Order Code RL33118
CRS Report for Congress
Received through the CRS Web
Speed of Presidential and Senate Actions on
Supreme Court Nominations, 1900-2005
October 18, 2005
R. Sam Garrett
Analyst in American National Government
Government and Finance Division
Denis Steven Rutkus
Specialist in American National Government
Government and Finance Division
Congressional Research Service ˜ The Library of Congress

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Speed of Presidential and Senate Actions on Supreme
Court Nominations, 1900-2005
Summary
The speed with which appointments to the Supreme Court move through various
stages in the nomination-and-confirmation process is often of great interest to all
parties directly involved and the nation as a whole. Shortly after President George
W. Bush’s October 3, 2005, announcement of White House Counsel Harriet E. Miers
as his nominee to replace Associate Justice Sandra Day O’Connor on the Court, both
the President and the majority leader of the Senate advocated that the Senate should
vote on her nomination “by Thanksgiving” (i.e., within 52 days of the
announcement). Senate Judiciary Committee Chairman Arlen Specter stated that he
would like to see confirmation hearings on the nomination concluded by
Thanksgiving.
This report provides information on the amount of time taken to act on all
Supreme Court nominations occurring between 1900 and the present. It focuses on
the actual amounts of time that Presidents and the Senate have taken to act (as
opposed to the elapsed time between official points in the process). For example,
rather than starting the nomination clock with the official notification of the President
of a forthcoming vacancy (e.g., via receipt of a formal retirement letter), this report
focuses on when the President first learned of a Justice’s intention to leave the Court
(e.g., via a private conversation with the outgoing Justice), or received word that a
sitting Justice had died. Likewise, rather than starting the confirmation clock with
the transmission of the official nomination to the Senate, this report focuses on when
the Senate became aware of the President’s selection (e.g., via a public
announcement by the President).
The data indicate that the entire nomination-and-confirmation process (from
when the President first learned of a vacancy to final Senate action) has generally
taken almost twice as long for nominees after 1980 than for nominees in the previous
80 years. From 1900 to 1980, the entire process took a median of 59 days; from 1981
through 2005, the process took a median of 113 days. Although Presidents after
1980 have moved more quickly than their predecessors in announcing nominees after
learning of vacancies (a median of 18 days compared with 34 days before 1980), the
Senate portion of the process (i.e., from the nomination announcement to final Senate
action) now appears to take much longer than before (a median of 84 days from 1981
through 2005, compared with 28 days from 1900 through 1980). Most notably, the
amount of time between the nomination announcement and first Judiciary Committee
hearing has more than tripled — from a median of 13 days (1900-1980) to 51 days
(1981-2005). These data suggest that, if recent past experience is a guide, it may be
difficult for the Senate to complete action on the Miers nomination by Thanksgiving.
However, there is substantial variation within these summary statistics; every
nomination has its own pace. For example, Senate consideration of the nomination
of Ruth Bader Ginsberg in 1993 took 50 days after the presidential announcement.
If the Miers nomination followed that pace, Senate action could be completed by
Thanksgiving.

This report will be updated as new information becomes available.

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Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
The Roberts Nomination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
The Miers Nomination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Measuring the Pace of Supreme Court Appointments . . . . . . . . . . . . . . . . . . 3
Official and Unofficial Timetables . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Objectives of This Report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
How Supreme Court Vacancies Occur . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Death of a Sitting Justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Retirement or Resignation of a Sitting Justice . . . . . . . . . . . . . . . . . . . . 6
Nomination of a Sitting Justice to Another Position . . . . . . . . . . . . . . . 7
Controversial, Withdrawn, and Rejected Nominations . . . . . . . . . . . . . 8
Data Presentation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Date of Actual or Prospective Vacancy . . . . . . . . . . . . . . . . . . . . . . . . . 9
Announcement-of-Nominee Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Use of Medians to Summarize Intervals . . . . . . . . . . . . . . . . . . . . . . . 11
The Duration of the Nomination-and-Confirmation Process . . . . . . . . . . . . 11
Changes During the Past 25 Years . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Factors Influencing the Speed of the Process . . . . . . . . . . . . . . . . . . . . . . . 14
How the Vacancy Occurs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
The Senate’s Schedule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Committee Involvement and Institutional Customs . . . . . . . . . . . . . . 17
Controversial Nominations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Discussion and Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
The Miers Nomination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
List of Figures
Figure 1. Speed in Days of Intervals Surrounding Supreme Court
Nominations and Confirmations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
List of Tables
Table 1. Major Events in the Supreme Court Nomination-and-Confirmation
Process, 1900-2005 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Table 2. Duration in Days Between Major Events in the Supreme Court
Nomination-and-Confirmation Process, 1900-2005 . . . . . . . . . . . . . . . . . . . . . . 44
Table 3. Median Duration in Days Between Major Events in the Supreme
Court Nomination-and-Confirmation Process, 1900-2005 . . . . . . . . . . . . . . . . . 72

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Speed of Presidential and Senate Actions
on Supreme Court Nominations, 1900-2005
Introduction
The nomination and confirmation of a Chief Justice or an Associate Justice to
the U.S. Supreme Court is an infrequent event of major significance in American
public life.1 To receive what may be lifetime appointment to the Court, a candidate
must first be nominated by the President and then confirmed by the Senate. Midway
in the appointment process, intensive hearings on a Supreme Court nomination, often
taking at least three or four days, are routinely held by the Senate Judiciary
Committee, which then can vote on whether to report the nomination to the Senate
with a favorable recommendation.
Nominating and confirming Supreme Court Justices is an interdependent
process. Neither the President nor the Senate acts alone. The decisions that each
branch makes determine how quickly nominations are made and considered, and
whether the nomination is successful. This report provides information on the pace
of all Supreme Court nominations and confirmations since 1900, focusing on the
actual amounts of time that Presidents and the Senate have taken to act (as opposed
to the elapsed time between official points in the process). Events during the summer
and fall of 2005 underscored concerns about the speed with which the President
makes Supreme Court nominations and the Senate acts on those nominations.
The Roberts Nomination. On July 1, 2005, Associate Justice Sandra Day
O’Connor surprised many in official Washington, and possibly President George W.
Bush, with a one-paragraph letter announcing her retirement from the Supreme
Court, effective upon the confirmation of her successor.2 Her announcement created
the first vacancy on the Court in 11 years. The Court had just concluded its 2004-
2005 term, and the opening session of the Court’s next term, on October 3, 2005, was
three months away. Finding a new Associate Justice took on added urgency, given
the failing health of then-Chief Justice William H. Rehnquist. Departure of the Chief
Justice as well as Justice O’Connor could result in the need for two Court
appointments, and create the possibility of at least one vacancy on the Court when
it reconvened in October — unless the new appointments were made expeditiously.
1 CRS Information Specialist Maureen Bearden lent substantial research expertise to this
report, former CRS intern Alvin Huynh provided initial research assistance, and CRS
Specialist in American National Government Curtis Copeland provided helpful input. In
addition, CRS Senior Production Assistants Mildred Boyle and JoAnn Thomas provided
formatting assistance.
2 Justice O’Connor’s retirement letter is available at:
[http://www.supremecourtus.gov/publicinfo/press/oconnor070105.pdf].

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CRS-2
Hours after Justice O’Connor announced her retirement, a senior aide to Senate
Majority Leader Bill Frist told reporters that, “Our goal is to have the court back at
full strength by the first Monday in October.” Senate Judiciary Committee staff were
reportedly “poised to begin reviewing background materials” on potential nominees.3
Nevertheless, appointment of a new Justice in time for the Court’s opening session
seemed like a challenging goal. In recent years, the Senate Judiciary Committee, and
the full Senate as well, had been embroiled in controversies over some of the
President’s nominations to the lower federal courts. Continued controversy seemed
likely surrounding any future nominations to the Supreme Court.
On July 19, 2005, 18 days after receiving Justice O’Connor’s retirement letter,
President Bush announced his selection of John G. Roberts, Jr., a federal appellate
judge, to be the next Associate Justice. Ten days later, on July 29, the President
formally nominated Judge Roberts to the Court, with the nomination document
immediately transmitted to the Senate, where it was referred to the Senate Judiciary
Committee. Hearings on this nomination were scheduled to begin September 6, but
those hearings would never take place.
When Chief Justice William H. Rehnquist died on September 3, Judge Roberts
became the first Supreme Court nominee to be withdrawn by the President for one
seat on the Court and re-nominated for another. The Senate Judiciary Committee
quickly cancelled its Associate Justice hearings, and began Roberts’s Chief Justice
hearings on September 12, 2005. After receiving a favorable 13-5 vote by the
Judiciary Committee on September 22, the nomination of Judge Roberts to be Chief
Justice was confirmed by the Senate on the morning of September 29, 2005, by a 78-
22 vote. Later that day, the confirmed nominee took both his constitutional and
judicial oaths of office at the White House.
Due to the speed with which Judge Roberts was nominated to be Chief Justice
and considered by the Senate Judiciary Committee and the full Senate, his
appointment was completed in time for the Court to be at full strength at the start of
its 2005-2006 term. With the start of that term, Justice O’Connor remained on the
Court, in keeping with the intention stated in her retirement letter of stepping down
only upon the confirmation of her successor. For his part, President Bush had
declined to name a replacement for John Roberts to succeed Sandra Day O’Connor
prior to the Senate vote on September 29 confirming Judge Roberts as Chief Justice.
The Miers Nomination. On October 3, 2005, President Bush announced his
nomination of White House Counsel Harriet E. Miers to succeed Sandra Day
O’Connor as Associate Justice on the Supreme Court. The President said that the
Senate had shown during the confirmation of Chief Justice Roberts that it could act
promptly, and called upon the Senate to “review [Ms. Miers’s] qualifications
thoroughly and fairly and to vote on her nomination promptly.”4 At a press
conference the next day, the President said that he expected the Senate “to hold an
3 “Senate GOP Leaders Seek Quick Action on Nominee to Replace Justice O’Connor,”
Daily Report for Executives, July 5, 2005, p. A-33.
4 See [http://www.whitehouse.gov/news/releases/2005/10/20051003.html] for a copy of the
President’s nomination statement and Miers’s remarks.

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CRS-3
up-or-down vote on Harriet’s nomination by Thanksgiving” (i.e., by Nov. 24, 2005).5
Similarly, Senate Majority Leader Bill Frist called on his colleagues to move
“expeditiously but carefully,” and encouraged a floor vote “by Thanksgiving.” 6
Several news reports suggested that confirmation hearings could begin as early as
November 7, 2005. Senator Arlen Specter, Chairman of the Senate Judiciary
Committee, reportedly told reporters that he hoped the committee would complete
hearings by Thanksgiving7, but also reportedly emphasized that “thoroughness will
be the objective,” as opposed to meeting a particular timetable.8 He also reportedly
said that the timing of hearings on the nomination would in part be up to Ms. Miers,
who would have to study “so that she would have the grasp of these very complex
decisions.”9
Measuring the Pace of Supreme Court Appointments
For many Supreme Court appointments, the timing of individual events is
determined by the decisions of various key players — by sitting Justices planning to
leave the Court; by the President, who selects nominees to fill Court vacancies; and
by Senate committee and party leaders, who respectively schedule committee and
floor action on Supreme Court nominations. First, Justices who retire or resign from
the Court must decide whether to provide the President with advance notice of that
decision. For example, Justice Harry A. Blackmun told President William J. Clinton
of his decision to retire in 1994, more than four months before the decision became
public on April 6 of that year.10 Justice O’Connor, on the other hand, did not appear
to have given President George W. Bush any advance notice when she resigned on
July 1, 2005. Also, the mode of presidential notification varies. While President
Clinton learned of Justice Blackmun’s plans to retire through an informal
conversation, Justice O’Connor apparently notified President Bush of her decision
through a formal letter.
Once the President chooses a nominee, he alerts the Senate — by public
announcement as well as by formal transmission of a written nomination to the
Senate. Frequently, the President will announce and formally nominate his Supreme
5 See [http://www.whitehouse.gov/news/releases/2005/10/20051004-1.html] for the text of
this press conference.
6 See [http://frist.senate.gov/index.cfm?FuseAction=Speeches.Detail&Speech_id=293] for
a copy of Senator Frist’s statement.
7 Kimberly Heffling, “Specter Decries Bush ‘Pummeling’ on Miers,” Washington Post, Oct.
11, 2005
[http://www.washingtonpost.com/wp-dyn/content/article/2005/10/11/AR2005101101310
.html].
8 John Stanton, “Leaders Seeking To Place Miers On Court By Thanksgiving,”
CongressDailyPM, Oct. 3, 2005.
9 Sheryl Gay Stolberg, “Some Liberals and Conservatives Find Themselves in Awkward
Spots,” New York Times, Oct. 4, 2005, p. A23.
10 U.S. National Archives and Records Administration, Office of the Federal Register,
Public Papers of the Presidents of the United States: William J. Clinton, 1993, vol. 1
(Washington: GPO, 1994), p. 597.

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CRS-4
Court choice on the same day, or take both actions within a few days of each other.
Less commonly, Presidents announce their intention to nominate a candidate, then
make the official nomination a week or more later. The most extreme case of the
latter involved President Ronald Reagan in 1981. On July 7 of that year, President
Reagan announced he would send the nomination of Sandra Day O’Connor, then an
Arizona state appeals court judge, to the Senate “upon completion of all the
necessary checks by the Federal Bureau of Investigation.”11 However, it wasn’t until
almost six weeks later, on August 19, that Judge O’Connor was officially
nominated.12 As noted above, after the Senate receives a Supreme Court nomination,
the Judiciary Committee normally holds hearings, followed by final committee
action, and consideration before the full chamber.
Official and Unofficial Timetables. The measurement of how long the
President and the Senate take to execute their official duties surrounding Supreme
Court nominations necessarily focuses on official dates of action taken. The most
important of these action dates include those on which (1) an outgoing Justice
officially informs the President of the intention to step down from the Court (or,
alternatively, the date on which a Court seat is vacated due to the death of a Justice),
(2) a President formally nominates someone to the Court, the Senate receives the
President’s nomination, and the nomination is referred to the Senate Judiciary
Committee (almost always all on the same date),13 (3) the Senate Judiciary
Committee holds hearings on the nomination, (4) the committee votes on the
nomination, and (5) the Senate votes on whether to confirm, or chooses to take no
action.
In addition to these dates, however, the President and the Senate usually
consider Supreme Court nominations outside official timetables. Just as the
President can begin considering a new nominee as soon as he knows a vacancy will
arise, the Senate can begin preparing to consider a nominee as soon as the President
announces his choice, even if the receipt of the formal nomination is still days or
weeks away. Fundamentally, nominations and confirmations to the Supreme Court
involve both formal and informal decisions. While formal decisions are easily
accessible in historical records, informal decisions — sparsely mentioned in the
formal record, or not mentioned at all — might, in many cases, provide better insight
into how long the process truly takes.
Objectives of This Report. This report explores the speed of presidential
and Senate decision-making surrounding nominations to the Supreme Court from
1900 to the present. During this period, there were a total of 60 vacancies and 66
11 U.S. National Archives and Records Administration, Office of the Federal Register,
Public Papers of the Presidents of the United States: Ronald Reagan, 1981 (Washington:
GPO, 1982), p. 596.
12 U. S. Congress, Senate, Journal of the Executive Proceedings of the Senate of the United
States of America, 97th Cong., 1st sess., Aug. 19, 1981 (Washington: GPO, 1982), p. 644.
13 Although these three events usually occur on the same day, a nomination sometimes, on
rare occasions, is received by the Senate on a day after it was signed by the President, or is
referred to the Judiciary Committee on a day after its receipt by the Senate.

