a vacancy occurs or is scheduled to occur on on the Court.1 The most recent Court vacancy that has been filled at the time of this writing was created by the death of Justice Antonin Scalia on February 13, 2016. In response, President Barack Obama on March 16, 2016, nominated Merrick B. Garland, a sitting judge on the U.S. Court of Appeals for the District of Columbia, to replace Justice Scalia. It was the 161st time a President of The most recent Court vacancy was created when Associate Justice John Paul Stevens retired on June 28, 2010. Justice Stevens had given President Barack Obama advance notice, on April 9, of his intention to step down. In response, President Obama on May 10 nominated Elena Kagan, Solicitor General of the United States, to replace Justice Stevens. It was the 160th time a President of the United States has nominated someone to be a Supreme Court Justice. On July 20, following four days of confirmation hearings, the Senate Judiciary Committee, by a vote of 13-6, favorably reported the Kagan nomination to the Senate. Following three days of floor debate, the Senate, on August 5, confirmed Ms.Kagan to the Court by a vote of 63-37. In the past, most, but not all, Supreme Court nominations have received Senate confirmation. From the first appointments in 1789, the Senate has confirmed 124 out of 160 Court nominations. Of the 36 unsuccessful nominations, 11 were rejected in Senate roll-call votes, while most 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. The 36 unconfirmed nominations, however, included those of six individuals who were later re-nominated The Garland nomination, however, was not acted upon by the Senate (receiving neither a committee hearing nor a floor vote) and ultimately was returned to President Obama at the end of the 114th Congress, on January 3, 2017. Soon thereafter, on February 1, 2017, President Donald J. Trump nominated Neil M. Gorsuch, a sitting judge on the U.S. Court of Appeals for the Tenth Circuit, to fill the Scalia vacancy. The Gorsuch nomination, the 162nd to the Court, received four days of confirmation hearings, after which the Senate Judiciary Committee, on April 3, 2017, by a vote of 11-9, favorably reported the nomination to the Senate. Following three days of floor debate and a 55-45 vote, on April 6, to close debate on the nomination,2 the Senate, on April 7, confirmed Judge Gorsuch to the Court, by a 54-45 vote. On June 27, 2018, Justice Anthony M. Kennedy announced his retirement, effective July 31, 2018. This report will be updated upon the confirmation of his successor. In the past, most, but not all, Supreme Court nominations have received Senate confirmation. From the first appointments in 1789, the Senate has confirmed 125 out of 162 Court nominations. A CRS report in March 2017 noted that since President George Washington’s initial six appointments to the Supreme Court in 1789 and 1790, “a vacancy on the Court has occurred on average every two years. During the post-War period (1946 to the present), a vacancy on the Court has occurred on average every 2.4 years. In more recent years (since 1980), a vacancy has occurred on average slightly less frequently (every 3.1 years).” CRS Report R44773, The Scalia Vacancy in Historical Context: Frequently Asked Questions, by (name redacted) . 2 On April 6, 2017, a first vote on a motion to close debate on the Gorsuch nomination fell short of the super-majority required under Senate rules—then three-fifths of the Senate’s full membership. Immediately thereafter, however, the Senate voted to reinterpret its cloture rule to allow cloture to be invoked on Supreme Court nominations by a simple majority of Senators voting (a quorum being present). The Senate then, pursuant to the rule reinterpretation, voted a second time on the motion to close debate on the nomination, exceeding the simple majority required. Congressional Record, daily edition, vol. 163 (April 6, 2017), pp. S2388-S2390. 1 Congressional Research Service RL33225 · VERSION 29 · UPDATED 1 Supreme Court Nominations, 1789 to the Present Of the 37 unsuccessful nominations, 11 were rejected in Senate roll-call votes, while most 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. The 37 unconfirmed nominations, however, included those of six individuals who were later renominated and confirmed. 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 present2017. The listing appears in a a Supreme Court nominations table, Table 1, later 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. Congressional Research Service 1 . Supreme Court Nominations, 1789 to the Present Specifically, the table lists, for each Supreme Court nomination through 2017, 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 • 3 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 nominationcertain actions were taken on nominations, specifically presenting the number of days that elapsed from the date thea 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. As well, it identifies five occasions (the earliest in 1968, the latest in 2017) on which motions have been made in the Senate to bring debate on Supreme Court nominations to a close. 3 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 a 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. Congressional Research Service RL33225 · VERSION 29 · UPDATED 2 Supreme Court Nominations, 1789 to the Present Table 1, it should be emphasized, tracks the dates of formal actions taken by the President, the Senate, and the Senate Judiciary Committee on each Supreme Court 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 learned of prospective Court vacancies or announced their intention to nominate someone to be a Justice. A discussion focusing more closely on such informal steps in the Supreme Court appointment process can be found in archived CRS Report RL33118, Speed of Presidential and Senate Actions on on Supreme Court Nominations, 1900-2010, by R. Sam Garrett and Denis Steven Rutkus. For an analysis of how frequently vacancies have occurred on the Court, or how long they lasted before being filled, see CRS Report R44773, The Scalia Vacancy in Historical Context: Frequently Asked Questions. 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. 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 Procedure and Practice, 1789-2010, by Richard S. Beth and Betsy Palmer. 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. Congressional Research Service 2 . Supreme Court Nominations, 1789 to the Present 2011. 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.24 A list solely of the 111112 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.35 Findings from the Nominations Table Number of Nominations and Nominees Table 1 lists all 160162 Supreme Court nominations since 1789from 1789 to 2017. Each of the 160162 nominations entailed a President signing a nomination message, which was then transmitted to, and received by, the Senate. A lesser number of separate individuals, 141143, were actually nominated to the Court, with some of them nominated more than once.4 Of the 160 total nominations to the Court, 22 were to the position of Chief Justice and the other 138 to a position as Associate Justice. The 22 Chief Justice nominations involved 20 persons nominated once, and one person nominated twice.5 The 138 Associate Justice nominations involved 121 persons nominated once, 7 persons nominated twice, and 1 person nominated three times. Presidents Who Made the Nominations Of the 43 Presidents in the history of the United States, 40 have made nominations to the Supreme Court.6 These 40 are listed in the second column of Table 1. All but one of the 40 26 4 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 5 The list, available at http://www.supremecourt.gov/about/members_text.aspx, presents first the names of 17 persons who have served as Chief Justice, followed by the 100101 persons who have served as Associate Justices. The listing of 117118 names in all (17 + 100101) includes those of five Chief Justices who earlier had served as Associate Justices, hence reducing to 112113 the total number of persons who have served as members of the Court. 4 6 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 140143 (the number of persons nominated to the Court at least once) is 159 (total Supreme Court nominations). 5 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-of-service 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 (continued...) Congressional Research Service 3 . Supreme Court Nominations, 1789 to the Present 162 (total Supreme Court nominations). Congressional Research Service RL33225 · VERSION 29 · UPDATED 3 Supreme Court Nominations, 1789 to the Present Of the 162 total nominations to the Court, 22 were to the position of Chief Justice and the other 140 to a position as Associate Justice. The 22 Chief Justice nominations involved 20 persons nominated once, and one person nominated twice.7 The 140 Associate Justice nominations involved 123 persons nominated once, 7 persons nominated twice, and 1 person nominated three times. Presidents Who Made the Nominations Of the 44 Presidents in the history of the United States, 41 have made nominations to the Supreme Court.8 These 41 are listed in the second column of Table 1. All but one of the 41 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 in 1866, was thwarted when the Senate enacted legislation eliminating the Associate Justice position to which Stanbery had been nominated.79 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 oneslightly less than half of of the Presidents (21 of 4344) made four or more nominations, and onewhile slightly more than half (22 of 4323 of 44) made three or fewer. OneLikewise, slightly less than half of the Presidents (again, 21 of 4344) saw three or more of their Court nominations confirmed, and onewhile slightly more than half (22 of 43again, 23 of 44) 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.8 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.9 And, as noted above, three of the nation’s 43 Presidents were unable to make a single nomination to the Court, because no vacancies occurred on the Court during their presidencies. (...continued) 10 The two Presidents with the 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-of-service dates of Chief Justice nominees, as well as their ages at time of appointment and upon termination of service), see archived CRS Report RL32821, The Chief Justice of the United States: Responsibilities of the Office and Process for Appointment, by (name redacted) and (name redacted) . 8 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 2008,” in CRS Report RL31171, Supreme Court Nominations Not Confirmed, 1789-August 2010, by Henry B. Hogue(name redacted) , 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.March 4 to Apr.April 4, 1841) and Taylor (Mar.March 5, 1849 to July 9, 9, 1850), Jimmy Carter’s presidency (Jan.January 20, 1977 to Jan.January 20, 1981) is remarkable as the only one lasting a full term term during which no Supreme Court vacancies occurred. 7 9 See Myron Jacobstein and Roy M. Mersky, The Rejected (Milpitas, CA: Toucan Valley Publications, 1993), pp. 6974. (HereafterHereinafter cited as Jacobstein and Mersky, The Rejected.) 8 10 President Washington, early in his first term of office, was presented with the opportunity to make six Supreme Court Court nominations, as the Judiciary Act of 1789 (1 Stat. 73 (1789)) set the number of Justice positions on the newly established Court at six. On September 24, 1789, the President nominated six persons to the Court, and two days later the Senate voted for their confirmation. However, one of the confirmed nominees, Robert Harrison of Maryland, declined the appointment, resulting in President Washington, in 1790, making a seventh nomination, of James Iredell of North Carolina, whose confirmation by the Senate put the six-member Court at full strength. Subsequently during the Washington presidency, four vacancies occurred on the Court, which resulted in the President making seven more nominations. Four of these seven nominations were confirmed by the Senate, with the nominees accepting their appointments to the Court. The other three nominations involved the first of two nominations of William Paterson of New Jersey in 1793 (who, after his first nomination was withdrawn, was re-nominated by President Washington and confirmed), John Rutledge of South Carolina (whose nomination in 1795 to be Chief Justice was rejected by the Senate), and William Cushing of Massachusetts (whose nomination in 1796 to be Chief Justice was confirmed by the Senate, but who declined the appointment). 