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CRS-5
nominees to the Court.14 The analysis concentrates on the period 1900-2005 for two
primary reasons: (1) relevant historical data for this period are much more readily
available and reliable than for earlier Court appointments,15 and (2) public
confirmation hearings for Supreme Court nominations before the Senate Judiciary
Committee — an important phase in the Supreme Court appointment process, and
one of particular interest to this report — were unheard of before the 20th century.16
Although research on Supreme Court nominations often focuses on either
presidential or Senate decision-making, this analysis considers the time both
institutions take to make decisions about, and act on, nominees. The report also takes
a unique approach in discussing — as well as can be determined — how long
Presidents actually take to decide who their nominees will be, and how long the
Senate actually takes to act on nominations. For example, rather than starting the
nomination clock with the official notification of the President of a forthcoming
vacancy (e.g., the receipt of a formal retirement letter), this analysis focuses on when
the President first learned of the vacancy (e.g., a private conversation with the
outgoing Justice). Likewise, rather than starting the confirmation clock with the
transmission the official nomination to the Senate, this analysis focuses on when the
Senate became aware of the President’s selection ( e.g., by a public announcement
by the President).
In many cases, establishing precisely when a President knew that he would have
the opportunity to make a Supreme Court nomination is an impossible task. Such
information might never have been recorded or known by anyone except the
President and his inner circle. However, historical research reveals several instances
when a President had advance knowledge of an impending vacancy, well before the
public announcement of a Justice’s intention to leave the Court. Data sources used
to determine when Presidents first knew of vacancies included historical newspapers,
official documents such as public presidential papers (which contain Justices’
retirement letters to various Presidents), and CRS consultations with presidential
14 For an analysis of all unsuccessful Supreme Court nominees up to 2004, see CRS Report
RL31171, Supreme Court Nominations Not Confirmed, 1789-2004, by Henry B. Hogue. In
addition to the unsuccessful nominations listed in that report for the 1900-2004 period, the
present report includes Judge Douglas H. Ginsburg as a an unsuccessful “nominee” since
one part of the report’s focus is on presidential announcements of nominees. President
Reagan announced his intention to nominate Judge Ginsburg in 1987, but Ginsburg
withdrew his name from consideration before being officially nominated. The Ginsburg
case is briefly discussed later in this report.
15 This particularly is the case for coverage of Supreme Court appointments in on-line full-
text historical newspapers, where coverage, as might be expected, typically is found to be
less comprehensive regarding the procedures of Supreme Court appointments farther back
into the 19th century.
16 The earliest Supreme Court confirmation hearings held in open session were those in 1916
for the nomination of Louis D. Brandeis to be an Associate Justice. See CRS Report
RL31989, Supreme Court Appointment Process: Roles of the President, Judiciary
Committee, and Senate, by Denis Steven Rutkus, p. 19.

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CRS-6
libraries.17 Dates cited throughout this report and in Tables 1-3, at the end of the
report, are based on that research.
How Supreme Court Vacancies Occur
The need for a new appointment to the Court arises when a Justice position
becomes vacant, due to death, retirement, or resignation, or when a Justice announces
his intention to retire or resign. If the vacated seat is that of the Chief Justice, the
President, if he chooses, may nominate a sitting Associate Justice to be Chief, thus
setting the stage for the creation of an Associate Justice vacancy as well. Vacancies
on the Court also will occur if Justices resign to receive new government
appointments or to seek new government positions. When a nomination fails in the
Senate, the President must select a new nominee (unless the President chooses to re-
nominate his first choice).
Death of a Sitting Justice. Supreme Court Justices receive what may be
lifetime appointments, “good Behaviour” being the only constitutionally specified
requirement for continued service.18 Lifetime tenure, interesting work, and the
prestige of the office result in Justices often choosing to serve as long as possible.
Historically, a number of Justices have died in office. Most recently, Chief Justice
William H. Rehnquist died on September 3, 2005, after battling thyroid cancer for
almost a year. Death in office was common on the Court during the first half of the
20th century — 14 of 34 vacancies between 1900-1950. In fact, all five Court
vacancies occurring between 1946 and 1954 were due to death of a sitting Justice
(see Table 1). Of the 23 vacancies since 1954, though, no Justice had died while still
on the Court until Chief Justice Rehnquist in 2005.
Retirement or Resignation of a Sitting Justice. Since 1954, retirement
has been by far the most common way in which Justices have left the bench (19 of
23 vacancies occurring after 1954 resulted from retirements). Resignation (i.e.,
leaving the bench before becoming eligible for retirement compensation) is rare.19
17 Consulting National Archives and Records Administration (NARA) presidential libraries
and records projects to investigate diaries and other records for evidence of private
correspondence between Presidents and outgoing Justices is an ongoing project. CRS
Knowledge Services Group Information Research Specialist Dana Ely, Karen Anson
(Franklin D. Roosevelt Library), Valoise Armstrong (Eisenhower Library), Joshua Cochran
(Ford Library), Jennifer Evans (Nixon Presidential Materials), Sharon Kelly (Kennedy
Library), Matthew Schaefer (Hoover Library), Randy Sowell (Truman Library), Jennifer
Sternaman (Reagan Library), Deborah Wheeler (George Bush Library), and Adam C.
Bergfeld (Clinton Library) provided assistance on this portion of the project.
18 U.S. Constitution, Article III, Sec. 1.
19 Under 28 U.S.C. §371, Supreme Court Justices, like other Article III (tenure “during good
Behaviour”) federal judges, may retire, and be entitled to receive retirement compensation,
in one of two ways — either by taking “senior status” or by “retiring from office.”
Beginning at age 65, they are entitled to receive retirement compensation, if having served
a minimum 10 years as an Article III judge, their age and overall Article III judicial
experience totals 80 years. (Hence, under this “Rule of 80,” a Justice of age 65 must have
(continued...)

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CRS-7
In recent history, two Justices have resigned from the Court. Justice Arthur Goldberg
resigned in 1965 to assume the post of U.S. Ambassador to the United Nations.20
Justice Abe Fortas resigned in 1969 after protracted criticism over controversial
consulting work while on the bench and a failed nomination to be elevated from
Associate Justice to Chief Justice.21 When Justices retire or resign, the President is
usually notified by formal letter. As noted previously, there is evidence in a few
cases that a President informally learned of a forthcoming retirement in advance.
Pursuant to a law enacted in 1939, a Justice (or any other federal judge
receiving lifetime appointment) may also retire if “unable because of permanent
disability to perform the duties of his office,” by furnishing the President a certificate
of disability.22 Prior to 1939, specific legislation from Congress was required to
provide retirement benefits to a Justice departing the Court because of disability who
otherwise would be ineligible for such benefits, due to insufficient age and length of
service. In such circumstances in 1910, for instance, Congress took legislative
action granting a pension to Justice William H. Moody. As the Washington Post
reported at the time, although illness had kept Justice Moody from the bench for
“almost a year,” he was not yet eligible for retirement.23
Nomination of a Sitting Justice to Another Position. When a Chief
Justice vacancy arises, the President may choose to nominate a sitting Associate
Justice for the Court’s top post. If the Chief Justice nominee is confirmed, he or she
must, to assume the new position, resign as Associate Justice, requiring a new
nominee from the President to fill the newly vacated Associate Justice seat.
(...continued)
served 15 years to become eligible for retirement compensation; a Justice of age 66, 14
years; a Justice of age 67, 13 years; etc.) Judges who take senior status retire from regular
active service but retain their judicial office and the salary of the office, subject to annual
certification of their having performed certain judicial or administrative duties in the
preceding year. Judges who retire from office completely relinquish their judicial office
with the right to a frozen lifetime annuity equal to the salary of the office at the time of
retirement. In contrast, a Justice’s resignation entails voluntarily relinquishing his or her
judicial office without meeting the age and service requirements of the Rule of 80 (and thus
being ineligible to receive retirement compensation). See U.S. Administrative Office of the
United States Courts, Senior Status and Retirement for Article III Judges, Apr. 1999 (Judges
Information Series, No. 4), pp. vii-viii.
20 Carroll Kilpatrick, “Goldberg is Named to Stevenson Post,” Washington Post, July 21,
1965, p. A1.
21 On the controversies surrounding Justice Fortas’s nomination and resignation, see
Artemus Ward, Deciding to Leave: The Politics of Retirement from the United States
Supreme Court (Albany: State University of New York Press, 2003), pp. 171-175; and
Philip Warden and Aldo Beckman, “Fortas Agrees to Quit, Nixon Aide Says,” Chicago
Tribune, May 15, 1969, p. 7.
22 The law provides that a Justice retiring under these provisions shall receive for the
remainder of his lifetime “the salary he is receiving at the date of retirement” or, if his
service were less than ten years, one-half of that salary. Act of August 5, 1939, ch. 433, 53
Stat. 1204-1205; 28 U.S.C. §372(a).
23 “Moody Will Retire,” Washington Post, June 15, 1910, p. 1.

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CRS-8
However, this scenario is relatively rare. During the 1900-2005 period, Presidents
attempted to elevate Associate Justices to Chief Justice four times, with the Senate
confirming three nominees. Most recently, in 1986, President Ronald Reagan
nominated then-Associate Justice William H. Rehnquist to be Chief Justice.24
Presidents may also nominate sitting Justices to other political posts, which (if
accepted) require resignation from the Court. Between 1900 and 2005, three Justices
resigned to pursue other formal public service. In 1916, Justice Charles Evans
Hughes resigned to pursue the Republican nomination for President.25 Justice James
F. Byrnes resigned on October 3, 1942, becoming Director of Economic Stability for
President Franklin D. Roosevelt.26 As noted previously, Justice Arthur Goldberg
resigned in 1965 to become the U.N. Ambassador.
Controversial, Withdrawn, and Rejected Nominations. When any
Court nomination (whether for an Associate or Chief Justice seat) fails in the Senate,
the President must either re-submit the nomination or choose another candidate to fill
the bench. The entire process thus begins anew. Withdrawals and rejections can
greatly increase the amount of time taken to confirm Justices to the Court.
Controversial nominees who are eventually confirmed also usually take more time
to consider. The late 1960s and early 1970s were one of the most tumultuous periods
of nominations and rejections in the Court’s history. On May 14, 1969, Justice Abe
Fortas resigned from the bench. Fortas had been embroiled in a scandal surrounding
his consulting income, and failed to win confirmation as Chief Justice when
President Johnson nominated him to the seat in 1968.27 The Senate rejected
President Richard M. Nixon’s first two nominees to the Fortas seat — Clement F.
Haynsworth, Jr. and G. Harrold Carswell.28 President Nixon’s third choice, Harry A.
Blackmun, was not confirmed until May 12, 1970 — almost a year after Fortas’s
resignation.
24 The other Associate Justices nominated for Chief Justice during the period were: Edward
D. White (1910), Harlan F. Stone (1941), and Abe Fortas (1968). As noted previously,
Justice Fortas’s nomination failed to receive Senate confirmation.
25 “Hughes, With Words That Ring, Obeys Call to Lead Republicans,” Washington Post,
June 11, 1916, p. 1.
26 Associated Press, “Byrnes Resigns From Bench in Letter to President,” New York Times,
Oct. 4, 1942, p. 45.
27 On the controversies surrounding Justice Fortas’s nomination and resignation, see Ward,
Deciding to Leave, pp. 171-175; and Philip Warden and Aldo Beckman, “Fortas Agrees to
Quit, Nixon Aide Says,” Chicago Tribune, May 15, 1969, p. 7.
28 Haynsworth and Carswell were both rejected due to Senate doubts about their personal
views and professional qualifications. For a summary of these and other cases of rejected
Supreme Court nominees, see Hogue, Supreme Court Nominations Not Confirmed, 1789-
2004.

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CRS-9
Data Presentation
Table 1 (at the end of this report) lists dates for the following events regarding
each nomination to the Supreme Court since 1900: (1) when the actual or prospective
vacancy apparently became known to the President, (2) when the President
announced the nominee, (3) when the Senate Judiciary Committee held its first
hearing on the nominee, (4) when final committee action took place, and (5) when
final Senate action took place. Table 2 presents the number of days elapsed for five
related time intervals: (1) from when the President apparently learned of the actual
or prospective vacancy to the his announcement of a new nominee, (2) from the
nomination announcement to the first Judiciary Committee hearing, (3) from the first
hearing to the committee’s final action, (4) from the committee’s final action to the
Senate’s final action, and (5) from the vacancy starting date to final Senate action.
Table 3 provides summary statistics for the number of days elapsed during each of
these intervals, in addition to the duration of total Senate action, for all nominations
from 1900 through 2005, and for two periods within those dates — 1900-1980 and
1981-2005.29 As discussed later in this report, those periods were chosen because the
data indicate a sharp difference in the pace of most nominations before and after
1980.
Date of Actual or Prospective Vacancy. As noted previously, it is often
difficult or impossible to determine the specific date that a President first knew he
would have the opportunity to name a new Justice to the Supreme Court. The
President always has the constitutional obligation to make nominations to the Court
when vacancies arise, and is certainly aware of the possibility that vacancies could
arise at any time. However, the “Actual or Prospective Vacancy Became Known to
President” columns in Tables 1 and 2 focus on documented, specific instances when
the President knew he had, or soon would have, the opportunity to name a new
Justice to the Court.30 These dates are based on extensive research about when the
Justice’s impending departure (or death) was made public, and whether the President
had advance knowledge of the vacancy before it became public. In cases in which
there is no evidence that the President had advance notice (or in which the data are
29 In Table 3, the median amount of time from vacancy to final Senate action within each
time period does not necessarily equal the sum of the medians for each stage in the
nomination-and-confirmation process. Likewise, the median length of time for all Senate
actions (i.e., from nomination announcement to final Senate action) within each time period
do not equal the sum of the medians for each stage. The median identifies the mid-point for
individual sets of observations. Because each stage of the process can have a different
number of observations, and because the data are also not a “normal” (i.e., “bell-shaped”)
distribution, the sum of the medians for individual stages generally is not equal to the
median for the entire period. For more information, see chapter 4 in Ya-lun Chou,
Statistical Analysis for Business and Economics (New York: Elsevier, 1989).
30 In Tables 1 and 2, actual vacancies are those that already have been announced or
occurred (i.e., a sitting Justice announces a retirement date or dies). Prospective vacancies,
for the purposes of this report, are not merely speculative. They require firm notice, either
through notification from a sitting Justice or major media accounts, that a Justice will leave
the Court imminently, even if an exact date is not specified.

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CRS-10
inconclusive), the date of the first public account of the vacancy marks the beginning
of the process (the “When” column in Tables 1 and 2).31
For example, Justice Sandra Day O’Connor announced her retirement, pending
confirmation of a successor, on July 1, 2005. There is no evidence that President
George W. Bush definitely knew that O’Connor would retire until her announcement.
Therefore, July 1, 2005, is used as the starting point for what became the John G.
Roberts Associate Justice nomination.32 On the other hand, although Chief Justice
Warren Burger’s retirement letter to Ronald Reagan was not released until June 17,
1986, President Reagan’s public papers reveal that Burger informed the President of
his decision to retire on May 27, 1986.33 Therefore, May 27, 1986, is used as the
starting point for what became the William H. Rehnquist elevation to Chief Justice.
Notes throughout Tables 1 and 2 provide information on historical context.
Announcement-of-Nominee Date. Unless otherwise noted, the
“President’s Announcement-of-Nominee” date in Table 1 is the day when the
President announced his nomination to the public or released the text of his
nomination letter (whichever came first). This date is significant because it marks
the Senate’s first opportunity to begin considering the nomination, even if informally.
There are a few cases, explained by table notes, in which Presidents announced their
decisions less formally, but still publicly. For example, President Harry S. Truman
casually told reporters during a July 28, 1949, press conference that he had offered
an Associate Justice nomination to then-Attorney General Thomas C. Clark, even
though Clark had not yet accepted the nomination.34 As discussed previously, in
some cases, the announcement date differs by days or even weeks from the date the
nomination was formally submitted to the Senate.
31 This report, it should be re-emphasized, bases the starting point at when Presidents
apparently learned of actual or prospective Court vacancies. These dates are based on
published information or information obtained from presidential archives. Readers should
be alerted, as a caveat, that there might well have been instances, unreported at the time as
well as still unknown to present-day scholars, in which various Presidents privately were
alerted of upcoming Court vacancies or had reasons to believe that vacancies were imminent
in advance of the starting dates listed in this report. To the extent that such instances are
unaccounted for, the full extent of time during which such Presidents were aware of
prospective Court vacancies and were able to consider future Court candidates before
publicly announcing their choices, is under-measured in this report.
32 As noted elsewhere in this report, President George W. Bush withdrew Roberts’s
nomination as Associate Justice on Sept. 5, 2005.
33 President Reagan had a private conversation with Chief Justice Burger on May 27, 1986,
when Burger alerted the President to his impending retirement (“Remarks on the
Resignation of Supreme Court Chief Justice Warren E. Burger and the Nominations of
William H. Rehnquist To Be Chief Justice and Antonin Scalia To Be an Associate Justice,”
U.S. National Archives and Records Administration, Office of the Federal Register, Public
Papers of the Presidents of the United States: Ronald Reagan, 1986, vol. 2 (Washington:
GPO, 1989) p. 781).
34 President Truman did not announce that Clark had accepted the nomination until Aug.
1, 1949 (Edward T. Folliard, “Clark Accepts High Court Proffer,” Washington Post, Aug.
2, 1949), p. 1.

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CRS-11
Use of Medians to Summarize Intervals. Table 2 provides the duration
of each major interval in the process of nominating and considering Supreme Court
Justices.35 Table 3 provides the median number of days for each major interval in
the process. The median is the middle number in a set of observations (in this case,
the number of days involved in each stage of considering Supreme Court
nominations). The median is generally the preferred measure of central tendency in
social science research.36 As statistician William H. Greene notes, “Loosely
speaking, the median corresponds more closely than the mean to the middle of a
distribution [group of numbers]. It is unaffected by extreme values.”37 In other
words, the median represents the best example of the “average” case, regardless of
extremely short or long individual confirmations.
However, in describing the speed of the Supreme Court nomination-and-
confirmation process, even median values should be considered carefully. Each
nomination is different, and political context and historical factors can have a major
impact on when various events occur. Several factors affecting individual
nominations to the Court are discussed later in this report.
The Duration of the Nomination-and-Confirmation Process
During the entire period covered by this report (1900-2005), the President and
the Senate have each taken varying amounts of time to act on Supreme Court
nominations and confirmations. As Table 3 shows, from 1900-2005, Presidents took
a median of 29 days after a vacancy occurred to announce their nominees, compared
with a median of 50 days for final Senate action once the nomination was announced.
The entire process, from actual or prospective vacancy to final Senate action, lasted
a median of 74 days from 1900-2005.
However, the amount of time involved in each stage of the nomination-and-
confirmation process varies widely when individual cases are examined. Some
Supreme Court nominations are unusually fast, coming immediately on the heels a
sitting Justice’s departure from the bench. In these cases, the President almost
certainly knew in advance of the outgoing Justice’s intention to retire yet delayed
announcement of the retirement to coincide with announcing a new nominee. For
example, on May 27, 1986, President Reagan simultaneously announced the
35 When calculating durations, the date on which the final event occurs is not counted as a
full day. For example, if committee hearings began on July 12 and the committee took its
final action on July 13, the duration is one day, not two. For cases in which durations are
less than one day (i.e., the committee final action and final Senate vote took place on the
same day), the duration is listed as 0 days.
36 Although the arithmetic mean (the sum of all observations divided by the number of
observations) is the true “average” number, it has the disadvantage of being skewed by
extremely high or low values. For an introduction to median versus mean and arguments
surrounding when each should be used, see chapter 3 in Alan Agresti and Barbara Finlay,
Statistical Methods for the Social Sciences, 3rd ed. (Upper Saddle River, NJ: Prentice Hall,
1997).
37 William H. Greene, Econometric Analysis, 5th ed. (Upper Saddle River, NJ: Prentice Hall,
2003, p. 847).

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CRS-12
retirement of Chief Justice Warren Burger, the elevation of William H. Rehnquist to
Chief Justice, and the nomination of Antonin Scalia to assume the Associate Justice
seat being vacated by Justice Rehnquist.38 On the other hand, some nomination
decisions can take months — at least to become public. For example, although
Justice Harold H. Burton submitted his retirement letter to President Dwight D.
Eisenhower on October 6, 1958, Eisenhower did not publicly announce Potter
Stewart’s nomination until January 17, 1959 — 103 days after announcing Justice
Burton’s retirement. The entire interval between Burton’s announced retirement and
Stewart’s confirmation lasted 211 days, the bulk of the interval due to a long
congressional recess.39
Changes During the Past 25 Years. The data indicate that the median
decision-making intervals surrounding Supreme Court nominations have changed
substantially in the last 25 years.40 When comparing Supreme Court nominations
from 1900-1980 with those from 1981-2005, five patterns stand out. First, after
apparently learning of vacancies, Presidents have typically been quicker to announce
nominees since 1981 than in the previous 80 years. As shown in Figure 1 (and
Table 3), from 1900-1980, Presidents took a median of 34 days to announce their
nominees after apparently learning of vacancies, compared with only 18 days from
1981-2005.
38 As previously noted, although Chief Justice Burger, by letter on June 17, 1986, officially
notified President Reagan of his desire to retire, Burger privately informed Reagan of his
plans on May 27, 1986 (“Remarks on the Resignation of Supreme Court Chief Justice
Warren E. Burger and the Nominations of William H. Rehnquist To Be Chief Justice and
Antonin Scalia To Be an Associate Justice,” U.S. National Archives and Records
Administration, Office of the Federal Register, Public Papers of the Presidents of the United
States: Ronald Reagan, 1986, vol. 2, p. 781).
39 Context provides important caveats, as is always the case when exploring median
decision-making surrounding Supreme Court nominations. President Eisenhower recess-
appointed Justice Stewart because Congress was not in session on Oct. 6, 1958 when Justice
Burton announced his retirement. The 85th Congress had adjourned sine die on Aug. 24,
1958. The President nominated Potter Stewart to the Court on Jan. 17, 1959, after Congress
had reconvened for the first session of the 86th Congress. Therefore, although the interval
between the starting date (Oct. 6, 1958, as shown in Table 1) and nomination date (Jan. 17,
1959) is 103 days, and the entire interval from the starting date until final Senate action
(May 5, 1959) is 211 days, the President’s actual decision-making timetable could also be
classified as 8 days, or the interval between Burton’s retirement announcement (Oct. 6,
1958) and Eisenhower’s recess appointment of Justice Stewart (Oct. 14, 1958). Both
intervals are used to calculate the median elapsed time from vacancy to nomination
announcement. Nonetheless, the long intervals have a minimal impact on computing the
median durations between stages in the process because the median is less sensitive than the
mean to extremely high or low values.
40 For an analysis of the decision-making speed surrounding Supreme Court nominations
between 1962-1987, see CRS Report 87-576 GOV, The Speed With Which Action Has Been
Taken on Supreme Court Nominations in the Last 25 Years, by Denis Steve Rutkus
(available from Rutkus).

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CRS-13
Figure 1. Speed in Days of Intervals Surrounding Supreme Court
Nominations and Confirmations
113
120
100
1900-1980
84
80
1981-2005
59
60
51
34
40
28
18
13
20
9
12
9
3
0
President
Nomination
First Hearing to
Final Committee
Nomination
President
Apparently
Annoucement to Committee Final
Action to Final
Announcement
Apparently
Learned of
First Hearing
Action
Senate Action
to Final Senate
Learned of
Vacancy to
Action
Vacancy to Final
Announcement
Senate Action
Source: Computations based on data compiled by the CRS authors. Some numbers are
rounded. See Table 3 for details.
Second, and perhaps most notably, the median interval between the President’s
announcement of his nominee and the first Judiciary Committee hearing was
substantially longer from 1981-2005 than from 1900-1980. As shown in Figure 1
(and Table 3), this period more than tripled — from 13 days during the 1900-1980
period to 51 days from 1981-2005. Again, however, context is important. Even
before hearings begin, the Senate can be actively working on the nomination. For
example, prior to the start of John G. Roberts’s hearings (and even before his
nomination was submitted to the Senate), Senators met privately with Judge Roberts,
and some pressed the White House to release records from Roberts’s Department of
Justice service.41 The Harriet Miers nomination has followed a similar pattern.
Senators began meeting with Ms. Miers the same day President Bush announced her
nomination.
Third, committee and floor action from 1981-2005 also took slightly longer than
prior to 1981. From 1981-2005, the Judiciary Committee took a median of 12 days
to reach a decision after starting hearings, while the interval between final committee
action and final Senate action took 9 days (compared with 9 and 3 days respectively
from 1900-1980).42
41 See, for example, Charles Babington, “Access to Records May Be a Sticking Point;
Democrats Push for Prompt Review,” Washington Post, July 28, 2005, p. A6; and Mike
Allen and Jo Becker, “A Clash Over Roberts Documents; Justice Department Balks at
Senate Democrats’ Demands,” Washington Post, Aug. 7, 2005, p. A4.
42 The actual median for the interval between committee final action and Senate action from
1981-2005 is 8.5 days, which is rounded to 9 for the purposes of this report.

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CRS-14
Fourth, as shown in Figure 1 (and Table 3), total Senate activity (the interval
between the President’s announcement of the nominee and final Senate action)
increased from a median of 28 days (1900-1980) to 84 days (1981-2005).43
Finally, the entire nomination-and-confirmation process took substantially
longer after 1980 than during the previous 80 years. The median duration for the
entire process (from when the President apparently became aware of a vacancy until
the Senate’s final action on the nomination) was almost twice as long from 1981-
2005 than during 1900-1980 (113 days versus 59 days, respectively).
Factors Influencing the Speed of the Process
Some elements of the decision-making process surrounding the naming and the
confirmation or rejection of Supreme Court nominees are known only to Presidents,
nominees, and a few select advisors. Other elements are more obvious. Each
nomination has its own political context, making each nomination somewhat
different. However, several factors appear to be relatively constant in affecting the
speed of Supreme Court nominations and Senate decisions.
How the Vacancy Occurs. How quickly the President announces his
nominee and how quickly the Senate considers that nomination can depend on how
the vacancy occurred. When Justices die unexpectedly, Presidents can be eager to
bring the Court back to full strength as soon as possible. On July 19, 1949, for
example, Justice Frank Murphy unexpectedly died of a heart attack after a brief
illness.44 President Harry S. Truman announced his nomination of Thomas C. Clark
at a press conference 9 days later, on July 28.45 The Senate also considered the
nomination quickly, beginning hearings on August 9. Clark’s entire nomination-and-
confirmation process lasted just 30 days. A few months later, Sherman Minton was
confirmed even faster — in 24 days — after the death of Justice Wiley B. Rutledge.
Nonetheless, sudden death does not guarantee that either the President or the Senate
will make nomination-and-confirmation decisions quickly. For example, when
Justice Rufus W. Peckham died unexpectedly on October 24, 1909, President
William Howard Taft waited 50 days to announce a nominee. Once Taft announced
his choice, the Senate confirmed Horace H. Lurton seven days later.
Retirements and resignations are often expected, allowing the President time to
prepare for his choice even before an official announcement that a sitting Justice will
43 The actual median for Senate action from 1900-1980 is 27.5 days, which is rounded to 28
days for the purposes of this report. Median Senate action for 1981-2005 does not include
John G. Roberts’s Chief Justice confirmation because of the ususal circumstances
surrounding the withdrawal of Roberts’s nomination for Associate Justice, and his re-
nomination for Chief Justice. The median duration for Senate action when including the
John G. Roberts Chief Justice confirmation is 81 days (rounded from 80.5) from 1981-2005.
44 For a profile of Murphy and his death, see Chicago Daily Tribune, “Justice Murphy Dies
of Heart Attack at 59,” Chicago Daily Tribune, July 20, 1949, p. 2.
45 President Truman did not announce that Clark had accepted the nomination until Aug. 1,
1949 (Edward T. Folliard, “Clark Accepts High Court Proffer, Washington Post, Aug. 2,
1949, p. 1).

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step down. For example, at the time of his retirement, Justice William O. Douglas’s
health had been so poor and abilities allegedly in such decline that seven of his fellow
Justices voted on October 17, 1975, to “effectively strip Douglas of his power” and
excluded the aging Justice from deliberations.46 By the time Justice Douglas
officially wrote to President Gerald R. Ford on November 12, 1975, announcing his
retirement, the President was prepared to act quickly. He announced the nomination
of John Paul Stevens just 16 days later. Congress, too, acted quickly, confirming
Stevens 19 days later, on December 17, 1975.
Sometimes, though, even when retirements or resignations come with advance
notice, the process moves slowly. For example, Justice Harry A. Blackmun privately
told President William J. Clinton around January 1, 1994, that he was planning to
leave the Court. Soon afterward, the White House staff began quietly considering
replacements.47 However, President Clinton did not publicly announce Justice
Blackmun’s retirement until April 6, did not publicly announce Judge Stephen G.
Breyer’s nomination until May 13, and did not formally nominate Breyer until May
17.48 The Judiciary Committee began hearings 60 days after the nomination was
announced, and the entire process surrounding Breyer’s nomination lasted 209 days.
However, decisions affecting the nomination were apparently being made even
before Blackmun’s retirement became public knowledge.
The Senate’s Schedule. Congress’s schedule, especially whether the Senate
is in session at all, plays an important role in how long Supreme Court nominations
take to reach a conclusion. In the early 1900s, several vacancies arose during
summer recess or election years when Congress was away from the Capitol. In 1910,
for example, Congress adjourned on June 25 and did not return until December 5 —
a break of more than five months.49 In the interim, Chief Justice Melville W. Fuller
died of a heart attack on July 4.50 As press coverage noted at the time, although
potential nominees were immediately considered, President William Howard Taft
waited to formally submit a nomination to the Senate until Congress reconvened.51
On December 12, five days after the Senate reconvened, President Taft announced
and formally submitted to the Senate his nomination of former Senator Edward D.
White of Louisiana to be Chief Justice. That same day, without referring the
nomination to the Judiciary Committee, the Senate quickly confirmed Senator White.
46 Justice Byron R. White disagreed with the decision. See Ward, Deciding to Leave, p. 187.
47 Tony Mauro, “How Blackmun Hid Retirement Plans,” New Jersey Law Journal, Apr. 25,
1994, p. 18.
48 U.S. National Archives and Records Administration, Office of the Federal Register,
Public Papers of the Presidents of the United States: William J. Clinton, 1994, vol. 1
(Washington: GPO, 1995), p. 597.
49 U.S. Congress, Joint Committee on Printing, 2003-2004 Official Congressional Directory:
108th Congress (Washington: GPO), p. 517
50 “Justice Fuller Dies Suddenly,” Washington Post, July 5, 1910, p. 1.
51 In addition to waiting for the Senate to return, President Taft reportedly considered more
than 200 nominees, a far more thorough process than the media predicted after Fuller’s
death (Ibid. and “White Heads Bench,” Washington Post, Dec. 13, 1910, p. 1).

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Three times during the 1950s, President Eisenhower resorted to recess
appointments when Justices died or announced their retirement after Congress had
already adjourned for the year.52 In each case, President Eisenhower formally
submitted the nomination after the Senate convened the following January. Of the
five persons whom he nominated to the Court, three first received recess
appointments and served as Justices before being confirmed — Earl Warren (as Chief
Justice) in 1953, William Brennan in 1956, and Potter Stewart in 1958. President
Eisenhower’s recess appointments, however, generated controversy, prompting the
Senate in 1960, voting closely along party lines, to pass a resolution expressing
opposition to Supreme Court recess appointments in the future.53
President Eisenhower’s actions were the most recent recess appointments to the
Supreme Court, and recess appointments to the lower federal courts also have
become relatively rare since the late 1960s. While a President’s constitutional power
to make judicial recess appointments was upheld by a federal court in 1985,54 such
appointments, when they do occur, may cause controversy, in large part because they
bypass the Senate and its “advice and consent” role. Because of the criticisms of
judicial recess appointments in recent decades, the long passage of time since the last
Supreme Court recess appointment, and the relatively short duration of contemporary
Senate recesses (which arguably undercuts the need for recess appointments to the
Court), a President in the 21st century might be expected to make a recess
appointment to the Supreme Court only under the most unusual of circumstances.55
52 The discussion of recess appointments in the following two paragraphs is adapted from
Rutkus, Supreme Court Appointments Process, pp. 15-17.
53 Adopted by the Senate on Aug. 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.” Proponents of the resolution
contended, among other things, that judicial independence would be affected if Supreme
Court recess appointees, during the probationary period of their appointment, took positions
to please the President (in order not to have the President withdraw their nominations) or
to please the Senate (in order to gain confirmation of their nominations). It also was argued
that Senate investigation of nominations of these recess appointees was made difficult by
the oath preventing sitting Justices from testifying about matters pending before the Court.
Opponents, however, said, among other things, that the resolution was an attempt to restrict
the President’s constitutional recess appointment powers and that recess appointments were
sometimes called for in order to keep the Court at full strength and to prevent evenly split
rulings by its members. See “Opposition to Recess Appointments to the Supreme Court,”
debate in the Senate on S.Res. 334, Congressional Record, vol. 106, Aug. 29, 1960, pp.
18130-18145. See also CRS Report RL31112, Recess Appointments of Federal Judges, by
Louis Fisher, pp. 16-18.
54 U.S. v. Woodley, 751 F.2d 1008 (9th Cir. 1985).
55 A notable, relatively recent instance in which the possibility of a recess appointment to
the Supreme Court was raised occurred on July 28, 1987, when Senate Minority Leader
Robert Dole observed that President Reagan had the constitutional prerogative to recess
appoint U.S. appellate court judge Robert H. Bork to the Court. Earlier that month Judge
Bork had been nominated to the Court, and at the time of Senator Dole’s statement, the
chair of Senate Judiciary Committee, Sen. Joseph R. Biden, Jr. had scheduled confirmation
(continued...)