9 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 Supreme Court nomination did not receive confirmation was Andrew Johnson. Congressional Research Service 4 . Supreme Court Nominations, 1789 to the Present(continued...) 7 Congressional Research Service RL33225 · VERSION 29 · UPDATED 4 Supreme Court Nominations, 1789 to the Present 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. Seven Presidents made only one Supreme Court nomination each, with the nominations of six of these Presidents receiving confirmation.11 And, as noted above, three of the nation’s 44 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.1012 However, in 31 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 117 of 160119 of 162 Supreme Court nominations have been referred to a Senate committee, 116118 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 after 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. In 1868, Senate rules were changed to provide that all nominations be referred to appropriate standing committees, unless otherwise ordered by the Senate.11 Subsequently, from 1868 to the present day, 90 of 96 Supreme Court nominations have been referred to the Judiciary Committee. The seven nominations not referred to committee were of 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, a former Secretary of War, or a sitting Associate Justice,12 and all 10 (...continued) nominations. Four of these seven nominations were confirmed by the Senate, with the nominees accepting their appointments to the Court. The other three nominations involved the first of two nominations of William Paterson of New Jersey in 1793 (who, after his first nomination was withdrawn, was renominated by President Washington and confirmed), John Rutledge of South Carolina (whose nomination in 1795 to be Chief Justice was rejected by the Senate), and William Cushing of Massachusetts (whose nomination in 1796 to be Chief Justice was confirmed by the Senate, but who declined the appointment). 11 The six Presidents whose single Supreme Court nominations received Senate confirmation were Franklin Pierce, James A. Garfield, William McKinley, Calvin Coolidge, Gerald R. Ford, and (to date) Donald J. Trump. As mentioned above, the one President whose single Supreme Court nomination did not receive confirmation was Andrew Johnson. 12 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.October 31, 2005, but formally signed and transmitted the nomination of Alito to the Senate on Nov.November 10, 2005. For a complete list, from 1900 to 2009, 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 archived CRS Report RL33118, Speed of Presidential and Senate Actions on Supreme Court Nominations, 1900-2010, by R. Sam Garrett and Denis Steven Rutkus. 11 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.... ” 12 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); Edward D. White again, in 1910, this time to be Chief Justice (Associate Justice at time of nomination, and former Senator); William Howard (continued...) Congressional Research Service 5 . Supreme Court Nominations, 1789 to the Present Speed of Presidential and Senate Actions on Supreme Court Nominations, 1900-2010, by (name redacted) and (name redacted) . Congressional Research Service RL33225 · VERSION 29 · UPDATED 5 Supreme Court Nominations, 1789 to the Present 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, 7 out of 12. In 1868, Senate rules were changed to provide that all nominations be referred to appropriate standing committees, unless otherwise ordered by the Senate.13 Subsequently, from 1868 to the present day, 92 of 98 Supreme Court nominations have been referred to the Judiciary Committee. The six nominations not referred to committee were of 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, a former Secretary of War, or a sitting Associate Justice,14 and all were easily confirmed. The last Supreme Court nomination not referred to the Judiciary Committee was that of Senator James F. 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 HearingsHearings15 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.13 In 1916, for the first time, the committee held open 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 to 1923) 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 1946, 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.14 During the next two decades, the Stone nomination was one of 11 Court nominations (...continued) Taft in 1921 (former President); George Sutherland in 1922 (former Senator); and James F. Byrnes in 1941 (Senator). 13 16 In 1916, for the first time, the committee held open confirmation hearings on a 13 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.... ” 14 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); 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). 15 For a historical overview of public hearings on Supreme Court nominations submitted to the Senate, see CRS Insight IN10476, Senate Judiciary Committee Hearings for Supreme Court Nominations: Historical Overview and Data, by (name redacted) . 16 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. December 16 and 17, 1873, were held in closed session. The closed-door sessions were held to examine documents and hear hear testimony from witnesses relevant to a controversy that arose over the Williams nomination only after the committee committee had reported the nomination to the Senate. The controversy prompted the Senate to recommit the nomination to the Judiciary Committee and to 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. 14 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. Congressional Research Service 6 . Supreme Court Nominations, 1789 to the Present December 16 and 17, the committee (continued...) Congressional Research Service RL33225 · VERSION 29 · UPDATED 6 Supreme Court Nominations, 1789 to the Present 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 to 1923) 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 1946, 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.17 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,1518 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.1619 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;1720 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.18 From Tom C. Clark’s appointment in 1949 through the nomination of Elena Kagan in 2010, all but three of 36 Supreme Court nominations have received public confirmation hearings before the Senate Judiciary Committee or a Judiciary subcommittee.19 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 renominated, and hearings were held on that nomination.20 The second and third exceptions 15 21 (...continued) 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 January 8, 1874. See Jacobstein and Mersky, The Rejected, pp. 82-87. 17 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. 18 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. (HereafterHereinafter cited as Farrelly, “Operational Aspects.”) 16 19 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 the nomination “voted against public hearings.” That vote notwithstanding, the nominee voluntarily appeared before the subcommittee on Jan.January 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 Body Backs Murphy for Court,” New York Times, Jan.January 12, 1940, p. 1. Based on this and other similar newspaper accounts of the subcommittee session, Jan.January 11, 1940 is listed below, in Table 1, as a public hearing date for the Murphy Murphy nomination. 17 20 See, in Table 1, the multiple hearing days for the nominations of Felix Frankfurter in 1939 and Robert H. Jackson in 1941. 18 For example, a Judiciary subcommittee hearing on the 1932 nomination of Benjamin N. Cardozo lasted only five21 For example, a Judiciary subcommittee hearing on the 1932 nomination of Benjamin N. Cardozo lasted only five (continued...) Congressional Research Service RL33225 · VERSION 29 · UPDATED 7 Supreme Court Nominations, 1789 to the Present From Tom C. Clark’s appointment in 1949 through the nomination of Neil M. Gorsuch in 2017, all but 4 of 38 Supreme Court nominations have received public confirmation hearings before the Senate Judiciary Committee or a Judiciary subcommittee.22 The first of the four 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 renominated, and hearings were held on that nomination.23 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. Roberts, however, was renominated, this time to be Chief Justice, and hearings were held on that nomination. The fourth and most recent exception, in the presidential election year of 2016, involved the nomination of Merrick B. Garland. No hearings were held on the nomination after the Senate majority leader and chairman of the Senate Judiciary Committee both took the position that the person to fill the Scalia vacancy be one selected by the next President taking office on January 20, 2017.24 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 the present, 18 of the 24 Court nominations which advanced through the hearings stage received four or more days of open confirmation hearings. Four of the 18 nominations received 11 or more days of hearings,25 while another received eight days of (...continued) 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, Wiley B. Rutledge in 1943, 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 in each case against Reed, Vinson and Rutledge.” Farrelly, “Operational Aspects,” pp. 194-195. 19 22 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 February 2 and 19, 1954, after which the full committee, on Feb.February 24, 1954, voted to report the nomination favorably. All subsequent subsequent hearings on Supreme Court nominations were held by the full Judiciary Committee. 20 23 The Judiciary Committee held two days of confirmation hearings on the second Harlan nomination, on Feb. 24 and February 24 and 25, 1955. The Feb.February 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.February 25, 1955, p. 8. The committee also began the Feb.February 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 (continued...) Congressional Research Service 7 . Supreme Court Nominations, 1789 to the Present 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 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 the present, 17 of the 23 Court nominations which advanced through the hearings stage received four or more days of open confirmation hearings. Four of the 17 nominations received 11 or more days of hearings,21 while another received eight days of hearings.22 By contrast, only three of the 23 nominations received two or fewer days of hearings.23newspaper reporters for his testimony.” Luther A. Huston, “Harlan Disavows ‘One World’ Aims in Senate Inquiry,” New York Times, February 26, 1955, p. 1. 24 See CRS Report R44773, The Scalia Vacancy in Historical Context: Frequently Asked Questions, by (name red acted) . See also letter by majority members of the Senate Judiciary Committee to the Senate majority leader expressing unanimous agreement that there be no hearings on any Supreme Court nominee until after the next President was sworn in on January 20, 2017, at https://www.grassley.senate.gov/news/news-releases/judiciary-committeerepublicans-mcconnell-no-hearings-supreme-court-nomination; also, Dave Boyer, “Grassley Reiterates No Hearing Stance in Garland Meeting,” The Washington Times, April 13, 2016, p. A5. 