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Today, Congress’s availability is less of an obstacle to speedy consideration of
nominations than in the past. Given Congress’s increasingly year-round schedule,
extended decision-making is more often the result of waiting for presidential
decisions, background investigations of nominees, or preparations for Judiciary
Committee hearings.
Committee Involvement and Institutional Customs. Today, it would
be highly unusual for the Judiciary Committee not to hold Supreme Court
confirmation hearings lasting at least a few days. In the past, however, the Judiciary
Committee often handled Supreme Court nominations without holding hearings at
all. As Table 1 shows, of the 22 nominees to the Court from 1900 to 1937, only
three had Judiciary Committee hearings (Louis D. Brandeis in 1916, Harlan F. Stone
in 1925, and John J. Parker in 1930 (whose nomination was eventually rejected)).
In contrast, of the 41 nominees after 1937, only three did not have hearings.56
Nominees did not begin regularly testifying at their own hearings until John M.
Harlan did so in 1955.57
When the Judiciary Committee holds hearings, Senate floor consideration can
be pushed back sometimes by weeks or even months. Controversial nominees often
spur protracted hearings. For example, the Judiciary Committee spent 19 days
considering Justice Louis D. Brandeis’s nomination in 1916, and the interval between
the start of hearings and final committee action lasted 105 days. The final Senate
vote came eight days later. More recently, the Judiciary Committee, after learning
of President Ronald Reagan’s selection of Robert H. Bork, took 76 days to hold its
first day of hearings on the nomination, and then 21 more days to conclude action on
the nomination.
Senate custom plays an especially large role when sitting or former Senators are
nominated to the Court. The Senate has almost always considered their colleagues’
nominations to the Court within days of receiving the nomination, often without
55 (...continued)
hearings to begin on September 15. With various Republican Senators accusing Senate
Democrats of delaying the Bork hearings, Senator Dole offered as “food for thought” the
possibility of President Reagan recess appointing Judge Bork during Congress’s August
recess. See Michael Fumento, “Reagan Has Power To Seat Bork While Senate Stalls:
Dole,” Washington Times, July 28, 1987, p. A3; also, Edward Walsh, “Reagan’s Power To
Make Recess Appointment Is Noted,” Washington Post, July 28, 1987, p. A8. Judge Bork,
however, did not receive a recess appointment and, as a Supreme Court nominee, was
rejected by the Senate in a 58-42 vote on Oct. 23, 1987.
56 This number does not include instances such as the John G. Roberts Associate Justice
nomination, in which the Judiciary Committee did not have the opportunity to hold hearings.
Hearings before the Judiciary Committee were dispensed with for three nominees: Frank
Murphy in 1939, James F. Byrnes in 1941, and Harold H. Burton in 1945, all of whom had
prior service in high public office. Murphy had previously served as Governor of Michigan
and U.S. Attorney General. Byrnes was a sitting Senator from South Carolina when
nominated to the Court. Harold H. Burton was a Senator from Ohio. (Biographical
information obtained from the Federal Judicial Center’s Federal Judges Biographical
Database, available at [http://www.fjc.gov/public/home.nsf/hisj]).
57 See Rutkus, Supreme Court Appointment Process, pp. 17-18.

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CRS-18
committee hearings or floor debate.58 For example, although President Taft waited
five months to nominate Edward D. White (a former Senator from Louisiana) for
Chief Justice, the Senate confirmed the nomination with no debate in less than one
hour.59 Since 1900, three sitting Senators — Hugo L. Black of Alabama (1937),
James F. Byrnes of South Carolina (1941), and Harold H. Burton of Ohio (1945) —
have been nominated to the Court, and all were quickly confirmed.60 Senators
George Sutherland of Utah (1922) and Sherman Minton of Indiana (1949) were
nominated to the Court after having concluded their Senate service. Sutherland was
confirmed on the same day on which President Warren Harding announced the
nomination, and Minton was confirmed in 19 days.
The decades since 1945 have yet to test again the Senate tradition of bypassing
the Judiciary Committee when the Supreme Court nominee is a sitting U.S. Senator;
no President since then has nominated a sitting Senator. The last former Senator to
be nominated to the Court, in 1949, was Judge Sherman Minton of Indiana. (After
defeat for re-election to the Senate in 1940, he had been appointed by President
Franklin D. Roosevelt to a federal appellate court judgeship.) In a break with
tradition, the Supreme Court nomination of former Senator Minton was referred to
the Judiciary Committee, and Senate confirmation followed the day after the
committee approved the nomination.
Controversial Nominations. As noted previously, withdrawn, rejected, or
controversial nominations can substantially lengthen the process. In these cases,
although Presidents often name nominees fairly quickly, consideration of the
nominations can be drawn out in the Senate. During Judge Robert H. Bork’s
controversial nomination, for example, Senate consideration of Bork lasted more than
a month, from the first Judiciary Committee hearing on September 15, 1987, until the
Senate’s floor vote to reject the nomination on October 23, 1987. The entire process
— from President Reagan’s announcement of his intention to nominate Bork to
Senate rejection — took 119 days.
Controversy can also delay confirmation of nominees who are ultimately
successful. Despite a relatively quick nomination-and-confirmation process of 42
days in late 1924 and early 1925 for then-Attorney General Harlan F. Stone, his
nomination was temporarily set back when it was recommitted to the Senate
Judiciary Committee, apparently because of Stone’s investigation as Attorney
General of Senator Burton K. Wheeler.61 More recently, although Judge Clarence
58 For additional background information on Senators giving current or former colleagues
deference when nominated to the Court, see Rutkus, Supreme Court Appointments Process,
pp. 17-18.
59 “White Heads Bench,” Washington Post, Dec. 13, 1910, p. 1.
60 Senators Burton and Byrnes’s nominations were not referred to the Judiciary Committee.
Sen. Black’s nomination was referred to the committee, which recommended his
confirmation, although by a divided 13-4 vote.
61 On Stone’s testimony before the Judiciary Committee regarding the investigation, see
Albert W. Fox, “Stone Tells Senate Committee He Assumes Full Responsibility For
(continued...)

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CRS-19
Thomas narrowly won confirmation in 1991, nominating and confirming him took
110 days, including a second round of Judiciary Committee hearings surrounding law
professor Anita Hill’s allegations against Thomas of sexual harassment.
Discussion and Conclusions
Understanding how long the previous Supreme Court nomination-and-
confirmation process has taken, and what factors affected that schedule, can provide
useful perspective on presidential decision-making and the Senate’s preparations for
future nominations. While Presidents and supporters of nominees want Justices
confirmed quickly, some Senators will continue to emphasize their right to consider
nominees carefully and their responsibility to hold sufficient hearings. Against that
political backdrop, this report demonstrates that the length of time required to
nominate and confirm or reject a nominee varies widely. Even median durations
must be interpreted cautiously. The context surrounding each nomination is
particularly important in understanding how long the process takes.
Given the advanced ages of some members of the current Court, more vacancies
in the near future are widely anticipated. Should those vacancies occur unexpectedly,
such as with a sudden retirement or death, the Court could well be operating without
a full bench — making the timing of nominations and confirmations even more
pressing. In such a scenario, the Senate would likely be under intense pressure to
confirm a successor quickly. This report indicates that, from 1900-1980, the
President’s portion of the process took longer than the Senate’s. Since 1981, though,
there has been a substantial increase in the median duration between the President’s
announcement of a nominee and the start of Judiciary Committee hearings. As a
result, the Senate’s portion of the process has taken longer than the President’s.
Prior to 1981, lengthy nomination-and-confirmation processes usually occurred
because either the Senate was out of session when a vacancy on the Court arose, or
the nomination was controversial. In recent decades, by contrast, slower decision-
making has taken place during an era when Congress is in session longer than during
the early 20th century.
In the last 25 years, the nomination-and-confirmation process has lasted a
median of 113 days — almost twice as long as the 59-day median from 1900-1980.
Although the data in Tables 1-3 provide a median measure of the process, political
context is an essential backdrop for understanding the numbers. The President and
the Senate share decision-making responsibilities for placing new Justices on the
Court. Ultimately, the choices each institution makes determine how long
nominations and confirmations take.
One possible explanation for the paradox of slower decisions despite more time
in session is that, as some critics on both sides of the aisle contend, Supreme Court
61 (...continued)
Pressing New Wheeler Case,” Washington Post, Jan. 29, 1925, p. 1.

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CRS-20
nominations have become battlegrounds for larger political debates.62 Another
possibility is that the Senate is considering nominations more carefully than in the
past, and therefore taking more time to make decisions about nominees. Similarly,
the Senate might be using longer decision-making and scrutiny of nominees as a
method of counterbalancing presidential power, especially when Senators believe that
the President has chosen an unqualified nominee.
Some early 20th century appointments to the Supreme Court were confirmed
within days of a vacancy occurring. More recent nominations and confirmations, by
contrast, typically have taken several weeks or months. How and when a vacancy
occurs, the Senate’s schedule, Judiciary Committee involvement, institutional
customs, and whether or not the nomination is controversial, all affect the speed with
which the President nominates, and the Senate passes judgment, on prospective
Justices.
The Miers Nomination. President Bush and the Senate majority leader have
called for the Senate to confirm Harriet Miers as the next Associate Justice of the
Supreme Court by Thanksgiving — by November 24, 2005, which will be 52
calendar days after her nomination was announced by the President on October 3.
Senator Arlen Specter, Chairman of the Senate Judiciary Committee, reportedly also
expressed hope for quick action on the Miers nomination, calling for hearings to be
concluded before Thanksgiving.
The Senate has acted with that general degree of speed on one Supreme Court
nomination (other than the highly unusual circumstances surrounding Chief Justice
Roberts’s confirmation) during the past 25 years. After President Clinton announced
Ruth Bader Ginsburg’s nomination to the Court on June 14, 1993, the Judiciary
Committee began hearings 36 days later, on July 20, 1993. The entire Senate portion
of action on Ginsburg’s nomination lasted 50 days (from President Clinton’s
announcement of the nomination on June 14 until the Senate vote confirming
Ginsburg on August 3, 1993). If Harriet Miers’s nomination followed a similar path,
Judiciary Committee hearings would start around November 8 (36 days after
President Bush’s October 3 announcement of Ms. Miers’s nomination), with final
Senate action occurring around November 22, 2005 (50 days after the October 3
announcement of Ms. Miers’s nomination).
However, as discussed previously and as shown in Figure 1 (and Table 3),
Senate consideration of all Supreme Court nominations since 1980 has generally
taken much longer. From 1981-2005, the Judiciary Committee began confirmation
hearings a median of 51 days after presidential announcement of the nomination.
The median amount of time for total Senate consideration of Supreme Court
62 On increasingly controversial judicial nominations, see chapter 4 in Walter F. Murphy,
C. Herman Pritchett, and Lee Epstein, Courts, Judges, & Politics: An Introduction to the
Judicial Process, 5th ed. (Boston: McGraw Hill, 2002); [Thomas O. Sargentich, Paul D.
Carrington, Barbara E. Reed, Charles Gardner Geyh, and Erwin Chemerinsky], Uncertain
Justice: Politics and America’s Courts: The Reports of the Task Forces of Citizens for
Independent Courts (New York: The Century Foundation, 2000); and Mark Silverstein,
Judicious Choices: The New Politics of Supreme Court Confirmations (New York: W.W.
Norton & Company, 1994).

---

CRS-21
nominations (from announcement of the nomination to final Senate action) during
the period was 84 calendar days.63 Therefore, if Senate action on the Miers
nomination followed the norm of all other nominations during the past 25 years (i.e.,
final action in 84 calendar days), the Senate would complete its deliberations
regarding the nomination on or about December 26, 2005. The Senate usually
adjourns by mid-December, but on rare occasions, extends its session into the new
year.
63 The median durations for Senate action shown in Figure 1 and listed in Table 3 do not
include the nomination of John G. Roberts as Chief Justice because of the unprecedented
circumstances surrounding the nomination. His nomination as Associate Justice was
withdrawn, and he was nominated for the Chief Justice position just before the start of his
Associate Justice hearing, making the interval between the announcement and first hearing
period unusually brief. Had his nomination as Associate Justice proceeded as scheduled,
the total amount of time for Senate consideration (from announcement to final Senate
action) would have been about 71 days. The median duration for Senate consideration when
including the John G. Roberts Supreme Court confirmation is 81 days (rounded from the
actual median of 80.5), compared with 84 days when not including Chief Justice Roberts’s
confirmation.

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CRS-22
Table 1. Major Events in the Supreme Court Nomination-and-Confirmation Process, 1900-2005
Nominating
Outgoing
Actual or Prospective Vacancy
President’s Announcement
Senate Action Dates on Nomination
President
Justice
Apparently Became Known to
of Nominee
President
When
How
Nominee
Date
First
Committee
Senate Final
Hearing
Final Action
Action
Theodore
Horace Gray
09/15/1902
Death of
Oliver
12/02/1902
No record of
12/04/1902
12/04/1902
Roosevelt
outgoing
Wendell
hearing
Holmes
Theodore
George Shiras,
08/20/1902a
Public reports
William R.
01/14/1903b
No record of
02/23/1903
02/23/1903
Roosevelt
Jr.
of imminent
Day
hearing
retirement
Theodore
Henry B.
03/08/1906c
Outgoing
William H.
11/07/1906
No record of
12/10/1906
12/12/1906
Roosevelt
Brown
Justice notified
Moody
hearing
President of
intention to
retired
William
Rufus W.
10/24/1909
Death of
Horace H.
12/13/1909e
No record of
12/16/1909
12/20/1909
Howard Taft
Peckham
outgoing Justice
Lurton
hearing
William
David J.
3/28/1910
Death of
Charles
4/25/1910
No record of
05/02/1910
05/02/1910
Howard Taft
Brewer
outgoing Justice
Evans
hearing
Hughes

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CRS-23
Nominating
Outgoing
Actual or Prospective Vacancy
President’s Announcement
Senate Action Dates on Nomination
President
Justice
Apparently Became Known to
of Nominee
President
When
How
Nominee
Date
First
Committee
Senate Final
Hearing
Final Action
Action
William
Melville W.
07/04/1910 Death
of
Edward D.
12/12/1910
Nomination was not referred to
12/12/1910
Howard Taft
Fuller
outgoing Chief
White
Judiciary Committee
Chief Justice
Justice
William
Edward D.
12/12/1910
Justice Edward
Willis Van
12/12/1910
No record of
12/15/1910
12/15/1910
Howard Taft
White
D. White
Devanter
hearing
nomination to
be Chief Justice
William
William H.
06/15/1910f
Congressional
Joseph R.
12/12/1910
No record of
12/15/1910
12/15/1910
Howard Taft
Moody
action
Lamar
hearing
authorizing
retirement
William
John Marshall
10/14/1911 Death
of
Mahlon
02/19/1912
No record of
03/04/1912
03/13/1912
Howard Taft
Harlan
outgoing Justice
Pitney
hearing
Woodrow
Horace H.
07/12/1914
Death of
James C.
08/19/1914g
No record of
08/24/1914
08/29/1914
Wilson
Lurton
outgoing Justice
McReynolds
hearing

---

CRS-24
Nominating
Outgoing
Actual or Prospective Vacancy
President’s Announcement
Senate Action Dates on Nomination
President
Justice
Apparently Became Known to
of Nominee
President
When
How
Nominee
Date
First
Committee
Senate Final
Hearing
Final Action
Action
Woodrow
Joseph R.
01/02/1916
Death of
Louis D.
01/28/1916
02/09/1916
05/24/1916
06/01/1916
Wilson
Lamar
outgoing Justice
Brandeis
Woodrow
Charles Evans
06/10/1916h
Resignation
John H.
07/14/1916
No record of
07/24/1916
07/24/1916
Wilson
Hughes
letter submitted
Clarke
hearing
to President
Warren Harding
Edward D.
05/19/1921
Death of
William
06/30/1921
Nomination was not referred to
06/30/1921
White
outgoing Justice
Howard Taft
Judiciary Committee
Warren Harding
John H. Clarke
09/05/1922
Resignation
George
09/05/1922
Nomination was not referred to
09/05/1922
letter submitted
Sutherland
Judiciary Committee
to President

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CRS-25
Nominating
Outgoing
Actual or Prospective Vacancy
President’s Announcement
Senate Action Dates on Nomination
President
Justice
Apparently Became Known to
of Nominee
President
When
How
Nominee
Date
First
Committee
Senate Final
Hearing
Final Action
Action
Warren Harding
William R.
09/05/1922i
Public reports
Pierce Butler
11/23/1922
No record of
11/28/1922
Placed on
Day
of imminent
hearing
Executive
retirement
Calendar on
11/28/1922,
with
no record of
further actionj
12/04/1922
Lack of action
No record of
12/18/1922
12/21/1922
on first
Pierce Butler
12/05/1922
hearing
nomination of
Butler
Warren Harding
Mahlon Pitney
12/16/1922
White House
Edward T.
01/09/1923l
No record of
01/29/1923
01/29/1923
announced
Sanford
hearing
forthcoming
retirementk

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CRS-26
Nominating
Outgoing
Actual or Prospective Vacancy
President’s Announcement
Senate Action Dates on Nomination
President
Justice
Apparently Became Known to
of Nominee
President
When
How
Nominee
Date
First
Committee
Senate Final
Hearing
Final Action
Action
Calvin
Joseph
12/25/1924m
Public reports
Harlan F.
01/05/1925
01/28/1925
01/21/1925
Recommitted
Coolidge
McKenna
of
Stone
01/26/1925
forthcoming
retirement
02/02/1925
02/05/1925
Herbert Hoover
William
02/03/1930
Retirement
Charles
02/03/1930
No record of
02/10/1930
02/13/1930
Howard Taft
letter
Evans
hearing
Chief Justice
submitted to
Hughes
President
Herbert Hoover
Edward T.
03/08/1930
Death of
John J.
03/21/1930
04/05/1930
04/17/1930
Rejected
Sanford
outgoing Justice
Parker
05/07/1930
Herbert Hoover
Edward T.
05/07/1930
Parker
Owen J.
05/09/1930
No record of
05/19/1930
05/20/1930
Sanford
nomination
Roberts
hearing
rejected by
Senate
Herbert Hoover
Oliver
01/12/1932
Retirement
Benjamin N.
02/15/1932
No record of
02/23/1932
02/24/1932
Wendell
letter
Cardozo
hearing
Holmes, Jr.
submitted to
President

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CRS-27
Nominating
Outgoing
Actual or Prospective Vacancy
President’s Announcement
Senate Action Dates on Nomination
President
Justice
Apparently Became Known to
of Nominee
President
When
How
Nominee
Date
First
Committee
Senate Final
Hearing
Final Action
Action
Franklin D.
Willis Van
05/18/1937n
Retirement
Hugo L.
08/12/1937
No record of
08/16/1937
08/17/1937
Roosevelt
Devanter
letter submitted
Black
hearing
to
President
Franklin D.
George
01/05/1938
Retirement
Stanley F.
01/15/1938o
01/20/1938
01/24/1938
01/25/1938
Roosevelt
Sutherland
letter submitted
Reed
to
President
Franklin D.
Benjamin N.
07/09/1938p
Death of
Felix
01/05/1939
01/07/1939
01/16/1939
01/17/1939
Roosevelt
Cardozo
outgoing Justice
Frankfurter
Franklin D.
Louis D.
02/13/1939q
Retirement
William O.
03/20/1939
03/24/1939
03/27/1939
04/04/1939
Roosevelt
Brandeis
letter submitted
Douglas
to
President
Franklin D.
Pierce Butler
11/16/1939
Death of
Frank
01/04/1940
No record of
01/15/1940
01/16/1940
Roosevelt
outgoing Justice
Murphy
hearing

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CRS-28
Nominating
Outgoing
Actual or Prospective Vacancy
President’s Announcement
Senate Action Dates on Nomination
President
Justice
Apparently Became Known to
of Nominee
President
When
How
Nominee
Date
First
Committee
Senate Final
Hearing
Final Action
Action
Franklin D.
James Clark
01/22/1941
Outgoing
James F.
06/12/1941
Nomination was not referred to
06/12/1941
Roosevelt
McReynolds
Justice notified
Byrnes
Judiciary Committee
President of
intention to
retire r
Franklin D.
Charles Evans
06/02/1941s
Retirement
Harlan F.
06/12/1941
06/21/1941
06/23/1941
06/27/1941
Roosevelt
Hughes
letter submitted
Stone
Chief Justice
to
President
Franklin D.
Harlan F.
06/12/1941
Harlan F. Stone
Robert H.
06/12/1941
06/21/1941
06/30/1941
07/07/1941
Roosevelt
Stone
nomination to
Jackson
be
Chief Justice
Franklin D.
James F.
10/03/1942t
Byrnes
Wiley B.
01/11/1943
01/22/1943
02/01/1943
02/08/1943
Roosevelt
Byrnes
appointment to
Rutledge
other public
office

---

CRS-29
Nominating
Outgoing
Actual or Prospective Vacancy
President’s Announcement
Senate Action Dates on Nomination
President
Justice
Apparently Became Known to
of Nominee
President
When
How
Nominee
Date
First
Committee
Senate Final
Hearing
Final Action
Action
Harry S.
Owen J.
06/30/1945u
Retirement
Harold H.
09/18/1945
No record of
09/19/1945
09/19/1945
Truman
Roberts
letter submitted
Burton
hearing
to
President
Harry S.
Harlan F.
04/22/1946
Death of
Fred M.
06/06/1946
06/14/1946
06/19/1946
06/20/1946
Truman
Stone
outgoing Chief
Vinson
Chief Justice
Justice
Harry S.
Frank Murphy
07/19/1949
Death of
Thomas C.
07/28/1949
08/09/1949
08/12/1949
08/18/1949
Truman
outgoing Justice
Clark
Harry S.
Wiley B.
09/10/1949
Death of
Sherman
09/15/1949
09/27/1949
10/03/1949
10/4/1949
Truman
Rutledge
outgoing Justice
Minton
Dwight D.
Fred M.
09/08/1953 Death
of
Earl Warren
Recess appointment, 10/02/1953
Eisenhower
Vinson
outgoing Chief
Chief Justice
Justice
01/11/1954
02/02/1954
02/24/1954
03/01/1954

---

CRS-30
Nominating
Outgoing
Actual or Prospective Vacancy
President’s Announcement
Senate Action Dates on Nomination
President
Justice
Apparently Became Known to
of Nominee
President
When
How
Nominee
Date
First
Committee
Senate Final
Hearing
Final Action
Action
Dwight D.
Robert H.
10/09/1954
Death of
John
11/08/1954v
No record of hearing,
Eisenhower
Jackson
outgoing Justice
Marshall
committee vote, or Senate vote
Harlan II
01/05/1955
Lack of action
John
01/10/1955
02/24/1955
03/10/1955
03/16/1955
(Congress
on first
Marshall
reconvenes)
nomination of
Harlan II
Harlan
nomination
Dwight D.
Sherman
09/07/1956
Retirement
William J.
Recess appointment, 10/15/1956
Eisenhower
Minton
letter submitted
Brennan
to
01/14/1957
02/27/1957
03/04/1957
03/19/1957
President
Dwight D.
Stanley F.
01/31/1957
Press
Charles E.
03/02/1957
03/18/1957
03/18/1957
03/19/1957
Eisenhower
Reed
conference held
Whittaker
by Reed
announcing
retirementw

---

CRS-31
Nominating
Outgoing
Actual or Prospective Vacancy
President’s Announcement
Senate Action Dates on Nomination
President
Justice
Apparently Became Known to
of Nominee
President
When
How
Nominee
Date
First
Committee
Senate Final
Hearing
Final Action
Action
Dwight D.
Harold H.
10/06/1958
Retirement
Potter
Recess Appointment, 10/14/1958
Eisenhower
Burton
letter submitted
Stewart
to
01/17/1959
04/09/1959
04/20/1959
05/05/1959
President
John F.
Charles E.
03/28/1962
Retirement
Byron R.
03/30/1962y
04/11/1962
04/11/1962
04/11/1962
Kennedy
Whittaker
letter received
White
by
Presidentx
John F.
Felix
08/28/1962z
Retirement
Arthur J.
08/29/1962
09/11/1962
09/25/1962
09/25/1962
Kennedy
Frankfurter
letter submitted
Goldberg
to
President
Lyndon B.
Arthur J.
07/20/1965
Goldberg
Abe Fortas
07/28/1965bb
08/05/1965
08/10/1965
08/11/1965
Johnson
Goldberg
appointment to
other public
officeaa

---

CRS-32
Nominating
Outgoing
Actual or Prospective Vacancy
President’s Announcement
Senate Action Dates on Nomination
President
Justice
Apparently Became Known to
of Nominee
President
When
How
Nominee
Date
First
Committee
Senate Final
Hearing
Final Action
Action
Lyndon B.
Thomas C.
02/28/1967
Outgoing
Thurgood
06/13/1967dd
07/13/1967
08/03/1967
08/30/1967
Johnson
Clark
Justice notified
Marshall
President of
intention to
retirecc
Lyndon B.
Earl Warren
06/13/1968ee
Retirement
Abe Fortas
06/26/1968
07/11/1968
09/26/1968
10/01/1968
Johnson
Chief Justice
letter submitted
(Cloture
to
motion
President
rejected)
Lyndon B.
Abe Fortas
06/26/1968ff
Fortas
Homer
06/26/1968
07/11/1968
No record of
Nomination
Johnson
nomination to
Thornberry
committee
withdrawn by
be
vote
President,
Chief Justice
10/04/1968

---

CRS-33
Nominating
Outgoing
Actual or Prospective Vacancy
President’s Announcement
Senate Action Dates on Nomination
President
Justice
Apparently Became Known to
of Nominee
President
When
How
Nominee
Date
First
Committee
Senate Final
Hearing
Final Action
Action
Richard M.
Earl Warren
01/20/1969gg
Fortas Chief
Warren E.
05/21/1969
06/03/1969
06/03/1969
06/09/1969
Nixon
Chief Justice
Justice
Burger
nomination
withdrawn by
President
Johnson
(10/04/1968)

---

CRS-34
Nominating
Outgoing
Actual or Prospective Vacancy
President’s Announcement
Senate Action Dates on Nomination
President
Justice
Apparently Became Known to
of Nominee
President
When
How
Nominee
Date
First
Committee
Senate Final
Hearing
Final Action
Action
Richard M.
Abe Fortas
05/14/1969
Resignation
Clement F.
08/18/1969hh
09/16/1969
10/09/1969
11/21/1969
Nixon
letter submitted
Haynsworth,
(Rejected)
to President
Jr.
11/21/1969
Haynsworth
G. Harrold
01/19/1970
01/27/1970
02/16/1970
04/08/1970
nomination
Carswell
(Rejected)
rejected by
Senate
04/08/1970
Carswell
Harry A.
04/14/1970
04/29/1970
05/06/1970
05/12/1970
nomination
Blackmun
rejected by
Senate
Richard M.
Hugo L. Black
09/17/1971
Retirement
Lewis F.
10/21/1971
11/03/1971
11/23/1971
12/06/1971
Nixon
letter submitted
Powell, Jr.
to
President

---

CRS-35
Nominating
Outgoing
Actual or Prospective Vacancy
President’s Announcement
Senate Action Dates on Nomination
President
Justice
Apparently Became Known to
of Nominee
President
When
How
Nominee
Date
First
Committee
Senate Final
Hearing
Final Action
Action
Richard M.
John Marshall
09/23/1971
Retirement
William H.
10/21/1971
11/03/1971
11/23/1971
12/10/1971
Nixon
Harlan II
letter submitted
Rehnquist
to
President
Gerald R. Ford
William O.
11/12/1975ii
Retirement
John Paul
11/28/1975jj
12/8/1975
12/11/1975
12/17/1975
Douglas
letter submitted
Stevens
to
President
Ronald Reagan
Potter Stewart
05/18/1981kk
Retirement
Sandra Day
07/07/1981ll
09/09/1981
09/15/1981
09/21/1981
letter submitted
O’Connor
to
President
Ronald Reagan
Warren E.
05/27/1986mm
Chief Justice
William H.
06/17/1986
07/29/1986
08/14/1986
09/17/1986
Burger
privately
Rehnquist
Chief Justice
alerted
President of
intention to
retire

---

CRS-36
Nominating
Outgoing
Actual or Prospective Vacancy
President’s Announcement
Senate Action Dates on Nomination
President
Justice
Apparently Became Known to
of Nominee
President
When
How
Nominee
Date
First
Committee
Senate Final
Hearing
Final Action
Action
Ronald Reagan
William H.
05/27/1986nn
Rehnquist
Antonin
06/17/1986
08/05/1986
08/14/1986
09/17/1986
Rehnquist
nomination by
Scalia
Reagan to be
Chief Justice
Ronald Reagan
Lewis F.
06/26/1987oo
Press
Robert H.
07/01/1987
09/15/1987
10/06/1987
10/23/1987
Powell, Jr.
conference held
Bork
(Rejected)
by Powell
announcing
retirement
10/23/1987
Bork
Douglas H.
10/29/1987
Ginsburg withdrew (11/07/1987)
nomination
Ginsburg
before official nominationpp
rejected by
Senate
11/07/1987
Ginsburg
Anthony M.
11/11/1987
12/14/1987
01/27/1988
02/03/1988
withdrawal
Kennedy

---

CRS-37
Nominating
Outgoing
Actual or Prospective Vacancy
President’s Announcement
Senate Action Dates on Nomination
President
Justice
Apparently Became Known to
of Nominee
President
When
How
Nominee
Date
First
Committee
Senate Final
Hearing
Final Action
Action
George H.W.
William J.
07/20/1990
Retirement
David H.
07/23/1990qq
09/13/1990
09/27/1990
10/02/1990
Bush
Brennan
letter submitted
Souter
to
President
George H.W.
Thurgood
06/27/1991
Retirement
Clarence
07/01/1991
09/10/1991
09/27/1991
10/15/1991
Bush
Marshall
letter submitted
Thomas
to
President
William J.
Byron R.
03/19/1993rr
Retirement
Ruth Bader
06/14/1993ss
07/20/1993
07/29/1993
08/03/1993
Clinton
White
letter submitted
Ginsburg
to
President
William J.
Harry A.
01/01/1994tt
Justice privately
Stephen G.
05/13/1994
07/12/1994
07/19/1994
07/29/1994
Clinton
Blackmun
alerted
Breyer
President of
forthcoming
retirement

---

CRS-38
Nominating
Outgoing
Actual or Prospective Vacancy
President’s Announcement
Senate Action Dates on Nomination
President
Justice
Apparently Became Known to
of Nominee
President
When
How
Nominee
Date
First
Committee
Senate Final
Hearing
Final Action
Action
George W.
Sandra Day
07/01/2005
Retirement
John G.
07/19/2005
Nomination
Nomination
Nomination
Bush
O’Connor
letter submitted
Roberts
withdrawn
withdrawn by
withdrawn by
to President
by President
President
President
(09/05/2005)
(09/05/2005),
(09/05/2005),
re-nominated re-nominated as
re-nominated
as Chief
Chief
as Chief
Justice
Justice
Justice
(09/05/2005)
(09/05/2005)
(09/05/2005)
09/05/2005
Announcement
Harriet E.
10/03/2005
of Roberts
Miers
nomination
withdrawal and
re-submission
by President
George W.
William H.
09/03/2005
Death of
John G.
09/05/2005
09/12/2005
09/22/2005
09/29/2005
Bush
Rehnquist
outgoing Justice
Roberts
Sources: As described in the text, this research relied on historical newspapers, official presidential papers, and CRS correspondence with Presidential Libraries. Ward’s Deciding
to Leave was especially useful in compiling data on the reasons why Justices left the bench. Additional source information appears in the table notes below.