25 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). Congressional Research Service RL33225 · VERSION 29 · UPDATED 8 Supreme Court Nominations, 1789 to the Present hearings.26 By contrast, only three of the 24 nominations received two or fewer days of hearings.27 Nominations Reported Out of Committee to Full Senate Supreme Court nominations referred to the Judiciary Committee have almost always subsequently been 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 of a Supreme Court nominee, the committee technically may vote against reporting the nomination (although Table 1 shows no instances of the committee ever doing this). The committee might also simply decide not to consider or vote on a nomination. Failure to report 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 instances of the committee not reporting have been rare. Of the 116118 Supreme Court nominations referred to the Judiciary Committee, 108109 were reported to the Senate.2428 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. (...continued) newspaper reporters for his testimony.” Luther A. Huston, “Harlan Disavows ‘One World’ Aims in Senate Inquiry,” New York Times, Feb. 26, 1955, p. 1. 21 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). 22 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 committee has favorably reported 75 Supreme Court nominations, with 69 receiving Senate confirmation.29 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 26 In 1969, eight days of confirmation hearings were held on the nomination of Clement F. Haynsworth. 23 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. 24 28 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 1the1, the nomination in 1811 of Alexander Wolcott, which was considered by a select committee and then reported to the Senate, where it was rejected by a 9-24 vote. Congressional Research Service 8 . Supreme Court Nominations, 1789 to the Present 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 committee has favorably reported 74 Supreme Court nominations, with 68 receiving Senate confirmation.25 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.26 29 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 renominated and confirmed. 27 Congressional Research Service RL33225 · VERSION 29 · UPDATED 9 Supreme Court Nominations, 1789 to the Present nomination without urging the Senate either to confirm or to reject.30 The Senate confirmed three of the nominations that were reported in this way, while rejecting the fourth.2731 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 Senate confirmation (and each only by a close roll -call vote);2832 the Senate rejected four of the others29 and postponed taking action on the fifth.30 25 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. 26 others33 and postponed taking action on the fifth.34 Nominations Not Reported Out of Committee Of the 118 Supreme Court nominations referred to the Judiciary Committee since its establishment, 9 were not reported by the committee to the Senate. Although six of the nominees were never confirmed to the Court,35 the other three ultimately were, after being renominated.36 30 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 to bridge or downplay differences between committee members who favor 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. 27 31 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. 28 32 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). 29 33 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). 30 34 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. Congressional Research Service 9 . Supreme Court Nominations, 1789 to the Present Nominations Not Reported Out of Committee Of the 116 Supreme Court nominations referred to the Judiciary Committee since its establishment, eight were not reported by the committee to the Senate. Although five of the nominees were never confirmed to the Court,31 the other three ultimately were, after being renominated.32 Final Action by the Senate or the President From the first Supreme Court appointments in 1789 to the present day, Presidents have made 160 nominations to the Court. Table 1 shows, in the “Final action by Senate or President” column, that the Senate confirmed 124 of these nominations, or roughly three-fourths.33 Of the 36 nominations that were not confirmed, 11 were rejected by the Senate (all in roll-call votes),34 11 were withdrawn by the President,35 and 14 lapsed at the end of a session of Congress without a 31 35 The final outcome for five of these sixthese five nominees, however, was determined not by the failure of their nominations to be be reported out of committee, but by action, or lack of action, taken outside the committee—by the Senate, Congress as a a whole, or the President. 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-nominatedrenominated, reported unfavorably by the Judiciary Committee (in early 1894), and rejected 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. 32 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 re-nominated for Chief Justice; the second Roberts nomination was reported favorably by the Judiciary Committee and confirmed by the Senate. 33 The exact confirmation percentage is 77.5%, reached by dividing 124 confirmations by 160 nominations. 34 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: 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. 35 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 (continued...) Congressional Research Service 10 . Supreme Court Nominations, 1789 to the Present Senate vote cast on whether to confirm.36 The 36 nominations not confirmed by the Senate represented 31 individuals, some of whom were nominated more than once.37 Six individuals whose initial nominations were not confirmed were later re-nominated and confirmed for positions on the Court.38 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 the 135 Senate votes on whether to confirm (resulting in 124 confirmations and 11 rejections), 62 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 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.39 Most votes, (...continued) to be Associate Justice, he re-nominated Roberts to be Chief Justice, and the latter nomination was confirmed. 36 The 14 By contrast, the failure to be confirmed of a sixth unreported nominee, Merrick B. Garland in 2016, could be seen as attributable in significant part to the Judiciary Committee not considering or acting on the Garland nomination. 36 In February 1881, just before the final adjournment of the 46th Congress, the Judiciary Committee voted to postpone (continued...) Congressional Research Service RL33225 · VERSION 29 · UPDATED 10 Supreme Court Nominations, 1789 to the Present Senate Cloture Votes on Nominations When a Supreme Court nomination is under Senate consideration, supporters of the nomination have available to them, under Senate rules, a procedure for placing a time limit on its further consideration. This procedure is the motion to invoke cloture.37 A cloture motion filed on a nomination receives a vote after two days of Senate session. If the Senate agrees to the motion, further consideration of the nomination is limited to 30 hours.38 Over the last half century, the Senate has required different kinds of majorities to invoke cloture on nominations in general, including Supreme Court nominations.39 Prior to 1975, the majority required was two-thirds of Senators present and voting, a quorum being present.40 Thereafter, until 2017, ending consideration of Supreme Court nominations required a vote of three-fifths of Senators duly chosen and sworn (60 Senators unless there was more than one vacancy).41 The cloture threshold for Supreme Court nominations changed again on April 6, 2017, when the Senate reinterpreted its Rule XXII, to allow a simple majority of Senators voting, a quorum being present, to invoke cloture. (The new rule interpretation applied to Court nominations the same majority cloture threshold requirement that the Senate, in a 2013 precedent, had applied to all other nominations.)42 As indicated in Table 1, motions to bring debate on Supreme Court nominations to a close have been made on five occasions:  The first use occurred in 1968, when Senate supporters of Justice Abe Fortas tried unsuccessfully to end debate on the motion to proceed to his nomination to be Chief Justice. After the motion was debated at length, the Senate failed to (...continued) taking action on the Supreme Court nomination of Stanley Matthews; shortly afterwards, however, in a special session of the 47th Congress, Matthews was renominated, and, although his second nomination was reported unfavorably by the Judiciary Committee, it was confirmed by the Senate, 24-23. In November 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 renominated, considered and reported favorably by the Judiciary Committee, and confirmed by the Senate. In September 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. 37 See CRS Report RL31980, Senate Consideration of Presidential Nominations: Committee and Floor Procedure, by (name redacted) ; also, CRS Report RL30360, Filibusters and Cloture in the Senate, by (name redacted) and (name redacted). 38 Ibid. 39 It has only been since 1949, under Senate rules, that cloture could be moved on nominations. Prior to 1949, dating back to the Senate’s first adoption of a cloture rule in 1917, cloture motions could be filed only on legislative measures. See CRS Report RL32878, Cloture Attempts on Nominations: Data and Historical Development, by (name redacted). 40 Ibid. 41 Ibid. 42 See CRS Report R44819, Senate Proceedings Establishing Majority Cloture for Supreme Court Nominations: In Brief, by (name redacted) . The action was similar to that taken in November 2013, when the Senate had reinterpreted the cloture rule to allow a simple majority vote to invoke cloture on all nominations except to the Supreme Court. See CRS Report R43331, Majority Cloture for Nominations: Implications and the “Nuclear” Proceedings of November 21, 2013, by (name redacted) . Congressional Research Service RL33225 · VERSION 29 · UPDATED 11 Supreme Court Nominations, 1789 to the Present     invoke cloture by a 45-43 vote,43 prompting President Johnson to withdraw the nomination.44 A cloture motion to end debate on a Court nomination occurred again in 1971, when the Senate considered the nomination of William H. Rehnquist to be an Associate Justice. Although the cloture motion failed by a 52-42 vote,45 Rehnquist was confirmed later the same day.46 In 1986, a cloture motion was filed on a third Supreme Court nomination, this time of sitting Associate Justice Rehnquist to be Chief Justice. Supporters of the nomination mustered more than the three-fifths majority needed to end debate (with the Senate voting for cloture 68-31),47 and Justice Rehnquist subsequently was confirmed as Chief Justice. A cloture motion was presented to end consideration of a Supreme Court nomination a fourth time, during Senate debate on the nomination of Samuel A. Alito Jr. in January 2006. The motion was presented on January 26, after two days of Senate floor debate.48 On January 30, the Senate voted to invoke cloture by a 72-25 vote,49 and the next day it confirmed the Alito nomination by a vote of 58-42. In 2017, the Senate voted on a fifth occasion on whether to close debate on a Supreme Court nomination, in a series of procedural votes involving the Associate Justice nomination of Neil M. Gorsuch.50 On April 6, 2017, a 55-45 vote on a motion to close debate on the nomination fell short of the supermajority required under Senate rules—then three-fifths of the Senate’s full membership.51 Immediately thereafter, however, the Senate voted to reinterpret its cloture rule to allow cloture to be invoked on Supreme Court nominations by a simple majority of Senators voting (a quorum being present).52 The Senate then, pursuant to the rule reinterpretation, voted a second time on the motion to close For the Senate’s debate on the Fortas nomination immediately prior to the vote on the motion to close debate, see “Supreme Court of the United States,” Congressional Record, vol. 114, October 1, 1968, pp. 28926-28933. 44 The 45 votes in favor of cloture fell far short of the super-majority required—then two-thirds of Senators present and voting, a quorum being present. 45 For the Senate’s debate on the Rehnquist nomination immediately prior to the vote on the motion to close debate, see “Cloture Motion,” Congressional Record, vol. 117, December 10, 1971, pp. 46110-46117. 46 The Senate, on December 10, 1971, confirmed the Rehnquist nomination by a vote of 68-26, after voting 22-70 to reject a motion that a vote on the nomination be deferred until January 18, 1972. Congressional Record, vol. 117, December 10, 1971, p. 46121 (vote on motion to defer) and p. 46197 (confirmation vote). 