---

CRS-39
a. It is unclear when President Theodore Roosevelt learned of Justice Shiras’s intention to retire. However, Washington Post coverage suggests that Shiras’s forthcoming departure
was well known in Washington, DC by at least Aug. 20, 1902 (“Knox May Not Want It: Belief that He Would Decline Justice Shiras’s Position,” Washington Post, Aug. 20,
1902, p. 1).
b. President Roosevelt did not formally announce Day’s nomination until Feb. 19, 1903. However, the Washington Post reported as early as Jan. 14, 1903 that President Roosevelt
had already offered Day the nomination, after William Howard Taft declined the offer in favor of continuing his position as Civil Governor of the Philippine Islands (“Declined
by Taft,” Washington Post, Jan. 14, 1903, p. 1).
c. According to the Washington Post, Justice Brown notified the President, on Mar. 8, 1906, that he wished to retire (“To Leave the Bench: Justice Brown Will Retire in the Fall,”
Washington Post, Mar. 8, 1906, p. 3).
d. It is unclear from the historical record whether the President learned of Justice Brown’s desire to retire by letter, personal conversation, etc.
e. Despite the delay between Justice Peckham’s death and President William Howard Taft’s nomination of Horace H. Lurton, President Taft, in nominating Lurton, was reportedly
“adhering to his original purpose to promote Judge Lurton, whom he has known for years, and with whom he served on the bench,” (“Taft Names Lurton,” Washington Post,
Dec. 14, 1909, p. 3).
f. Justice Moody did not actually depart the Court until Nov. 20, 1910 (Ward, Deciding to Leave, p. 5). However, “Illness of a serious nature has kept Justice Moody from his duties
in the Supreme Court for almost a year. There have been occasional rumors of retirement, but Senator Lodge [on June 15, 1910] presented the real harbinger of that action, in
the form of a bill extending the statute relating to retirement from the Supreme Court to cover the case of Mr. Moody” (“Moody Will Retire,” Washington Post, June 15, 1910,
p. 1).
g. Although Justice McReynolds’s nomination was not announced until Aug. 20, 1914, the Washington Post reported on Aug. 19 that President Woodrow Wilson had “definitely
decided” on McReynolds (“Picks M’Reynolds,” Washington Post, Aug. 19, 1914, p. 1), thereby informally alerting Congress to the President’s choice.
h. On June 10, 1916, Justice Hughes resigned to pursue the 1916 Republican presidential nomination (“Hughes, With Words That Ring, Obeys Call to Lead Republicans,” Washington
Post, June 11, 1916, p. 1). Although historical media research does not indicate that President Wilson knew for certain that Justice Hughes would resign, media reports had hinted
at a Hughes resignation throughout the spring of 1916.
i. Day did not leave the Court until Nov. 13, 1922. However, the Washington Post reported that Day’s consideration of retirement was mentioned at a White House briefing on Sept.
5, 1922 (“Justice Day May Leave the Bench,” Washington Post, Sept. 6, 1922, p. 1).
j. After the Senate took no final action on Butler’s nomination by the end of the third session of the 67th Congress on Dec. 4, 1922, President Warren Harding re-nominated Butler on
Dec. 5, 1922. See “Fight Over Butler’s Nomination Forecast,” Washington Post, Dec. 6, 1922, p. 12; and “Fight Against Butler Opened by Shipstead,” Washington Post, Dec.
9, 1922, p. 2.
k. Although Justice Pitney’s resignation was effective as of Dec. 31, 1922, the White House announced Pitney’s forthcoming departure on Dec. 16, 1922 ( “Resigns,” Chicago Daily
Tribune, Dec. 17, 1922, p. 17).
l. President Warren Harding did not officially nominate Sanford until Jan. 24, 1923. However, the media reported as early as Jan. 9, 1923, that President Harding intended to nominate
Sanford (“E.T. Sanford Choice for Supreme Court,” Washington Post, Jan. 9, 1923, p. 1).
m. Justice McKenna did not officially retire until Jan. 5, 1925. However, the media reported his imminent retirement on Dec. 25, 1924 (“M’Kenna to Retire Soon as a Justice of the
Supreme Court,” Washington Post, Dec. 25, 1924, p. 2).

---

CRS-40
n. For an account of Justice Van Devanter privately alerting a reporter of his decision to retire on the morning of the announcement, see “News ‘Beat’ Aided by Van Devanter,” New
York Times, May 23, 1937, p. 40.
o. Justice Reed had also been a frontrunner for the 1937 seat that eventually went to Justice Hugo Black. This perhaps explains President Franklin D. Roosevelt’s relatively quick
nomination of Reed, despite what many reporters considered to be a surprise retirement announcement from Sutherland. See Robert C. Albright, “Sutherland, 75, Quits U.S.
Supreme Court,” New York Times, Jan. 6, 1938, p. X1; and Franklyn Waltman, “Stanley F. Reed Named to U.S. Supreme Court.” New York Times, Jan. 16, 1938, p. 1.
p. Although Justice Cardozo had been ill and away from the bench since December 1937 (United Press, “Supreme Court Liberal Succumbs to Heart Ailment in N.Y.,” Washington
Post, July 10, 1938, p. M1), a definite need to nominate a new Justice did not occur until Cardozo’s death on July 9, 1938.
q. Justice Brandeis had been away from the bench for a month, recovering from a heart attack, prior to announcing his retirement (United Press, “Justice Brandeis, Dean of Supreme
Court, Quits,” Los Angeles Times, Feb. 14, 1939, p. 1). Nonetheless, his retirement was considered abrupt, suggesting that President Roosevelt had little advance notice to consider
a successor.
r. It is unclear from the historical record whether the President learned of Justice McReynolds’s desire to retire by letter, personal conversation, etc.
s. Although Chief Justice Hughes’s retirement due to age and poor health had been “rumored some months” prior to submission of his formal retirement letter (Walter Trohan, “Hughes
Retires From Court,” Chicago Daily Tribune, June 3, 1941, p. 1), the definite need for a new nominee did not arise until Hughes announced his retirement.
t. Justice Byrnes resigned at President Roosevelt’s request on Oct. 3, 1942, becoming Director of Economic Stability. Roosevelt was, therefore, aware of an impending vacancy on
the Court prior to the formal resignation, although the precise date is unclear. For a summary of Byrnes’s transition from the Court to his new post, see Associated Press, “Byrnes
Resigns From Bench in Letter to President,” New York Times, Oct. 4, 1942, p. 45.
u. Although President Truman did not announce Justice Roberts’s intention to retire until July 5, 1945 (United Press, “Morganthau and Roberts Resign,” Los Angeles Times, July 6,
1945, p. 1), Justice Roberts’s retirement letter is dated July 30, 1945. Truman received the letter on that date “or soon thereafter” (e-mail communication between CRS Information
Specialist Dana Ely and Truman Library Archivist Randy Sowell, Sept. 2, 2005).
v. The Senate took no final action on the Harlan nomination before the 83rd Congress’s final adjournment on Dec. 2, 1954. President Eisenhower re-nominated Harlan to the Court
on Jan. 10, 1955, five days after the start of the first session of the 84th Congress. Evidence does not suggest that another announcement of the nomination was made.
w. Whether President Eisenhower first learned of Justice Reed’s retirement through the press conference or a letter from Reed is unclear. Contemporary media coverage mentioned
a press conference and a letter to Eisenhower (Edward T. Folliard, “Reed Is Retiring From High Court,” Washington Post, Feb. 1, 1957, p. A1). However, political scientist
Artemus Ward’s account asserts that Reed announced his retirement through a press conference (Ward, Deciding to Leave, pp. 162-163). Regardless, both events occurred on
Jan. 31, 1957. For the Jan. 31 correspondence between Reed and Eisenhower, see “Letter to Stanley Reed Regarding His Retirement From Active Service as An Associate Justice
of the Supreme Court,” U.S. National Archives and Records Administration, Office of the Federal Register, Public Papers of the Presidents of the United States: Dwight D.
Eisenhower, 1957 (Washington: GPO, 1958), pp. 109-110.
x. This information is based on e-mail communication between CRS Information Specialist Dana Ely and Kennedy Library Reference Technician Sharon Kelly, Sept. 14, 2005.
y. According to a press account, President Kennedy’s decision to nominate White “was apparently made just a few hours before the selection was announced Friday night” (on March
30, 1962) (James E. Clayton, “White Was One of Three In Line for High Court,” Washington Post, Apr. 1, p. A1). Given the relatively quick action, however, Kennedy might
have considered White as a Supreme Court candidate in advance of the Mar. 28, 1962, announced vacancy.

---

CRS-41
z. Aug. 28, 1962, is the only definitive date which can be established based on available data, as the earliest point at which President Kennedy learned of Justice Frankfurter’s intention
to retire. However, President Kennedy’s quick nomination of Goldberg, and Justice Frankfurter’s poor health in the weeks leading up to his retirement, suggest that President
Kennedy was considering prospective nominees well before Frankfurter stepped down. Kennedy’s letter to Justice Frankfurter accepting his retirement references a visit the
President paid to Frankfurter to check on his health sometime during the summer of 1962 (U.S. National Archives and Records Administration, Office of the Federal Register,
Public Papers of the Presidents of the United States: John F. Kennedy, 1962, (Washington: GPO, 1963), p. 656). According to Kennedy Library Reference Technician Sharon
Kelly, Kennedy’s office files suggest that correspondence between Frankfurter, Special Assistant for National Security Affairs McGeorge Bundy, and the President would have
alerted Kennedy to Frankfurter’s declining health around May 17, 1962 (e-mail communication between CRS Information Specialist Dana Ely and Kennedy Library Reference
Technician Sharon Kelly, Sept. 14, 2005).
aa. President Lyndon B. Johnson unexpectedly nominated Justice Goldberg to be U.S. Ambassador to the United Nations following the death on July 14, 1965, of the previous
ambassador, Adlai E. Stevenson. See Carroll Kilpatrick, “Goldberg is Named to Stevenson Post,” Washington Post, July 21, 1965, p. A1.
bb. Although Justice Fortas was not nominated until July 28, 1965, President Johnson apparently decided to nominate Fortas long before the Goldberg vacancy, making the gap of
only one week between Goldberg’s resignation and Fortas’s nomination unsurprising. At the press conference announcing Fortas’s nomination, President Johnson said that he
and Fortas had discussed the nomination “on numerous occasions in the 20 months,” (U.S. National Archives and Records Administration, Office of the Federal Register, Public
Papers of the Presidents of the United States: Lyndon B. Johnson, 1966, vol. 2 (Washington: GPO), 1967, p. 798).
cc. Despite the fact that Justice Clark announced his forthcoming retirement on Feb. 28, 1967, historical evidence suggests that Johnson might have prompted Clark’s retirement as
early as Jan. 1967, when the President prepared to nominated Justice Clark’s son, Ramsey, to be Attorney General. “On January 25, 1967, Johnson told Ramsey that he could
only be named the permanent attorney general if his father stepped down from the Court” (Ward, Deciding to Leave, p. 170).
dd. Like the 1965 Fortas nomination, Marshall’s nomination was no surprise, since Johnson was reportedly considering Marshall for appointment to the Court before the formal
nomination. According to a 1967 Washington Post report, “Marshall’s resignation two years ago, at the President’s request, from a lifetime seat on the 2d U.S. Circuit Court
of Appeals to become Solicitor General, had seemed clearly a move to groom him for the Nation’s highest court” (John P. MacKenzie, “LBJ Names Marshall to Court,” June
14], 1967, Washington Post, p. A1).
ee. Although President Johnson did not announce Chief Justice Warren’s retirement until June 26, he received Warren’s retirement letter on June 13, 1968 (U.S. National Archives
and Records Administration, Office of the Federal Register, Public Papers of the Presidents of the United States: Lyndon B. Johnson, 1968-69, vol. 1 (Washington: GPO), 1970,
p. 746).
ff. Although a specific opportunity to name a new Associate Justice did not arise until the Fortas Chief Justice nomination on June 26, 1968, it was reported that “[s]ome Texans at
the Capitol are sure that Mr. Johnson has planned for the last four years to name Thornberry to the Supreme Court before he [Johnson] left office,” (Richard L. Lyons, “Homer
Thornberry: ‘Constructive Liberal,’ Close LBJ friend,” Washington Post, June 27, 1969, p. 1).
gg. Jan. 20, 1969 (the date of Richard M. Nixon’s inauguration), is used as the starting date for the vacancy because it marks the beginning of President Nixon’s official decision-making
powers. After the Abe Fortas Chief Justice nomination failed, President Johnson announced on Oct. 2, 1968, that he would not name another nominee (U.S. National Archives
and Records Administration, Office of the Federal Register, Public Papers of the Presidents of the United States: Lyndon B. Johnson, 1968-69, vol. 2 (Washington: GPO), 1966,
p. 509). Eight days later, Johnson elaborated on his decision. The President wrote that although he would have made another nomination in “ordinary times,” the situation was
extraordinary and that, “Under the circumstances, the foundations of government would be better served by the present Chief Justice [Earl Warren] remaining [in office] until

---

CRS-42
emotionalism subsides, reason and fairness prevail (U.S. National Archives and Records Administration, Office of the Federal Register, Public Papers of the Presidents of the
United States: Lyndon B. Johnson, 1968-69, vol. 2 (Washington: GPO, 1970), p. 1024). On Dec. 3, 1968, Chief Justice Warren informed President-elect Richard M. Nixon that
he was willing to continue serving until a successor was confirmed (“Statement by the Chief Justice,” Dec. 4, 1968, Earl Warren Papers, Manuscript Division, Library of Congress,
Washington, DC). In a May 1969, conversation with reporters, President Nixon offered an unusually detailed discussion of his decision-making process surrounding the Burger
nomination. Nixon reported that he thought “it would not be a proper mark of respect for the Court and for the Chief Justice to have a nomination go down, say, in February
or March, and then have possibly the Senate hearings and the like at a time that the Court was sitting,” and that his target date for a nomination decision was between May 1 and
June 1, 1968 (U.S. National Archives and Records Administration, Office of the Federal Register, Public Papers of the Presidents of the United States: Richard Nixon, 1970,
(Washington: GPO), 1971, p. 390).
hh. Although President Richard M. Nixon waited until Aug. 18, 1969, to nominate Haynsworth, media accounts speculated that Haynsworth would be the nominee at least as early
as Aug. 6. See AP, “Possible High Court Choice Hit,” Washington Post, Aug. 7, 1969, p. B4.
ii. Chief Justice Warren Burger reportedly “hint[ed] at a possible vacancy” on the Court in a letter to President Gerald Ford on Nov. 10, 1975, and offered “factors for [the President]
to consider when appointing a new justice,” (e-mail communication between CRS Information Specialist Dana Ely and Ford Library Archivist Technician Joshua Cochran, Sept.
12, 2005). Justice Douglas’s health had been in question since Dec. 31, 1974, when he suffered a stroke (John P. MacKenzie, “Douglas Retires From Court,” Washington Post,
Nov. 13, 1975, p. A1). However, President Ford would have had relatively little time to consider a replacement Justice since he did not assume the presidency until Aug. 9, 1975,
and a vacancy did not officially arise until Justice Douglas’s Nov. 12, 1975 retirement letter.
jj. During a Nov. 29, 1975, press conference, White House Press Secretary Ron Nessen revealed that the President had decided to nominate, as well as announce his choice of, Stevens
the same day (Spencer Rich, “Ford Picks Chicago Jurist,” Washington Post, Nov. 29, 1975, p. A1). The announcement occurred on Nov. 28, 1975.
kk. Although Justice Stewart’s decision to retire was not made public until June 18, 1981, Stewart delivered a letter, stating his desire to retire, to President Ronald Reagan on May
18, 1981 (U.S. National Archives and Records Administration, Office of the Federal Register, Public Papers of the Presidents of the United States: Ronald Reagan, 1981
(Washington: GPO, 1982), p. 539.
ll. In this case, the distinction between the dates of announcement of the nominee and the formal nomination is particularly important. On July 7, 1981, President Reagan “announced
his intention” to nominate Judge O’Connor upon completion of a required FBI background check (U.S. National Archives and Records Administration, Office of the Federal
Register, Public Papers of the Presidents of the United States: Ronald Reagan, 1981, (Washington: GPO, 1982), p. 597). President Reagan did not formally nominate her until
Aug. 19, 1981, after she had passed the background check.
mm. Although Chief Justice Burger officially notified President Reagan, by letter on June 17, 1986, of his desire to retire, Burger privately informed Reagan of his plans on May 27,
1986 (“Remarks on the Resignation of Supreme Court Chief Justice Warren E. Burger and the Nominations of William H. Rehnquist To Be Chief Justice and Antonin Scalia
To Be an Associate Justice,” U.S. National Archives and Records Administration, Office of the Federal Register, Public Papers of the Presidents of the United States: Ronald
Reagan, 1986, vol. 2 (Washington: GPO, 1989), p. 781).