47 “Nomination of William H. Rehnquist To Be Chief Justice of the United States,” Congressional Record, vol. 132, September17, 1986, pp. 23729-23739. 48 “Cloture Motion,” Congressional Record, January 26, 2006, daily edition, vol. 152, p. S197. 49 “Nomination of Samuel A. Alito, Jr., To Be an Associate Justice of the Supreme Court of the United States,” Congressional Record, January 30, 2006, daily edition, vol. 152, pp. S260-S308. 50 See Congressional Record, April 6, 2017, daily edition, vol. 163, pp. S2388-S2390. 51 Ibid. 52 The Senate established the new precedent, when, by a 48-52 vote, it overturned a ruling of the chair that a 2013 precedent that applied a majority vote cloture threshold to executive branch and lower court nominations did not apply to Supreme Court nominations. For a brief report explaining the Senate’s April 6, 2017 actions (by which the Senate effectively extended to Supreme court nominations its November 2013 reinterpretation of Senate Rule XXII), see CRS Report R44819, Senate Proceedings Establishing Majority Cloture for Supreme Court Nominations: In Brief, by (name redacted) 43 Congressional Research Service RL33225 · VERSION 29 · UPDATED 12 Supreme Court Nominations, 1789 to the Present debate on the nomination, again by a 55-45 vote, which this time exceeded the majority required (now a simple majority).53 The next day, the Senate confirmed the Gorsuch nomination by a vote of 54-45. Final Action by the Senate or the President From the first Supreme Court appointments in 1789 to 2017, Presidents have made 162 nominations to the Court. Table 1 shows, in the “Final action by Senate or President” column, that the Senate confirmed 125 of these nominations, or roughly three-fourths.54 Of the 37 nominations that were not confirmed, 11 were rejected by the Senate (all in roll-call votes),55 11 were withdrawn by the President,56 and 15 lapsed at the end of a session of Congress without a Senate vote cast on whether to confirm.57 The 37 nominations not confirmed by the Senate represented 32 individuals, some of whom were nominated more than once.58 Six individuals whose initial nominations were not confirmed were later renominated and confirmed for positions on the Court.59 53 Ibid. The exact confirmation percentage is 77.1%, reached by dividing 125 confirmations by 162 nominations. 55 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: 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. 56 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 renominated 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 renominated Roberts to be Chief Justice, and the latter nomination was confirmed. 57 The 15 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 eightnine 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 Harlan II in 1954, and Merrick B. Garland in 2016). However, four of the 1415 persons whose nominations lapsed in one session of Congress were renominated in the next congressional session and confirmed (Taney in 1835, Matthews in 1881, Butler in 1922, and Harlan in 1955). 37 58 For a list consisting solely of the 36 unconfirmed Supreme Court nominations as of 2010 (including dates that they were were received in the Senate and received confirmation hearings, committee votes, and Senate debate), see Table 4 in CRS CRS Report RL31171, Supreme Court Nominations Not Confirmed, 1789-August 2010, by Henry B. Hogue. 38 (name redacted) . Since then, the nomination of Merrick B. Garland in 2016 became the 37th Court nomination not to be confirmed. 59 The six individuals who were not confirmed only to be later re-nominatedrenominated and confirmed were, in the following years of confirmation shown in parentheses, William Paterson (1793), Roger B. TaneuyTaney (1836), Stanley Matthews (1881), Pierce Butler (1922), John M. Harlan II (1955), and John G. Roberts Jr. (2005). 39 54 Congressional Research Service RL33225 · VERSION 29 · UPDATED 13 Supreme Court Nominations, 1789 to the Present 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 the 136 Senate votes on whether to confirm (resulting in 125 confirmations and 11 rejections), 63 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 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.60 Many votes, on the other hand, have been overwhelmingly in favor of confirmation.61 A recent trend, however, has been for Supreme Court nominations to be confirmed by narrower vote margins. In the case of three of the four most recent Court nominations considered by the Senate—in 2006, 2009, and 2010—a solid majority of the Senate voted in favor of confirmation. In each instance, however, a minority of more than 30% of the Senate’s Members voted against confirmation,62 with all three nominations receiving nay votes from a majority of Senators not belonging to the President’s party.63 In keeping with this trend, the vote on a fourth, and most recent, Supreme Court nomination considered by the Senate (of Neil M. Gorsuch in 2017), was confirmed by a still closer 54-45 margin, by a near party-line vote.64 60 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 54-45 vote in 2017 confirming Neil M. Gorsuch, 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, the 63-37 vote in 2010 confirming Elena Kagan, 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 (continued...) Congressional Research Service 11 . Supreme Court Nominations, 1789 to the Present however, have been overwhelmingly in favor of confirmation.40 On other occasions, as occurred with the three most recent nominations to the Court, a solid majority of the Senate has voted in favor of confirmation, but with a minority of more than 30% of the Senate’s Members voting against confirmation.41 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. 61 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 (990), Antonin Scalia in 1986 (98-0), 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 (891), and Ruth Bader Ginsburg in 1993 (96-3). 62 The Senate in 2006 confirmed Samuel A. Alito Jr. by a 58-42 vote, in 2009 confirmed Sonia Sotomayor by a 68-31 vote, and in 2010 confirmed Elena Kagan by a 63-37 vote. In the more distant past, it might be noted, the Senate has been similarly divided. For example, although it confirmed two of President Andrew Jackson’s nominees to the Court (Roger B. Taney to be Chief Justice in 1836 and John Catron in 1837) by comfortable vote margins, on both occasions more than one-third of the votes cast were against confirmation, with the Senate confirming Taney 29-15 and Catron 28-15. 63 See CRS Report R44234, Supreme Court Appointment Process: Senate Debate and Confirmation Vote, by (name red acted) (under heading”Vote Outcome and Number of Nay Votes”). 64 See, for example, Alex Swoyer, "Senate Confirms Supreme Court Pick Gorsuch," The Washington Times, April 7, (continued...) Congressional Research Service RL33225 · VERSION 29 · UPDATED 14 Supreme Court Nominations, 1789 to the Present 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 4546 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 four days, for the nominations of both Benjamin N. Cardozo in 1932 and William O. Douglas in 1939; the second shortest time interval of this sort was five 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 Potter Stewart in 1959; the nextlongest 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 Elena KaganNeil M. Gorsuch to be Associate Justice in 2010,422017,65 a median of 2627 days elapsed between Senate receipt and first day of confirmation hearings.4366 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 (...continued) 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. 40 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 (990), Antonin Scalia in 1986 (98-0), 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 (891), and Ruth Bader Ginsburg in 1993 (96-3). 41 In the case of the three most recent Supreme Court nominees, the Senate in 2006 confirmed Samuel A. Alito Jr. by a 58-42 vote, in 2009 confirmed Sonia Sotomayor by a 68-31 vote, and in 2010 confirmed Elena Kagan by a 63-37 vote. In the much more distant past, the Senate confimed two of President Andrew Jackson’s nominees to the Court (Roger B. Taney to be Chief Justice in 1836 and John Catron in 1837) by comfortable vote margins, although on both occasions more than one-third of the votes cast were against confirmation, with the Senate confirming Taney 29-15 and Catron 28-15. 42 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 eight of the nine 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.67 While the elapsed time for the ninth 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 (...continued) 2017, at www.washingtontimes.com (noting that all but three Senators not of the President’s party voted against, and all Senators of the President’s party who were in the chamber voted for, confirming Gorsuch). The “relatively high number of nay votes received by recent nominations to the Supreme Court is atypical historically (at least since 1945). Additionally, the relatively high number of nay votes received by recent nominations reflects greater opposition than in the past by Senators not belonging to a President’s party to nominations to the Court.” CRS Report R44234, Supreme Court Appointment Process: Senate Debate and Confirmation Vote, by (name redacted) 65 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. 43 66 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. Congressional Research Service 12 . Supreme Court Nominations, 1789 to the Present 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 seven of the eight 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.44 While the elapsed time for the eighth 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 67 For the eight 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, 56 days for Stephen G. Breyer in 1994, 60 days for Samuel A. Alito Jr. in 2005-2006, 42 days for Sonia Sotomayor in 2009, 49 days for Elena Kagan in 2010, and 47 days for Neil M. Gorsuch in 2017. Congressional Research Service RL33225 · VERSION 29 · UPDATED 15 Supreme Court Nominations, 1789 to the Present be renominated for Chief Justice—was received by the Senate 45 days prior to the start of hearings on his Chief Justice nomination. 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 110111 Court nominations that received final committee votes,4568 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.4669 The committee votes on 14 other nominations to the court occurred three days or less after the dates of Senate receipt.4770 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.4871 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.49 From the Supreme Court nomination of 44 For the seven 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, 56 days for Stephen G. Breyer in 1994, 60 days for Samuel A. Alito Jr. in 2005-2006, 42 days for Sonia Sotomayor in 2009, and 49 days for Elena Kagan in 2010. 45 72 From the Supreme Court nomination of Thurgood Marshall in 1967 through the nomination of Neil M. Gorsuch in 2017, a median of 51 days elapsed between Senate receipt and final committee vote.73 Somewhat earlier, during the presidency of Dwight D. Eisenhower (1953 to 1961), two of five Supreme Court nominations were pending, prior to Judiciary Committee vote, in excess of the 1967-to-2017 median of 51 days for that time interval (while two other nominations were pending 44 and 49 days respectively before receiving committee action);74 however, the corresponding 68 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. 46 69 Ironically, five days after the committee’s favorable, and extremely prompt, recommendation of Cushing, President Ulysses S. Grant withdrew the nomination. 47 70 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. 48 71 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). 49 72 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. Congressional Research Service 13 . Supreme Court Nominations, 1789 to the Present Thurgood Marshall in 1967 through the nomination of Elena Kagan in 2010, a median of 51 days elapsed between Senate receipt and final committee vote.50 Somewhat earlier, during the presidency of Dwight D. Eisenhower (1953 to 1961), two of five Supreme Court nominations were pending, prior to Judiciary Committee vote, in excess of the 1967-to-2010 median of 51 days for that time interval (while two other nominations were pending 44 and 49 days respectively before receiving committee action);51 however, the corresponding 73 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. 74 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 (continued...) Congressional Research Service RL33225 · VERSION 29 · UPDATED 16 Supreme Court Nominations, 1789 to the Present 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 51-day median.5275 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 152153 of the 160162 nominations listed in the table, with no elapsed time shown for eightnine nominations on which there was no record of any kind of official or effective final action by the Senate or by the President.5376 At the bottom of the table, the median number of elapsed days from initial Senate receipt until final action by the Senate or the President is shown for three historical periods—1789-2010time spans—1789-2017, 1789-1966, and 1967-2010. 50 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. 51 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.2017. 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 April 17, 2017 (the date on which the Senate confirmed the nomination of Neil M. Gorsuch) a median of 68 days elapsed from 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 1966.77 Most of the Supreme Court nominations receiving final action within a (...continued) York Times, February 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.) Receiving much more expeditious committee action was President Eisenhower’s fifth Supreme Court nomination, of Charles E. Whittaker in 1957, which was approved by the Judiciary Committee 16 days after Senate receipt. 52 75 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. 53 76 Besides nominations that received official final Senate action in the form of confirmation or rejection (124125 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. Congressional Research Service 14 . Supreme Court Nominations, 1789 to the Present 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 August 5, 2010 (the date on which the Senate confirmed the nomination of Elena Kagan) a median of 69 days elapsed from 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 1966.54 Most of the Supreme Court nominations receiving final action within a 77 At first glance, the nomination of John G. Roberts Jr. for Chief Justice in 2005 appears to be a deviation from the 1967 to 2009 median interval from date received to final action of 68 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 September 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 September 3, 2005, the Roberts Associate Justice nomination was withdrawn, and he was renominated to be Chief Justice. Hearings on the Roberts Associate Justice nomination, set to begin on September 6, were cancelled, and rescheduled hearings, on the Chief Justice nomination, began on September 12. The overall time that elapsed from the (continued...) Congressional Research Service RL33225 · VERSION 29 · UPDATED 17 Supreme Court Nominations, 1789 to the Present relatively brief period of time—for example, within three days of initial receipt in the Senate— occurred before the 20th century,5578 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).5679 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 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 the 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. 54 At first glance, the nomination of John G. Roberts Jr. for Chief Justice in 2005 appears to be a deviation from the 1967 to 2009 median interval from date received to final action of 68 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 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 first 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,80 with the last three made almost a century later, in the 1950s, during the presidency of Dwight D. Eisenhower.81 (...continued) Associate Justice nomination of Judge Roberts on July 29 until Senate confirmation of his Chief Justice nomination on Sept. September 29 was 62 days. 55 78 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. 56 79 Table 1 shows that 17 nominations received final Senate or presidential action more than 75 days after date of receipt in the Senate. Thirteen of the 17 were 20th or 21st century nominations, with 11 made since 1967. Congressional Research Service 15 . Supreme Court Nominations, 1789 to the Present 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,57 with the last three made almost a century later, in the 1950s, during the presidency of Dwight D. Eisenhower.58 80 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. 81 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. Congressional Research Service RL33225 · VERSION 29 · UPDATED 18 Supreme Court Nominations, 1789 to the Present 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.5982 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).6083 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 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 the 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, 57 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. 58 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. 59 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.” 60 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 (out of print, available from author); and Henry B. Hogue, “The Law: Recess Appointments to Article III Courts,” Political Science Quarterly, vol. 34, September 2004, p. 656. Congressional Research Service 16 . Supreme Court Nominations, 1789 to the Present 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; it would remain the Judiciary Committee’s practice in considering the first two Supreme Court President Eisenhower’s three recess appointments in the 1950s generated controversy. Concerns were expressed, among other things, over potential difficulties placed on Senators on the Judiciary Committee interrogating a nominee who already was sitting on the Court, and over the possibility of the judgments of a recess-appointed Justice being shaped by concerns with his eventual confirmation process.84 The possibility of further recess appointments prompted the Senate in 1960, voting closely along party lines, to pass a resolution expressing opposition to Supreme Court recess appointments in the future.85 More recently, the two Houses of Congress have, on a regular basis from the 110th Congress (2007-2008) onward, kept their recesses relatively short, effectively preventing Presidents from making any recess appointments (including to the Supreme Court) during those periods.86 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.” 83 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 (name redacted) (out of print, available from author); and (name redacted), “The Law: Recess Appointments Article to III Courts,” Political Science Quarterly, vol. 34, September 2004, p. 656. 84 See U.S. Congress. Senate Committee on the Judiciary, Expressing the Sense of the Senate That Recess Appointments to the Supreme Court of the United States Should Not Be Made Except Under Unusual Circumstances, report to accompany S.Res. 334, 86th Cong., 2nd sess., August 22, 1960, S.Rept. 1893 (Washington: GPO, 1960). 85 Adopted by the Senate on August 29, 1960, by a 48-37 vote, S.Res. 334 expressed the sense of the Senate that recess appointments to the Supreme Court “should not be made, except, under unusual circumstances and for the purpose of preventing or ending a demonstrable breakdown in the administration of the Court’s business.” “Opposition to Recess Appointments to the Supreme Court,” debate in Senate on S.Res. 334, Congressional Record, vol. 106 (August 29, 1960), pp. 18130-18145. 86 “From the 110th Congress onward,” a CRS report has noted, “it has become common for the Senate and House to use certain scheduling practices as a means of precluding the President from making recess appointments. The practices do this by preventing the occurrence of a Senate recess of sufficient length for the President to be able to use his recess appointment authority. As previous discussed ..., in a June 26, 2014 opinion [ Nat’l Labor Relations Bd. v. Noel Canning, 134 S. Ct. 2550 (2014)], the U.S. Supreme Court held that the President’s recess appointment power may be used essentially only during a recess of 10 days or longer.” CRS Report RS21308, Recess Appointments: Frequently Asked Questions, by (name redacted) . 82 Congressional Research Service RL33225 · VERSION 29 · UPDATED 19 Supreme Court Nominations, 1789 to the Present 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 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 part of the time to answer extensive questioning from committee members—would become the usual practice. This would remain the Judiciary Committee’s practice in considering Supreme Court nominations in the 21st century. 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. Historically, recorded vote margins on Supreme Court nominations have varied considerably. Some roll-call votes, either confirming or rejecting a nomination, have been close, while many other votes have been overwhelmingly in favor of confirmation. A trend in recent decades, however, has been for Supreme Court nominations which receive a Senate vote to be confirmed by narrower vote margins—with, as previously discussed, the four most recently confirmed nominations receiving nay votes from a majority of Senators not belonging to the President’s party. 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. Congressional Research Service 17 . Supreme Court Nominations, 1789 to the Present RL33225 · VERSION 29 · UPDATED 20 Table 1. Nominations to the Supreme Court of the United States, 1789-August 5, 20102017 Days from date received in Senate to: Senate committee actions Final action by Senate or President Date Final actionc First public hearing date 09/24/1789 09/26/1789 Confirmed — — 2 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 (Nom. Date 02/08/1790) 02/10/1790 Confirmed — — 1 Nominee President Date received in Senatea John Jay of New York (Chief Justice, hereafterhereinafter C. J.) Washington John Rutledge of South Carolina CRS-18 (Nom. Date 02/08/1790)21 Public hearing date(s) Final vote dateb Final vote Nomination predated creation of Judiciary Committee in 12/10/1816. No record of other committee referral. Committee final vote date Final action by Senate or President . Supreme Court Nominations, 1789 to the Present Days from date received in Senate to: Final action by Senate or President Senate committee actions Nominee Thomas Johnson of Maryland President Date received in Senatea Washington Public hearing date(s) Final vote dateb Final vote Date Final actionc First public hearing date Committee final vote date Final action by Senate or President Recess Appointment, 08/05/1791 11/01/1791 11/07/1791 Confirmed — — 6 02/28/1793 Withdrawn — — 1 03/04/1793 Confirmed — — 0 (Nom. Date 10/31/1791) William Paterson of New Jersey Washington 02/27/1793 William Paterson of New Jersey Washington 03/04/1793 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 Connecticut (C. J.) Washington 03/03/1796 CRS-19 Nomination predated creation of Judiciary Committee in 12/10/1816. No record of other committee referral. President Date received in Senatea Thomas Johnson of Maryland Washington William Paterson of New Jersey Washington 02/27/1793 William Paterson of New Jersey Washington 03/04/1793 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 Connecticut (C. J.) Washington 03/03/1796 CRS-22 Public hearing date(s) Final vote dateb Final vote Date Final actionc Days from date received in Senate to: First public hearing date Committee final vote date Final action by Senate or President Recess Appointment, 08/05/1791 11/01/1791 (Nom. Date 10/31/1791) Nomination predated creation of Judiciary Committee in 12/10/1816. No record of other committee referral. 