---

CRS-43
nn. The May 27, 1986, date is used because Chief Justice Burger’s intention to retire (known to President Reagan on May 27) alerted the President of the forthcoming opportunity
to elevate Rehnquist from Associate Justice to Chief Justice, and in turn, of the opportunity to nominate someone to succeed Rehnquist as an Associate Justice.
oo. President Reagan reportedly “had no advance warning of the resignation” (Al Kamen, “Nixon-Appointed Democrat Cites Age, Health,” Washington Post, June 27, 1987, p. A1).
pp. Judge Ginsburg withdrew his name from consideration before being officially nominated, but after President Reagan had announced his intention to nominate Ginsburg. Among
other controversies surrounding the nomination, Ginsburg admitted shortly before withdrawing that he “had smoked marijuana while a Harvard law professor” (Lou Cannon
and Ruth Markus, “Judge Kennedy Likely Choice,” Washington Post, Nov. 9, 1987, p. A6).
qq. President George H. W. Bush stated in a July 23, 1990, press conference nominating Souter that he had not decided on a final nominee until that day (U.S. National Archives and
Records Administration, Office of the Federal Register, Public Papers of the Presidents of the United States: George Bush, 1990, vol. 2 (Washington: GPO, 1992), p. 1051).
rr. On the details of transferring Justice White’s retirement letter to the President beginning on Mar. 18, 1993, see Dennis J. Hutchinson, The Man Who Was Once Whizzer
White: A Portrait of Justice Byron R. White (New York: Free Press , 1998, p. 437) and Ward, Deciding to Leave, p. 183, n. 183. One of Justice White’s former law clerks,
by then working in the White House, delivered the letter on the Mar. 19, 1993.
ss. President William J. Clinton announced Ginsburg’s nomination on June 14, 1993. However, President Clinton noted in his nomination speech that he asked Ginsburg to accept
the nomination on the evening of June 13 (U.S. National Archives and Records Administration, Office of the Federal Register, Public Papers of the Presidents of the United States:
William J. Clinton, 1993, vol. 1 (Washington: GPO, 1994), p. 843).
tt. Jan. 1, 1994 is a slight estimation, since Justice Blackmun reportedly “told President Bill Clinton at Renaissance Weekend over the New Year’s holiday in Hilton Head, S.C., that
this would be his last term (Tony Mauro, “How Blackmun Hid Retirement Plans,” New Jersey Law Journal, Apr. 25, 1994, p. 18. ). Clinton publicly announced Blackmun’s
retirement on April 6, 1994. (U.S. National Archives and Records Administration, Office of the Federal Register, Public Papers of the Presidents of the United States: William
J. Clinton, 1994, vol. 1 (Washington: GPO, 1995), p. 597).

---

CRS-44
Table 2. Duration in Days Between Major Events in the Supreme Court Nomination-and-Confirmation Process,
1900-2005
Nominating
Outgoing
Actual or Prospective
Nominee
Number of days elapsed from . . .
President
Justice
Vacancy Apparently
Became Known to
President
When
How
Vacancy to
Nomination
First
Committee
Starting
nomination
announce-
hearing to
final action to
date to
announce-
committee
Senate action
final
ment to first
ment
hearing
final action
Senate
action
Theodore
Horace Gray
09/15/1902
Death of
Oliver
78
No record of
No record
0

80
Roosevelt
outgoing
Wendell
hearing
of hearing
Justice
Holmes
Theodore
George
08/20/1902a
Public reports
William R.
147
No record of
No record
0
187
Roosevelt
Shiras, Jr.
of imminent
Day
hearing
of hearing
retirement
Theodore
Henry B.
03/08/1906b
Outgoing
William H.
244
No record of
No record
2
279
Roosevelt
Brown
Justice
Moody
hearing
of hearing
notified
President of
intention to
retirec

---

CRS-45
Nominating
Outgoing
Actual or Prospective
Nominee
Number of days elapsed from . . .
President
Justice
Vacancy Apparently
Became Known to
President
When
How
Vacancy to
Nomination
First
Committee
Starting
nomination
announce-
hearing to
final action to
date to
announce-
committee
Senate action
final
ment to first
ment
hearing
final action
Senate
action
William
Rufus W.
10/24/1909
Death of
Horace H.
50
No record of
No record
4
59
Howard Taft
Peckham
outgoing
Lurton
hearing
of hearing
Justice
William
David J.
03/28/1910
Death of
Charles
28
No record of
No record
0
35
Howard Taft
Brewer
outgoing
Evans
hearing
of hearing
Justice
Hughes
William
Melville W.
07/04/1910 Death
of
Edward D.
161
Nomination
Nomination
Nomination
161
Howard Taft
Fuller
outgoing
White
was not
was not
was not
Chief Justice
referred to
referred to
referred to
Chief Justice
Judiciary
Judiciary
Judiciary
Committee
Committee
Committee

---

CRS-46
Nominating
Outgoing
Actual or Prospective
Nominee
Number of days elapsed from . . .
President
Justice
Vacancy Apparently
Became Known to
President
When
How
Vacancy to
Nomination
First
Committee
Starting
nomination
announce-
hearing to
final action to
date to
announce-
committee
Senate action
final
ment to first
ment
hearing
final action
Senate
action
William
Edward D.
12/12/1910
White
Willis Van
0
No record of
No record
0
3
Howard Taft
White
nomination by
Devanter
hearing
of hearing
President to
be Chief
Justice
William
William H.
06/15/1910d
Congressional
Joseph R.
180
No record of
No record
0
183
Howard Taft
Moody
action
Lamar
hearing
of hearing
authorizing
retirement
William
John Marshall
10/14/1911 Death
of
Mahlon
128
No record of
No record
9
151
Howard Taft
Harlan
outgoing
Pitney
hearing
of hearing
Justice

---

CRS-47
Nominating
Outgoing
Actual or Prospective
Nominee
Number of days elapsed from . . .
President
Justice
Vacancy Apparently
Became Known to
President
When
How
Vacancy to
Nomination
First
Committee
Starting
nomination
announce-
hearing to
final action to
date to
announce-
committee
Senate action
final
ment to first
ment
hearing
final action
Senate
action
Woodrow
Horace H.
07/12/1914
Death of
James C.
38
No record of
No record
5
48
Wilson
Lurton
outgoing
McReynolds
hearing
of hearing
Justice
Woodrow
Joseph R.
01/02/1916
Death of
Louis D.
26
12
105
8
151
Wilson
Lamar
outgoing
Brandeis
Justice
Woodrow
Charles Evans
06/10/1916e
Resignation to
John H.
34
No record of
No record
0
44
Wilson
Hughes
pursue
Clarke
hearing
of hearing
political
office

---

CRS-48
Nominating
Outgoing
Actual or Prospective
Nominee
Number of days elapsed from . . .
President
Justice
Vacancy Apparently
Became Known to
President
When
How
Vacancy to
Nomination
First
Committee
Starting
nomination
announce-
hearing to
final action to
date to
announce-
committee
Senate action
final
ment to first
ment
hearing
final action
Senate
action
Warren
Edward D.
05/19/1921
Death of
William
42
Nomination
Nomination
Nomination
42
Harding
White
outgoing
Howard Taft
was not
was not
was not
Justice
referred to
referred to
referred to
Judiciary
Judiciary
Judiciary
Committee
Committee
Committee
Warren
John H.
09/05/1922
Resignation
George
0
Nomination
Nomination
Nomination
0
Harding
Clarke
letter
Sutherland
was not
was not
was not
submitted to
referred to
referred to
referred to
President
Judiciary
Judiciary
Judiciary
Committee
Committee
Committee

---

CRS-49
Nominating
Outgoing
Actual or Prospective
Nominee
Number of days elapsed from . . .
President
Justice
Vacancy Apparently
Became Known to
President
When
How
Vacancy to
Nomination
First
Committee
Starting
nomination
announce-
hearing to
final action to
date to
announce-
committee
Senate action
final
ment to first
ment
hearing
final action
Senate
action
Warren
William R.
09/05/1922f
Public reports
Pierce Butler
79
No record of
No record
No record of
No final
Harding
Day
of imminent
hearing
of hearing
hearing
action
retirement
12/04/1922
Lack of action
Pierce Butler
1
No record of
No record
3
4
on first
hearing
of hearing
nomination of
Butler
Warren
Mahlon
12/16/1922
White House
Edward T.
24
No record of
No record
0
44
Harding
Pitney
announced
Sanford
hearing
of hearing
forthcoming
retirementg

---

CRS-50
Nominating
Outgoing
Actual or Prospective
Nominee
Number of days elapsed from . . .
President
Justice
Vacancy Apparently
Became Known to
President
When
How
Vacancy to
Nomination
First
Committee
Starting
nomination
announce-
hearing to
final action to
date to
announce-
committee
Senate action
final
ment to first
ment
hearing
final action
Senate
action
Calvin
Joseph
12/25/1924h
Public reports
Harlan F.
11
23
Committee
0
32
Coolidge
McKenna
of imminent
Stone
vote to
retirement
recommit
before final
action
5
3
42
Herbert
William
02/03/1930
Retirement
Charles
0
No record of
No record
3
10
Hoover
Howard Taft
letter
Evans
hearing
of hearing
submitted to
Hughes
President
Herbert
Edward T.
03/08/1930
Death of
John J.
13
15
20
20
60
Hoover
Sanford
outgoing
Parker
Justice

---

CRS-51
Nominating
Outgoing
Actual or Prospective
Nominee
Number of days elapsed from . . .
President
Justice
Vacancy Apparently
Became Known to
President
When
How
Vacancy to
Nomination
First
Committee
Starting
nomination
announce-
hearing to
final action to
date to
announce-
committee
Senate action
final
ment to first
ment
hearing
final action
Senate
action
Herbert
Edward T.
05/07/1930
Parker
Owen J.
2
No record of
No record
1
13
Hoover
Sanford
nomination
Roberts
hearing
of hearing
rejected by
Senate
Herbert
Oliver
01/12/1932
Outgoing
Benjamin N.
34
No record of
No record
1
43
Hoover
Wendell
Justice
Cardozo
hearing
of hearing
Holmes, Jr.
notified
President of
intention to
retire
Franklin D.
Willis Van
05/18/1937i
Retirement
Hugo L.
86
No record of
No record
1
91
Roosevelt
Devanter
letter
Black
hearing
of hearing
submitted to
President

---

CRS-52
Nominating
Outgoing
Actual or Prospective
Nominee
Number of days elapsed from . . .
President
Justice
Vacancy Apparently
Became Known to
President
When
How
Vacancy to
Nomination
First
Committee
Starting
nomination
announce-
hearing to
final action to
date to
announce-
committee
Senate action
final
ment to first
ment
hearing
final action
Senate
action
Franklin D.
George
01/05/1938
Retirement
Stanley F.
10
5
4
1
20
Roosevelt
Sutherland
letter
Reed
submitted to
President
Franklin D.
Benjamin N.
07/09/1938j
Death of
Felix
180
2
9
1
192
Roosevelt
Cardozo
outgoing
Frankfurter
Justice
Franklin D.
Louis D.
02/13/1939k
Retirement
William O.
35
4
3
8
50
Roosevelt
Brandeis
letter
Douglas
submitted to
President
Franklin D.
Pierce Butler
11/16/1939
Death of
Frank
49
No record of
No record
1
61
Roosevelt
outgoing
Murphy
hearing
of hearing
Justice

---

CRS-53
Nominating
Outgoing
Actual or Prospective
Nominee
Number of days elapsed from . . .
President
Justice
Vacancy Apparently
Became Known to
President
When
How
Vacancy to
Nomination
First
Committee
Starting
nomination
announce-
hearing to
final action to
date to
announce-
committee
Senate action
final
ment to first
ment
hearing
final action
Senate
action
Franklin D.
James C.
01/22/1941
Outgoing
James F.
141
Nomination
Nomination
Nomination
141
Roosevelt
McReynolds
Justice
Byrnes
was not
was not
was not
notified
referred to
referred to
referred to
President of
Judiciary
Judiciary
Judiciary
intention to
Committee
Committee
Committee
retirel
Franklin D.
Charles Evans
06/02/1941
Retirement
Harlan F.
10
9
2
4
25
m
Roosevelt
Hughes
letter
Stone
Chief Justice
submitted to
President
Franklin D.
Harlan F.
06/12/1941
Stone
Robert H.
0
9
9
7
25
Roosevelt
Stone
nomination by
Jackson
President to
be Chief
Justice

---

CRS-54
Nominating
Outgoing
Actual or Prospective
Nominee
Number of days elapsed from . . .
President
Justice
Vacancy Apparently
Became Known to
President
When
How
Vacancy to
Nomination
First
Committee
Starting
nomination
announce-
hearing to
final action to
date to
announce-
committee
Senate action
final
ment to first
ment
hearing
final action
Senate
action
Franklin D.
James F.
10/03/1942n
Byrnes
Wiley B.
100
11
10
7
128
Roosevelt
Byrnes
appointment
Rutledge
to other
public office
Harry. S.
Owen J.
06/30/1945o
Retirement
Harold H.
80
No record of
No record
0
81
Truman
Roberts
letter
Burton
hearing
of hearing
submitted to
President
Harry S.
Harlan F.
04/22/1946
Death of
Fred M.
45
8
5
1
59
Truman
Stone
outgoing
Vinson
Chief Justice
Chief Justice
Harry S.
Frank Murphy
07/19/1949
Death of
Thomas C.
9
12
3
6
30
Truman
outgoing
Clark
Justice

---

CRS-55
Nominating
Outgoing
Actual or Prospective
Nominee
Number of days elapsed from . . .
President
Justice
Vacancy Apparently
Became Known to
President
When
How
Vacancy to
Nomination
First
Committee
Starting
nomination
announce-
hearing to
final action to
date to
announce-
committee
Senate action
final
ment to first
ment
hearing
final action
Senate
action
Harry S.
Wiley B.
09/10/1949
Death of
Sherman
5
12
6
1
24
Truman
Rutledge
outgoing
Minton
Justice
Dwight D.
Fred M.
09/08/1953 Death
of
Earl Warren
24
Recess appointment, 10/02/1953
Eisenhower
Vinson
outgoing
Chief Justice
Chief Justice
125p
22
22
5
174
Dwight D.
Robert H.
10/09/1954
Death of
John
30
No record of
No record
No record of
No record
Eisenhower
Jackson
outgoing
Marshall
hearing
committee
committee
of final
Justice
Harlan II
action
action
action after
committee
referral
5
45
14
6
70

---

CRS-56
Nominating
Outgoing
Actual or Prospective
Nominee
Number of days elapsed from . . .
President
Justice
Vacancy Apparently
Became Known to
President
When
How
Vacancy to
Nomination
First
Committee
Starting
nomination
announce-
hearing to
final action to
date to
announce-
committee
Senate action
final
ment to first
ment
hearing
final action
Senate
action
Dwight D.
Sherman
09/07/1956
Retirement
William J.
38
Recess appointment, 10/15/1956
Eisenhower
Minton
letter
Brennan
submitted to
129q
44
5
15
193
President
Dwight D.
Stanley F.
01/31/1957
Press
Charles E.
30
16
0
1
47
Eisenhower
Reed
conference
Whittaker
held by Reed
announcing
retirementr
Dwight D.
Harold H.
10/06/1958
Retirement
Potter
8
Recess appointment, 10/14/1958
Eisenhower
Burton
letter
Stewart
submitted to
103s
82
11
15
211
President

---

CRS-57
Nominating
Outgoing
Actual or Prospective
Nominee
Number of days elapsed from . . .
President
Justice
Vacancy Apparently
Became Known to
President
When
How
Vacancy to
Nomination
First
Committee
Starting
nomination
announce-
hearing to
final action to
date to
announce-
committee
Senate action
final
ment to first
ment
hearing
final action
Senate
action
John F.
Charles E.
03/28/1962
Retirement
Byron R.
2
12
0
0
14
Kennedy
Whittaker
letter received
White
by Presidentt
John F.
Felix
08/28/1962u
Retirement
Arthur J.
1
13
14
0
28
Kennedy
Frankfurter
letter
Goldberg
submitted to
President
Lyndon B.
Arthur J.
07/20/1965
Goldberg
Abe Fortas
8
8
5
1
22
Johnson
Goldberg
appointment
to other
public officev