11/07/1791 Confirmed — — 6 02/28/1793 Withdrawn — — 1 03/04/1793 Confirmed — — 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. . Supreme Court Nominations, 1789 to the Present Days from date received in Senate to: Final action by Senate or President Senate committee actions Nominee President Bushrod Washington of Virginia J. Adams Alfred Moore of North Carolina Date received in Senatea Public hearing date(s) Final vote dateb Final vote Date Final actionc Days from date received in Senate to: First public hearing date Committee final vote date Final action by Senate or President Recess Appointment, 09/29/1798 12/19/1798 12/20/1798 Confirmed — — 1 J. Adams 12/04/1799 12/10/1799 Confirmed — — 6 John Jay of New York (C. J.) J. Adams 12/18/1800 12/19/1800 Confirmed (Nominee declined) — — 1 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 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 CRS-2023 Nomination predated creation of Judiciary Committee in 12/10/1816. No record of other committee referral. Recess Appointment, 11/10/1806 12/15/1806 (Nom. date 12/13/1806) 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 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 . Supreme Court Nominations, 1789 to the Present Days from date received in Senate to: Final action by Senate or President Senate committee actions President Date received in Senatea 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 Robert Trimble of Kentucky Nominee Public hearing date(s) Final vote dateb Final vote Nomination predated creation of Judiciary Committee in 12/10/1816. No record of other committee referral. First public hearing date Committee final vote date Final action by Senate or President Date Final actionc 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 (Nom. date 12/5/1823) Confirmed — — 1 05/09/1826 Confirmed (27-5) — — 27 02/12/1829 Postponed (23-17) — 39 56 J. Q. Adams John Crittenden of Kentucky J. Q. Adams 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. 01/06/1830 Confirmed (41-2) — — 1 James M. Wayne of Georgia Jackson 01/09/1835 Confirmed — 2 2 (Nom. date 04/11/1826) 12/18/1828 (Nom. date 12/17/1828) (Nom. date 01/04/1830) 01/07/1835 (Nom. date 01/06/1835) Motion to refer to Judiciary Committee rejected by Senate, 05/09/1826 (7-25) 12/09/1823 Robert Trimble of Kentucky CRS-21 04/12/1826 Nomination was not referred to Judiciary Committee.Nomination was not referred to Judiciary Committee. J. Q. Adams 04/12/1826 (Nom. date 04/11/1826) Motion to refer to Judiciary Committee rejected by Senate, 05/09/1826 (7-25) John Crittenden of Kentucky J. Q. Adams 12/18/1828 (Nom. date 12/17/1828) John McLean of Ohio Jackson 03/06/1829 Henry Baldwin of Pennsylvania Jackson 01/05/1830 (Nom. date 01/04/1830) James M. Wayne of Georgia Jackson 01/07/1835 (Nom. date 01/06/1835) CRS-24 Days from date received in Senate to: 12/09/1823 Confirmed — — 1 05/09/1826 Confirmed (27-5) — — 27 02/12/1829 Postponed (23-17) — 39 56 Nomination was not referred to Judiciary Committee. 03/07/1829 Confirmed — — 1 Nomination was not referred to Judiciary Committee. 01/06/1830 Confirmed (41-2) — — 1 01/09/1835 Confirmed — 2 2 No record of hearing No record of hearing 01/26/1829 01/09/1835 Reported with recommendation not to act Reported . Supreme Court Nominations, 1789 to the Present Days from date received in Senate to: Final action by Senate or President Senate committee actions President Date received in Senatea Public hearing date(s) 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 Philip P. Barbour of Virginia Jackson William Smith of Alabama Jackson 03/03/1837 No record of hearing 03/08/1837 John Catron of Tennessee Jackson 03/03/1837 No record of hearing 03/08/1837 John McKinley of Alabama Van Buren NomineePeter V. Daniel of Virginia Van Buren 02/27/1841 (Nom. date 02/26/1841) John C. Spencer of New York Tyler 01/09/1844 (Nom. date 01/08/1844 Nominee CRS-25 No record of hearing Final vote dateb 01/05/1836 Final vote Reported Date Final actionc 03/03/1835 Postponed (24-21) Motion to proceed, 03/14/1836 (25-19) 03/15/1836 12/28/1835 09/19/1837 Peter V. Daniel of Virginia Van Buren John C. Spencer of New York Tyler No record of hearing 01/05/1836 ReportedNo record of hearing 01/05/1836 Reported Days from date received in Senate to: First public hearing date Committee final vote date Final action by Senate or President — — 47 — 8 78 — 8 78 Confirmed (29-15) Motion to proceed, 03/15/1836 (25-20) 03/15/1836 Confirmed (30-11) Reported 03/08/1837 Confirmed (23-18) (Nominee declined) — 5 5 Reported 03/08/1837 Confirmed (28-15) — 5 5 Recess Appointment, 04/22/1837 (Nom. date 09/18/1837) CRS-22 No record of hearing Final vote dateb First public hearing date 02/27/1841 (Nom. date 02/25/1841) 01/09/1844 (Nom. date 01/08/1844 09/19/1837 (Nom. date 09/18/1837) No record of hearing Reported 09/25/1837 Confirmed — 6 6 Nomination was not referred to Judiciary Committee. 03/02/1841 Confirmed (22-5) — — 3 01/31/1844 Rejected (21-26) — 21 22 No record of hearing 09/25/1837 01/30/1844 Reported . Supreme Court Nominations, 1789 to the Present Days from date received in Senate to: Senate committee actions President Date received in Senatea Public hearing date(s) Reuben H. Walworth of New York Tyler 03/13/1844 No record of hearing Edward King of Pennsylvania Tyler 06/05/1844 John C. Spencer of New York Tyler 06/17/1844 Reuben H. Walworth of New York Tyler 06/17/1844 Reuben H. Walworth of New York Tyler Edward King of Pennsylvania Tyler12/10/1844 (Nom. date 12/04/1844) No record of hearing Edward King of Pennsylvania Tyler 12/10/1844 (Nom. date 12/04/1844) No record of hearing Nominee No record of hearing Final vote dateb Final vote 06/14/1844 Reported 06/14/1844 Reported Nomination was not referred to Judiciary Committee. Nomination was not referred to Judiciary Committee. 12/10/1844 (Nom. date 12/04/1844) 12/10/1844 (Nom. date 12/04/1844) Samuel Nelson of New York Tyler John M. Read of Pennsylvania Tyler George W. Woodward of Pennsylvania Polk 02/06/1845 No record of hearing 01/21/1845 Reported Final action by Senate or President 01/21/1845 Reported 01/21/1845 Reported Tyler 02/06/1845 (Nom. date 02/04/1845) No record of hearing 02/08/1845 Reported John M. Read of Pennsylvania Tyler 02/08/1845 No record of hearing 02/14/1845 Reported CRS-26 Date Final actionc Tabled, 06/15/1844 (27-20) 01/21/1845 ReportedFirst public hearing date Committee final vote date Final action by Senate or President — 93 96 06/17/1844 Withdrawn 06/15/1844 Tabled (29-18) — 9 10 06/17/1844 Withdrawn — — 0 Motion to proceed objected to, 06/17/1844. Senate adjourned on same day, with no record of further action. — — — Tabled, 01/21/1845 — 42 58 — 42 60 — 2 8 Withdrawn Tabled, 01/21/1845 02/08/1845 Withdrawn 02/14/1845 Confirmed No record of hearing 02/08/1845 Reported 02/08/1845 No record of hearing 02/14/1845 Reported No record of action — 6 — 12/23/1845 No record of hearing 01/20/1846 Reported Motion to postpone rejected, 01/22/1846 (21-28) — 28 30 (Nom. date 02/04/1845) 01/22/1846 CRS-23 Committee final vote date 06/17/1844 02/06/1845 No record of hearing First public hearing date Rejected . Supreme Court Nominations, 1789 to the Present Days from date received in Senate to: Final action by Senate or President Senate committee actions Nominee President Date received in Senatea Public hearing date(s) Final vote dateb Final vote Date Final actionc First public hearing date Committee final vote date Final action by Senate or President (20-29) Levi Woodbury of New Hampshire Polk Robert C. Grier of Pennsylvania Polk Benjamin R. Curtis of Massachusetts Fillmore— 6 — 02/06/1845 Samuel Nelson of New York (Nom. date 02/07/1845) Final action by Senate or President Days from date received in Senate to: Withdrawn Tabled, 01/21/1845 02/08/1845 Withdrawn 02/14/1845 Confirmed No record of action Final action by Senate or President Senate committee actions Nominee George W. Woodward of Pennsylvania President Date received in Senatea Public hearing date(s) Polk 12/23/1845 No record of hearing Final vote dateb Final vote 01/20/1846 Reported Date Motion to postpone rejected, 01/22/1846 (21-28) 01/22/1846 Levi Woodbury of New Hampshire Polk Robert C. Grier of Pennsylvania Polk Benjamin R. Curtis of Massachusetts Fillmore Edward A. Bradford of Louisiana Final actionc Days from date received in Senate to: First public hearing date Committee final vote date Final action by Senate or President — 28 30 Rejected (20-29) Recess Appointment, 09/20/1845 12/23/1845 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 12/12/1851 (Nom. date 12/11/1851) No record of hearing 12/23/1851 Reported 12/23/1851 Confirmed — 11 11 Fillmore 08/21/1852 (Nom. Date 08/16/1852) No record of hearing 08/30/1852 Reported 08/31/1852 Tabled — 9 10 George E. Badger of North Carolina Fillmore 01/10/1853 (Nom. Date 01/03/1853) 02/11/1853 Postponed (26-25) — — 32 — — — Edward A. Bradford of Louisiana Fillmore George E. Badger of North Carolina Fillmore William C. Micou of Louisiana Fillmore 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-24 08/21/1852 No record of hearing (Nom. Date 08/16/1852) 01/10/1853 (Nom. Date 01/03/1853) 02/24/1853 (Nom. Date 02/14/1853)William C. Micou of Louisiana Fillmore 02/24/1853 (Nom. Date 02/14/1853) No record of hearing — — — John A. Campbell of Alabama Pierce 03/21/1853 No record of hearing — 1 1 CRS-27 Nomination was not referred to Judiciary Committee. 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. . Supreme Court Nominations, 1789 to the Present Days from date received in Senate to: 03/22/1853 Reported 03/22/1853 Confirmed Final action by Senate or President Senate committee actions President Date received in Senatea Public hearing date(s) 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. (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 07/16/1862 David Davis of Illinois Lincoln Nominee (Nom. Date 02/05/1861) 01/22/1862 (Nom. Date 01/21/1862) 07/16/1862 Final action by Senate or President Date Final actioncStephen J. Field of California Nominee Days from date received in Senate to: First public hearing date Committee final vote date Final action by Senate or President Final vote dateb Final vote Date Final actionc 01/06/1858 Reported 01/12/1858 Confirmed (26-23) — 28 34 Nomination was not referred to Judiciary Committee. 02/21/1861 Motion to proceed rejected (25-26) — — 15 Reported 01/24/1862 Confirmed (38-1) — 2 2 Nomination was not referred to Judiciary Committee. 07/16/1862 Confirmed — — 0 No record of hearing 01/24/1862 Final vote Committee final vote date Recess Appointment, 10/17/1862 12/03/1862 (Nom. date 12/01/1862) 03/07/1863 No record of hearing 12/05/1862 Reported 12/08/1862 Confirmed — 2 5 Lincoln 03/07/1863 (Nom. date 03/06/1863 No record of hearing 03/09/1863 Reported 03/10/1863 Confirmed — 2 3 12/06/1864 Confirmed — — 0 — — — — 7 50 Stephen J. Field of California Lincoln Salmon P. Chase of Ohio (C. J.) Lincoln 12/06/1864 12/06/1864 Confirmed — — 0 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 CRS-25 Final vote dateb First public hearing date (Nom. date 03/06/1863 (Nom. date 12/14/1869) (Nom. date 12/14/1869) No record of hearing — 7 50 CRS-28 Nomination was not referred to Judiciary Committee. 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) . Supreme Court Nominations, 1789 to the Present Days from date received in Senate to: Final action by Senate or President Senate committee actions President Date received in Senatea Edwin M. Stanton of Pennsylvania Grant 12/20/1869 William Strong of Pennsylvania Grant Joseph P. Bradley of New Jersey Grant Nominee Public hearing date(s) Final vote dateb Final vote (Nom. date 02/07/1870) 02/08/1870 (Nom. date 02/07/1870) No record of hearing 02/14/1870 Reported favorably No record of hearing 02/14/1870 Reported favorably02/08/1870 (Nom. date 02/07/1870) No record of hearing 02/14/1870 Reported favorably Joseph P. Bradley of New Jersey Grant 02/08/1870 (Nom. date 02/07/1870) No record of hearing 02/14/1870 Reported favorably Nominee Public hearing date(s) Final vote dateb Final vote Days from date received in Senate to: First public hearing date Committee final vote date Final action by Senate or President Date Final actionc 12/20/1869 Confirmed (46-11) (Nominee died before assuming office) — — 0 02/18/1870 Confirmed — 6 10 — 6 41 — 5 5 — 9 37 — 0 5 Nomination was not referred to Judiciary Committee 02/08/1870 First public hearing date Postponed, 03/02/1870 (31-26) Motion to postpone rejected, 03/02/1870 (23-28) Ward Hunt of New York Grant George H. Williams of Oregon (C. J.) Grant Caleb Cushing of Massachusetts (C. J.) Grant CRS-26 12/06/1872 (Nom. date 12/03/1872) 12/02/1873 (Nom. date 12/01/1873) 01/09/1874 03/21/1870 Confirmed (46-9) 12/11/1872 Confirmed No record of hearing 12/11/1872 Reported favorably 03/21/1870 Confirmed (46-9) 12/11/1872 Confirmed Ward Hunt of New York Grant 12/06/1872 (Nom. date 12/03/1872) No record of hearing 12/11/1872 Reported favorably George H. Williams of Oregon (C. J.) Grant 12/02/1873 (Nom. date 12/01/1873) No record of hearing 12/11/1873 Reported favorably Closed hearingsd 12/16/1873 12/17/1873 — — 01/08/1874 Withdrawn Caleb Cushing of Massachusetts (C. J.) Grant No record of hearing 01/09/1874 Reported favorably 01/14/1874 Withdrawn Recommitted, 12/15/1873 . Supreme Court Nominations, 1789 to the Present Days from date received in Senate to: CRS-29 01/09/1874 Recommitted, 12/15/1873 Senate committee actions President Date received in Senatea Public hearing date(s) Morrison R. Waite of Ohio (C. J.) Grant 01/19/1874 No record of hearing John Marshall Harlan of Kentucky Hayes 10/17/1877 William B. Woods of Georgia Hayes 12/15/1880 Stanley Matthews of Ohio Hayes Stanley Matthews of Ohio Garfield 03/18/1881 (Nom. date 03/14/1881) Horace Gray of Massachusetts Arthur Roscoe Conkling of New York Samuel Blatchford of New York Nominee CRS-2730 Final vote dateb 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 Final vote Date Final actionc 01/20/1874 Reported favorably 01/21/1874 Confirmed (63-0) — 1 2 No record of hearing 11/26/1877 Reported favorably 11/29/1877 Confirmed — 40 43 No record of hearing 12/20/1880 Reported favorably 12/21/1880 Confirmed (39-8) — 5 6 — 19 — (Nom. date 10/16/1877) 12/15/1880 Tabled motion to reconsider, 12/22/1880 (36-3) 01/26/1881 No record of hearing Considered , 02/07/1881 No record of action 02/14/1881 Postponed No record of hearing 05/09/1881 Reported adversely (6-1) 05/12/1881 Confirmed (24-23) — 5352 55 12/19/1881 No record of hearing 12/20/1881 Reported favorably 12/20/1881 Confirmed (51-5) — 1 1 Arthur 02/24/1882 No record of hearing 03/02/1882 Reported favorably 03/02/1882 Confirmed (39-12) (Nominee declined) — 6 6 Arthur 03/13/1882 No record of hearing 03/22/1882 Reported favorably 03/22/1882 Confirmed — 9 9 03/18/1881 (Nom. date 03/14/1881) . Supreme Court Nominations, 1789 to the Present Days from date received in Senate to: Senate committee actions Nominee President Date received in Senatea Public hearing date(s) Final vote dateb Final action by Senate or President Final vote Date Final actionc Days from date received in Senate to: First public hearing date Committee final vote date Final action by Senate or President Lucius Q. C. Lamar of Mississippi Cleveland 12/12/1887 (Nom. date 12/06/1887) No record of hearing 01/10/1888 Reported adversely (5-4) 01/16/1888 Confirmed (32-28) — 29 35 Melville W. Fuller of Illinois (C. J.) Cleveland 05/02/1888 (Nom. date 04/30/1888)President Date received in Senatea Public hearing date(s) Lucius Q. C. Lamar of Mississippi Cleveland 12/12/1887 No record of hearing Melville W. Fuller of Illinois (C. J.) Cleveland David J. Brewer of Kansas Harrison Nominee (Nom. date 12/06/1887) 05/02/1888 (Nom. date 04/30/1888) 12/04/1889 Final vote dateb Final action by Senate or President First public hearing date Committee final vote date Final action by Senate or President Final vote Date Final actionc 01/10/1888 Reported adversely (5-4) 01/16/1888 Confirmed (32-28) — 29 35 No record of hearing 07/02/1888 Reported without recommendation 07/20/1888 Confirmed (41-20) — 61 79 David J. Brewer of Kansas Harrison 12/04/1889 No record of hearing 12/16/1889 Reported favorably — 12 14 Motion to postpone rejected, 12/18/1889 (15-54) Motion to postpone rejected, 12/18/1889 (25-45) 12/18/1889 Confirmed (53-11) 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 — — — CRS-2831 Considered, 09/25/1893 and 10/25 & 30/1893 No record of action . Supreme Court Nominations, 1789 to the Present Days from date received in Senate to: Senate committee actions President Date received in Senatea Public hearing date(s) William B. Hornblower of New York Cleveland 12/06/1893 No record of hearing Wheeler H. Peckham of New York Cleveland Nominee (Nom. date 12/05/1893) 01/22/1894 Final vote dateb Considered, 12/11, 14 & 18/1893 01/08/1894 01/22/1894 No record of hearing Final vote First public hearing date Committee final vote date Final action by Senate or President Date Final actionc 01/15/1894 Rejected (24-30) — 33 40 02/16/1894 Rejected (32-41) — 21 25 02/19/1894 Confirmed — — 0 Reported adversely On question of reporting favorably, committee vote divided, 02/12/1894 (5-5) 02/12/1894 Final action by Senate or President Days from date received in Senate to: Reported without recommendation Edward D. White of Louisiana Cleveland 02/19/1894 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 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 CRS-2932 Nomination was not referred to Judiciary Committee . Supreme Court Nominations, 1789 to the Present Days from date received in Senate to: Senate committee actions Final vote Date Final actionc First public hearing date 12/16/1909 Reported favorably 12/20/1909 Confirmed — 3 7 05/02/1910 Reported favorably 05/02/1910 Confirmed — 7 7 12/12/1910 Confirmed — — 0 Reported favorably 12/15/1910 Confirmed — 3 3 12/15/1910 Reported favorably 12/15/1910 Confirmed — 3 3 No record of hearing 03/04/1912 Reported favorably 03/13/1912 Confirmed (50-26) — 14 23 No record of hearing 08/24/1914 Reported favorably 08/29/1914 Confirmed (44-6) — 5 10 President Date received in Senatea Public hearing date(s) Horace H. Lurton of Tennessee Taft 12/13/1909 No record of hearing Charles Evans Hughes of New York Taft 04/25/1910 No record of hearing Edward D. White of Louisiana (C. J.) Taft 12/12/1910 Willis Van Devanter of Wyoming Taft 12/12/1910 No record of hearing 12/15/1910 Joseph R. Lamar of Georgia Taft 12/12/1910 No record of hearing Mahlon Pitney of New Jersey Taft 02/19/1912 James C. McReynolds of Tennessee Wilson 08/19/1914 Nominee CRS-3033 Final action by Senate or President Days from date received in Senate to: Final vote dateb Committee final vote date Final action by Senate or President Nomination was not referred to Judiciary Committee. . Supreme Court Nominations, 1789 to the Present Days from date received in Senate to: Senate committee actions President Date received in Senatea Public hearing date(s) Louis D. Brandeis of Massachusetts 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 03/02/1916 03/03/1916 03/04/1916 03/06/1916 03/07/1916 03/08/1916 03/14/1916 03/15/1916 John H. Clarke of Ohio Wilson 07/14/1916 No record of hearing William Howard Taft of Connecticut (C. J.) Harding 06/30/1921 George Sutherland of Utah Harding 09/05/1922 Pierce Butler of Minnesota Harding 11/23/1922 (Nom. date 11/21/1922) Nominee CRS-3134 Final vote dateb Final action by Senate or President (Nom. date 11/22/1922)First public hearing date Committee final vote date Final action by Senate or President Final vote Date Final actionc 05/24/1916 Reported favorably (10-8) 06/01/1916 Confirmed (47-22) 12 117 125 07/24/1916 Reported favorably 07/24/1916 Confirmed — 10 10 06/30/1921 Confirmed (60-4) e — — 0 09/05/1922 Confirmed — — 0 — 5 — Nomination was not referred to Judiciary Committee. Nomination was not referred to Judiciary Committee. No record of hearing First public hearing dateDays from date received in Senate to: 11/28/1922 Reported favorably Placed on Executive Calendar, 11/28/1922, with no record of further action . Supreme Court Nominations, 1789 to the Present Days from date received in Senate to: Senate committee actions Nominee Pierce Butler of Minnesota President Date received in Senatea Public hearing date(s) Harding 12/05/1922 Closed hearings 12/09/1922 12/13/1922 12/18/1922 01/29/1923 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 01/12/1925f Final vote Reported favorablydateb Reported favorably Reported favorably 01/21/1925 Date Final actionc Motion to recommit defeated, 12/21/1922 (7-63) 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 02/05/1925 No hearing held 02/10/1930 Reported favorably (10-2) Motion to recommit rejected, 02/13/1930 (31-49) Charles Evans Hughes of New York (C. J.) Hoover John J. Parker of North Carolina Hoover 03/21/1930 04/05/1930 04/21/1930 Owen J. Roberts of Pennsylvania Hoover 05/09/1930 No hearing held Benjamin N. Cardozo of New York Hoover 02/15/1932 02/19/1932 CRS-3235 Reported favorably Reported favorably 01/21/1925 Charles Evans Hughes of New York (C. J.) 02/03/1930 Final vote dateb Final action by Senate or President Confirmed (71-6) 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 02/13/1930 Confirmed (52-26) Reported adversely (10-6) 05/07/1930 Rejected (39-41) 15 31 47 05/19/1930 Reported favorably 05/20/1930 Confirmed — 10 11 02/23/1932 Reported favorably 02/24/1932 Confirmed 4 8 9 . Supreme Court Nominations, 1789 to the Present Days from date received in Senate to: Senate committee actions Nominee Hugo L. Black of Alabama President F. Roosevelt Date received in Senatea Public hearing date(s) 08/12/1937 No hearing held Final vote dateb 08/16/1937 Final vote Reported favorably (13-4) Final action by Senate or President Date Final actionc Motion to recommit rejected, 08/17/1937 (15-66) 08/17/1937 Confirmed (63-16) Days from date received in Senate to: First public hearing date Committee final vote date Final action by Senate or President — 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 01/10/1939 01/11/1939 01/12/1939 01/16/1939 Reported favorably 01/17/1939 Confirmed 5 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 01/11/1940 01/15/1940 Reported favorably 01/16/1940 Confirmed 87 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 06/12/1941 Confirmed — — 0 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-3336 Nomination was not referred to Judiciary Committee. . Supreme Court Nominations, 1789 to the Present Days from date received in Senate to: Final action by Senate or President Senate committee actions Final vote Date Final actionc First public hearing date 09/19/1945 Reported favorably 09/19/1945 Confirmed — 1 1 06/14/1946 06/19/1946 Reported favorably 06/20/1946 Confirmed 8 13 14 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 09/15/1949 09/27/1949 10/03/1949 Reported favorably (9-2) Motion to recommit rejected, 10/04/1949 (21-45) 12 18 19 22 44 49 President Date received in Senatea Public hearing date(s) Harold H. Burton of Ohio Truman 09/18/1945 No hearing held Fred M. Vinson of Kentucky (C. J.) Truman 06/06/1946 Tom C. Clark of Texas Truman Sherman Minton of Indiana Truman Nominee Final vote dateb 10/04/1949 Earl Warren of California (C. J.) Eisenhower John M. Harlan II of New York Days from date received in Senate to: Committee final vote date Final action by Senate or President Confirmed (48-16) Recess Appointment, 10/02/1953 01/11/1954 02/02/1954 02/19/1954 02/24/1954 Eisenhower 11/09/1954 No hearing held Referred to Judiciary Committee on 11/09/1954. No record of committee vote or Senate action. — — — John M. Harlan II of New York Eisenhower 01/10/1955 02/25/1955g 03/10/1955 4546 59 65 William J. Brennan Jr. of New Jersey Eisenhower Charles E. Whittaker of Missouri Eisenhower CRS-3437 Reported favorably (12-3) Reported favorably (10-4) 03/01/1954 03/16/1955 Confirmed 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 43 49 64 03/02/1957 03/18/1957 03/18/1957 Reported favorably 03/19/1957 Confirmed 16 16 17 . Supreme Court Nominations, 1789 to the Present Days from date received in Senate to: Final action by Senate or President Senate committee actions Nominee President Potter Stewart of Ohio Eisenhower Byron R. White of Colorado Date received in Senatea Public hearing date(s) Final vote dateb Final vote Date Final actionc Days from date received in Senate to: First public hearing date Committee final vote date Final action by Senate or President 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 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 Abe Fortas of Tennessee (C. J.) 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 09/17/1968 Reported favorably (11-6) Cloture motion rejected, 10/01/1968 (45-43)h 15 83 100 CRS-3538 10/04/1968 Withdrawn . Supreme Court Nominations, 1789 to the Present Days from date received in Senate to: Senate committee actions Date Final actionc First public hearing date Referred to Judiciary Committee, 06/26/1968. No committee vote taken. 10/04/1968 Withdrawn 15 — 100 06/03/1969 06/03/1969 Reported favorably 06/09/1969 Confirmed (74-3) 11 11 17 08/21/1969 09/16/1969 09/17/1969 09/18/1969 09/19/1969 09/23/1969 09/24/1969 09/25/1969 09/26/1969 10/09/1969 Reported favorably (10-7) 11/21/1969 Rejected (45-55) 26 49 92 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 Nixon 04/15/1970 04/29/1970 05/06/1970 Reported favorably (17-0) 05/12/1970 Confirmed (94-0) 14 21 27 President Date received in Senatea Public hearing date(s) 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 Warren E. Burger of Virginia (C. J.) Nixon 05/23/1969 Clement F. Haynsworth Jr. of South Carolina Nixon George Harrold Carswell of Florida Harry A. Blackmun of Minnesota Nominee CRS-3639 Final action by Senate or President Days from date received in Senate to: Final vote dateb Final vote Committee final vote date Final action by Senate or President . Supreme Court Nominations, 1789 to the Present Days from date received in Senate to: Senate committee actions President Date received in Senatea Public hearing date(s) 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 William H. Rehnquist of Arizona Nixon 10/22/1971 11/03/1971 11/04/1971 11/08/1971 11/09/1971 11/10/1971 Nominee John Paul Stevens of Illinois Ford Sandra Day O’Connor of Arizona Reagan William H. Rehnquist of Arizona (C. J.) Reagan Antonin Scalia of Virginia Reagan CRS-37 12/01/1975 Final vote dateb 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 Final vote Date Final actionc 11/23/1971 Reported favorably (16-0) 12/06/1971 Confirmed (89-1) 12 32 45 11/23/1971 Reported favorably (12-4) Cloture motion rejected, 12/10/1971 (52-42)i 12 32 49 Motion to postpone until 01/18/1972 rejected, 12/10/1971 (22-70) 12/10/1971 Confirmed (68-26) John Paul Stevens of Illinois Ford 12/01/1975 (Nom. Date 11/28/1975) 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 Sandra Day O’Connor of Arizona Reagan 08/19/1981 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 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) 39 55 89 Antonin Scalia of Virginia Reagan 08/05/1986 08/06/1986 08/14/1986 42 51 85 (Nom. Date 11/28/1975)CRS-40 06/24/1986 Reported favorably (18-0) Cloture invoked, 09/17/1986 (68-31)j 09/17/1986 Confirmed (65-33) 09/17/1986 Confirmed (98-0) . Supreme Court Nominations, 1789 to the Present Days from date received in Senate to: Senate committee actions Nominee Robert H. Bork of District of Columbia President Date received in Senatea Public hearing date(s) 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 dateb Final vote Motion to report favorably rejected, 10/06/1987 (5-9) 10/06/1987 Final action by Senate or President Date Final actionc 10/23/1987 Rejected (42-58) Days from date received in Senate to: First public hearing date Committee final vote date Final action by Senate or President 70 91 108 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 Clarence Thomas of Virginia G. H. W. Bush 07/08/1991 64 81 99 CRS-3841 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 Motion to report favorably failed, 09/27/1991 (7-7)k UC agreement reached, 10/08/1991, to reschedule vote on confirmation from 10/08/1991 to 10/15/991, to allow for additional hearings 09/27/1991 10/15/1991 Reported without recommendation (13-1) Confirmed (52-48) . Supreme Court Nominations, 1789 to the Present Days from date received in Senate to: Senate committee actions President Date received in Senatea Public hearing date(s) Confirmed (52-48) Senate committee actions Nominee President Date received in Senatea Public hearing date(s) Final vote dateb Final vote Final action by Senate or President Date Final actionc Days from date received in Senate to: First public hearing date Committee final vote date Final action by Senate or President (13-1) 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 10/28/2005 Withdrawn — — 21 Samuel A. Alito Jr. of New Jersey G. W. Bush 11/10/2005 Nominee CRS-39 Final vote dateb Committee final vote date Final action by Senate or President Date Final actionc 07/29/1993 Reported favorably (18-0) 08/03/1993 Confirmed (96-3) 28 37 42 07/19/1994 Reported favorably (18-0) 07/29/1994 Confirmed (87-9) 56 63 73 09/06/2005 Withdrawn — — 39 09/29/2005 Confirmed (78-22) 6 16 23 10/28/2005 Withdrawn — — 21 60 75 8260 75 82 CRS-42 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. 01/09/2006 01/10/2006 01/11/2006 01/12/2006 01/13/2006 First public hearing date Final vote 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 Final action by Senate or President 01/24/2006 Reported favorably (10-8) Cloture invoked, 01/30/2006 (72-25) 01/31/2006 Confirmed (58-42) . Supreme Court Nominations, 1789 to the Present Days from date received in Senate to: Senate committee actions President Date received in Senatea Public hearing date(s) Sonia Sotomayor of New York Obama 06/01/2009 07/13/2009 07/14/2009 07/15/2009 07/16/2009 Elena Kagan of Massachusetts Obama 05/10/2010 06/28/2010 06/29/2010 06/30/2010 07/01/2010Merrick B. Garland of Maryland Obama Neil M. Gorsuch of Colorado Trump Nominee Final vote dateb 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 Final vote Date Final actionc 07/28/2009 Reported favorably (13-6) 08/06/2009 Confirmed (68-31) 42 57 66 06/28/2010 06/29/2010 06/30/2010 07/01/2010 07/20/2010 Reported favorably (13-6) 08/05/2010 Confirmed (63-37) 49 71 87 03/16/2016 No hearing held Referred to Judiciary Committee on 03/16/2016. With no subsequent committee vote or Senate action taken, nomination returned to President on 01/03/2017 at final adjournment of 114th Congress. — — — 02/01/2017 03/20/2017 03/21/2017 03/22/2017 03/23/2017 04/03/2017 47 61 65 Median number of days from date received in Senate, 1789-2010 142017 15 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, 1967-2010 26 51 692017 27 51 68 Reported favorably (11-9) Cloture motion rejected 04/06/2017 (55-45); Upon reconsideration, cloture invoked (55-45)l 04/07/2017 Confirmed (54-45) Sources: U.S. Congress, Senate, Journal of the Executive Proceedings of the Senate of the United States of America (hereafterhereinafter, Senate Executive Journal), various editions from the the 1st Congress through the 110th Congress; Senate Committee on the Judiciary, Legislative and Executive Calendar, various editions from the 77th Congress through the 103rd 103rd Congress; various newspaper accounts accessed on-line through ProQuest Historical Newspapers (the primary source for recorded vote tallies in committee prior to the the 1980s); CRS Report RL31171, Supreme Court Nominations Not Confirmed, 1789-August 2010, by Henry B. Hogue(name redacted); and “Nominations” database in the Legislative Information Information System, available at http://www.congress.gov/nomis/. CRS-43 Acknowledgments: Extensive preliminary research for this table was performed by Mitchel A. Sollenberger, former CRS Analyst. Calculations in this table, of median number of days for time intervals at different time periods, were performed by Susan Navarro Smelcer, CRS Aanalyst on the Federal Judiciary. 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 theseresearch for the above table in earlier versions of this report was performed by former CRS analysts (name redacted) and (name redacted) and by former CRS information research specialist Maureen Bearden. Research for the current version of the table was performed by CRS research assistant (name re dacted). a. In the 20th and 21st centuries, the date on which the President formally made a nomination, by signing a nomination message, usually has been the same as the date on which the nomination was received in the Senate. These two dates are the same for any given nomination when only one date is shown in the above table’s “Date “Date received in Senate” column. However, for the occasional a nomination made by a President on a date prior to the nomination’s receipt by the Senate (a common occurrence in much of the 19th century), the earlier presidential nomination date (“Nom. date”) is distinguished, in parentheses, from the later date when the nomination was received by the Senate. b. 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 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 nomination or, in one instance (on Feb.February 14 1881, involving the first Stanley Matthews nomination), voted to postpone taking taking action. c. 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 CRS-40 . Supreme Court Nominations, 1789 to the Present occurred, the last 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. On December 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 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 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 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.January 8, 1874. The Dec.December 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.December 16 and 17, 1873, sessions, because they were closed to the public. e. 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. f. The January 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.January 13, 1925, p. 4. At the Jan.January 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.January 29, 1925, p. 1. g. g. The Judiciary Committee held two days of confirmation hearings on the Harlan nomination, on Feb.February 24 and 25, 1955. The Feb.February 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, February 25, 1955, p. 8. The committee also began the Feb.February 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.February 26, 1955, p. 1. h.CRS-44 h. i. j. k. l. CRS-45 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.December 10, 1971) agreed, without a procedural vote, to close debate and then voted to confirm Rehnquist 68-26. j. Rehnquist 68-26. The 68 votes in favor of the motion to close debate, by invoking cloture, exceeded the majoritysuper-majority then required under Senate rules—then, and currentlynamely, 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-41 . On April 6, 2017, a first vote on the motion to close debate on the Gorsuch nomination fell short of the super-majority required under Senate rules—then three-fifths of the Senate’s full membership. Immediately thereafter, however, the Senate voted to reinterpret its cloture rule to allow cloture to be invoked on Supreme Court nominations by a simple majority of Senators voting (a quorum being present). The Senate then, pursuant to the rule reinterpretation, voted a second time on the motion to close debate on the nomination, exceeding the simple majority required. Congressional Record, daily edition, vol. 163 (April 6, 2017), pp. S2388-S2390. For a brief report explaining the Senate’s April 6, 2017 actions, see CRS Report R44819, Senate Proceedings Establishing Majority Cloture for Supreme Court Nominations: In Brief, by (name redacted) . Supreme Court Nominations, 1789 to the Present Table 2. Senate Votes on Whether to Confirm Supreme Court Nominations: Number Made by Voice Vote/Unanimous Consent (UC) or by Roll-Call Vote 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 1966-20102017 0 2122 (3) 2122 73 6263 (11) 135 (11)136 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 110th Congress; also, “Nominations” database in the Legislative Information System, available at http://www.congress.gov/nomis/. Author Contact Information Denis Steven Rutkus Specialist on the Federal Judiciary drutkus@crs.loc.gov, 7-7162(name redacted) Analyst in American National Government [redacted]@crs.loc.gov , 7-.... Congressional Research Service Maureen Bearden Information Research Specialist mbearden@crs.loc.gov, 7-8955 42(name redacted) Visiting Scholar [redacted]@crs.loc.gov,7-.... RL33225 · VERSION 29 · UPDATED 46 EveryCRSReport.com The Congressional Research Service (CRS) is a federal legislative branch agency, housed inside the Library of Congress, charged with providing the United States Congress non-partisan advice on issues that may come before Congress. EveryCRSReport.com republishes CRS reports that are available to all Congressional staff. The reports are not classified, and Members of Congress routinely make individual reports available to the public. Prior to our republication, we redacted names, phone numbers and email addresses of analysts who produced the reports. 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