---

CRS-58
Nominating
Outgoing
Actual or Prospective
Nominee
Number of days elapsed from . . .
President
Justice
Vacancy Apparently
Became Known to
President
When
How
Vacancy to
Nomination
First
Committee
Starting
nomination
announce-
hearing to
final action to
date to
announce-
committee
Senate action
final
ment to first
ment
hearing
final action
Senate
action
Lyndon B.
Thomas C.
02/28/1967
Outgoing
Thurgood
105
30
21
27
183
Johnson
Clark
Justice
Marshall
notified
President of
intention to
retirew
Lyndon B.
Earl Warren
06/13/1968x
Retirement
Abe Fortas
13
15
77
5
110
Johnson
letter
Chief Justice
submitted to
President
Lyndon B.
Abe Fortas
06/26/1968y
Fortas
Homer
0
15
No record
No record of
100
Johnson
nomination by
Thornberry
of
final
Johnson to be
committee
committee
Chief Justice
vote
action

---

CRS-59
Nominating
Outgoing
Actual or Prospective
Nominee
Number of days elapsed from . . .
President
Justice
Vacancy Apparently
Became Known to
President
When
How
Vacancy to
Nomination
First
Committee
Starting
nomination
announce-
hearing to
final action to
date to
announce-
committee
Senate action
final
ment to first
ment
hearing
final action
Senate
action
Richard M.
Earl Warren
01/20/1969z
Fortas Chief
Warren E.
121
13
0
6
140
Nixon
Chief Justice
Justice
Burger
nomination
withdrawn by
President
(10/4/1968)

---

CRS-60
Nominating
Outgoing
Actual or Prospective
Nominee
Number of days elapsed from . . .
President
Justice
Vacancy Apparently
Became Known to
President
When
How
Vacancy to
Nomination
First
Committee
Starting
nomination
announce-
hearing to
final action to
date to
announce-
committee
Senate action
final
ment to first
ment
hearing
final action
Senate
action
Richard M.
Abe Fortas
05/14/1969
Resignation
Clement F.
96
29
23
43
191
Nixon
letter
Haynsworth,
submitted to
Jr.
President
11/21/1969
Haynsworth
G. Harrold
59
8
20
51
138
nomination
Carswell
rejected by
Senate
04/08/1970
Carswell
Harry A.
8
15
7
6
34
nomination
Blackmun
rejected by
Senate

---

CRS-61
Nominating
Outgoing
Actual or Prospective
Nominee
Number of days elapsed from . . .
President
Justice
Vacancy Apparently
Became Known to
President
When
How
Vacancy to
Nomination
First
Committee
Starting
nomination
announce-
hearing to
final action to
date to
announce-
committee
Senate action
final
ment to first
ment
hearing
final action
Senate
action
Richard M.
Hugo L.
09/17/1971
Retirement
Lewis F.
34
13
20
13
80
Nixon
Black
letter
Powell, Jr.
submitted to
President
Richard M.
John Marshall
09/23/1971
Retirement
William H.
28
13
20
17
78
Nixon
Harlan II
letter
Rehnquist
submitted to
President
Gerald R.
William O.
11/12/1975
Retirement
John Paul
16
10
3
6
35
Ford
Douglas
aa
letter
Stevens
submitted to
President

---

CRS-62
Nominating
Outgoing
Actual or Prospective
Nominee
Number of days elapsed from . . .
President
Justice
Vacancy Apparently
Became Known to
President
When
How
Vacancy to
Nomination
First
Committee
Starting
nomination
announce-
hearing to
final action to
date to
announce-
committee
Senate action
final
ment to first
ment
hearing
final action
Senate
action
Ronald
Potter Stewart
05/18/1981
Retirement
Sandra Day
50
64
6
6
126
Reagan
bb
letter
O’Connor
submitted to
President
Ronald
Warren E.
05/27/1986
Justice
William H.
21
42
16
34
113
Reagan
Burger
cc
privately
Rehnquist
Chief Justice
alerted
President of
intention to
retire
Ronald
William H.
05/27/1986
Rehnquist
Antonin
21
49
9
34
113
Reagan
Rehnquist
dd
nomination by
Scalia
Reagan to be
Chief Justice

---

CRS-63
Nominating
Outgoing
Actual or Prospective
Nominee
Number of days elapsed from . . .
President
Justice
Vacancy Apparently
Became Known to
President
When
How
Vacancy to
Nomination
First
Committee
Starting
nomination
announce-
hearing to
final action to
date to
announce-
committee
Senate action
final
ment to first
ment
hearing
final action
Senate
action
Ronald
Lewis F.
06/26/1987
Press
Robert H.
5
76
21
17
119
Reagan
Powell, Jr.
ee
conference
Bork
held by
Powell
announcing
retirement
10/23/1987
Bork
Douglas H.
6
Ginsburg withdrew (11/07/1987)
nomination
Ginsburg
before official nominationff
rejected by
Senate
11/07/1987
Ginsburg
Anthony M.
4
33
44
7
88
withdrawal
Kennedy

---

CRS-64
Nominating
Outgoing
Actual or Prospective
Nominee
Number of days elapsed from . . .
President
Justice
Vacancy Apparently
Became Known to
President
When
How
Vacancy to
Nomination
First
Committee
Starting
nomination
announce-
hearing to
final action to
date to
announce-
committee
Senate action
final
ment to first
ment
hearing
final action
Senate
action
George
William J.
07/20/1990
Retirement
David H.
3
52
14
5
74
H. W. Bush
Brennan
letter
Souter
submitted to
President
George
Thurgood
06/27/1991
Retirement
Clarence
4
71
17
18
110
Marshall
letter
Thomas
H. W. Bush
submitted to
President
William J.
Byron R.
03/19/1993
Retirement
Ruth Bader
87
36
9
5
137
Clinton
White
gg
letter
Ginsburg
submitted to
President

---

CRS-65
Nominating
Outgoing
Actual or Prospective
Nominee
Number of days elapsed from . . .
President
Justice
Vacancy Apparently
Became Known to
President
When
How
Vacancy to
Nomination
First
Committee
Starting
nomination
announce-
hearing to
final action to
date to
announce-
committee
Senate action
final
ment to first
ment
hearing
final action
Senate
action
William J.
Harry A.
01/01/1994
Justice
Stephen G.
132
60
7
10
209
Clinton
Blackmun
hh
privately
Breyer
alerted
President

---

CRS-66
Nominating
Outgoing
Actual or Prospective
Nominee
Number of days elapsed from . . .
President
Justice
Vacancy Apparently
Became Known to
President
When
How
Vacancy to
Nomination
First
Committee
Starting
nomination
announce-
hearing to
final action to
date to
announce-
committee
Senate action
final
ment to first
ment
hearing
final action
Senate
action
George W.
Sandra Day
07/01/2005
Retirement
John G.
18
Nomination
No
No
No
Bush
O’Connor
letter
Roberts
withdrawn by
opportunity
opportunity
opportunity
submitted to
President
for final
for final
President
(09/05/2005),
Senate
for final
Senate
re-nominated
action
Senate action
action
as Chief
Justice
(09/05/2005)
09/05/2005
Announce-
Harriet
30
ment of
Miers
Roberts
nomination
withdrawal
and re-
submission
by President

---

CRS-67
Nominating
Outgoing
Actual or Prospective
Nominee
Number of days elapsed from . . .
President
Justice
Vacancy Apparently
Became Known to
President
When
How
Vacancy to
Nomination
First
Committee
Starting
nomination
announce-
hearing to
final action to
date to
announce-
committee
Senate action
final
ment to first
ment
hearing
final action
Senate
action
George W.
William H.
09/03/2005
Death of
John G.
2
7
10
7
26
Bush
Rehnquist
outgoing
Roberts
Justice
Sources: Durations for major intervals in the nomination-and-confirmation process were computed by the CRS authors. As described in the text, this research relied on historical
newspapers, official presidential papers, and CRS correspondence with Presidential Libraries. Ward’s Deciding to Leave was especially useful in compiling data on the reasons why
Justices left the bench. Additional source information appears in the table notes below.
a. It is unclear when President Theodore Roosevelt learned of Justice Shiras’s intention to retire. However, Washington Post coverage suggests that Shiras’s forthcoming departure
was well known in Washington by at least Aug. 20, 1902 (“Knox May Not Want It: Belief that He Would Decline Justice Shiras’ Position,” Washington Post, Aug. 20, 1902,
p. 1).
b. According to the Washington Post, Justice Brown notified the President, on Mar. 8, 1906, that he wished to retire (“To Leave the Bench: Justice Brown Will Retire in the Fall,”
Washington Post, Mar. 8, 1906, p. 3).
c. It is unclear from the historical record whether the President learned of Justice Brown’s desire to retire by letter, personal conversation, etc.
d. Justice Moody did not actually depart the Court until Nov. 20, 1910 (Ward, Deciding to Leave, p. 5). However, “Illness of a serious nature has kept Justice Moody from his duties
in the Supreme Court for almost a year. There have been occasional rumors of retirement, but Senator Lodge [on June 15, 1910] presented the real harbinger of that action, in
the form of a bill extending the statute relating to retirement from the Supreme Court to cover the case of Mr. Moody” (“Moody Will Retire,” Washington Post, June 15, 1910,
p. 1).

---

CRS-68
e. On June 10, 1916, Justice Hughes resigned to pursue the 1916 Republican presidential nomination (“Hughes, With Words That Ring, Obeys Call to Lead Republicans,” Washington
Post, June 11, 1916, p. 1). Although historical media research does not indicate that President Wilson knew for certain that Justice Hughes would resign, media reports had hinted
at a Hughes resignation throughout the spring of 1916.
f. Day did not leave the Court until Nov. 13, 1922. However, the Washington Post reported that Day’s consideration of retirement was mentioned at a White House briefing on Sept.
5, 1922 (“Justice Day May Leave the Bench,” Washington Post, Sept. 6, 1922, p. 1).
g. Although Justice Pitney’s resignation was effective as of Dec. 31, 1922, the White House announced Pitney’s forthcoming departure on Dec. 16, 1922 ( “Resigns,” Chicago Daily
Tribune, Dec. 17, 1922, p. 17).
h. Justice McKenna did not officially retire until Jan. 5, 1925. However, the media reported his imminent retirement on Dec. 25, 1924 (“M’Kenna to Retire Soon as a Justice of the
Supreme Court,” Washington Post, Dec. 25, 1924, p. 2).
i. For an account of Justice Van Devanter privately alerting a reporter of his decision to retire on the morning of the announcement, see “News ‘Beat’ Aided by Van Devanter,” New
York Times, May 23, 1937, p. 40.
j. Although Justice Cardozo had been ill and away from the bench since December 1937 (United Press, “Supreme Court Liberal Succumbs to Heart Ailment in N.Y.,” Washington
Post, July 10, 1938, p. M1), a definite need to nominate a new Justice did not occur until Cardozo’s death on July 9, 1938.
k. Justice Brandeis had been away from the bench for a month, recovering from a heart attack, prior to announcing his retirement (United Press, “Justice Brandeis, Dean of Supreme
Court, Quits,” Los Angeles Times, Feb. 14, 1939, p. 1). Nonetheless, his retirement was considered abrupt, suggesting that President Roosevelt had little advance notice to consider
a successor.
l. It is unclear from the historical record whether the President learned of Justice McReynolds’s desire to retire by letter, personal conversation, etc.
m. Although Chief Justice Hughes’s retirement due to age and poor health had been “rumored some months” prior to submission of his formal retirement letter (Walter Trohan, “Hughes
Retires From Court,” Chicago Daily Tribune, June 3, 1941, p. 1), the definite need for a new nominee did not arise until Hughes announced his retirement.
n. Justice Byrnes resigned at President Roosevelt’s request on Oct. 3, 1942, becoming Director of Economic Stability. Roosevelt was, therefore, aware of an impending vacancy on
the Court prior to the formal resignation, although the precise date is unclear. For a summary of Byrnes’s transition from the Court to his new post, see Associated Press, “Byrnes
Resigns From Bench in Letter to President,” New York Times, Oct. 4, 1942, p. 45.
o. Although President Truman did not announce Justice Roberts’s intention to retire until July 5, 1945 (United Press, “Morganthau and Roberts Resign,” Los Angeles Times, July 6,
1945, p. 1), Justice Roberts’s retirement letter is dated June 30, 1945. Truman received the letter on that date “or soon thereafter” (e-mail communication between CRS
Information Specialist Dana Ely and Truman Library Archivist Randy Sowell, Sept. 2, 2005).
p. Congress was not in session when Chief Justice Vinson died on Sept. 8, 1953 (U.S. Congress, Joint Committee on Printing, 2003-2004 Official Congressional Directory: 108th
Congress (Washington: GPO), p. 519). President Eisenhower recess-appointed Earl Warren as Chief Justice on Oct. 2, 1953 and nominated him to the Court, on Jan. 11, 1954,
after Congress reconvened for the second session of the 83rd Congress. Therefore, although the interval between the starting date (Sept. 8, 1953, as shown in Table 1) and
announcement date (Jan. 11, 1954) is 125 days, and the entire interval from the starting date until final Senate action (Mar. 1, 1954) is 174 days, the President’s actual decision-
making timetable could also be classified as 24 days, or the interval between Vinson’s death (Sept. 8, 1953) and Eisenhower’s recess appointment of Chief Justice Warren (Oct.
2, 1953). Both intervals are used to calculate the median elapsed time from vacancy to nomination announcement. Nonetheless, the long intervals have a minimal impact on
computing the median durations between stages in the process because the median is less sensitive than the mean to extremely high or low values.

---

CRS-69
q. Congress was not in session when Justice Minton submitted his retirement letter to the President on Sept. 7, 1956 (U.S. Congress, Joint Committee on Printing, 2003-2004
Official Congressional Directory: 108th Congress,\ (Washington: GPO), p. 519). President Eisenhower recess-appointed William J. Brennan as Associate Justice on Oct. 15,
1956, and nominated him to the Court, on Jan. 14, 1957, after Congress convened for the first session of the 85th Congress. Therefore, although the interval between the starting
date (Sept. 7, 1956, as shown in Table 1) and announcement date (Jan. 14, 1957) is 129 days, and the entire interval from the starting date until final Senate action (Mar. 19,
1957) is 193 days, the President’s actual decision-making timetable could also be classified as 38 days, or the interval between Brennan’s retirement announcement (Sept.
7, 1956) and Eisenhower’s recess appointment of Justice Brennan (Oct. 15, 1956). Both intervals are used to calculate the median elapsed time from vacancy to nomination
announcement. Nonetheless, the long intervals have a minimal impact on computing the median durations between stages in the process because median is less sensitive
than the mean to extremely high or low values.
r. Whether President Eisenhower first learned of Justice Reed’s retirement through the press conference or a letter from Reed is unclear. Contemporary media coverage mentioned
a press conference and a letter to Eisenhower (Edward T. Folliard, “Reed Is Retiring From High Court,” Washington Post, Feb. 1, 1957, p. A1). However, political scientist
Artemus Ward’s account asserts that Reed announced his retirement through a press conference (Ward, Deciding to Leave, pp. 162-163). Regardless, both events occurred on
Jan. 31, 1957. For the Jan. 31 correspondence between Reed and Eisenhower, see “Letter to Stanley Reed Regarding His Retirement From Active Service as An Associate Justice
of the Supreme Court,” U.S. National Archives and Records Administration, Office of the Federal Register, Public Papers of the Presidents of the United States: Dwight D.
Eisenhower, 1957 (Washington: GPO, 1958), pp. 109-110.
s. Congress was not in session when Burton submitted his retirement letter to the President on Oct. 6, 1958 (U.S. Congress, Joint Committee on Printing,2003-2004 Official
Congressional Directory: 108th Congress (Washington: GPO), p. 519). President Eisenhower recess-appointed Potter Stewart as Associate Justice on Oct. 14, 1958, and nominated
him to the Court, on Jan. 17, 1959, after Congress convened for the first session of the 86th Congress. Therefore, although the interval between the starting date (Oct. 6,
1958, as shown in Table 1) and nomination date (Jan. 17, 1959) is 103 days, and the entire interval from the starting date until final Senate action (May 5, 1959) is 211 days,
the President’s actual decision-making timetable could also be classified as 8 days, or the interval between Burton’s retirement announcement (Oct. 6, 1958) and Eisenhower’s
recess appointment of Justice Stewart (Oct. 14, 1958). Both intervals are used to calculate the median elapsed time from vacancy to nomination announcement. Nonetheless,
the long intervals have a minimal impact on computing the median durations between stages in the process because the median is less sensitive than the mean to extremely high
or low values.
t. This information is based on e-mail communication between CRS Information Specialist Dana Ely and Kennedy Library Reference Technician Sharon Kelly, Sept. 14, 2005.
u. Aug. 28, 1962, is the only definitive date which can be established based on available data, as the earliest point at which President Kennedy learned of Justice Frankfurter’s intention
to retire. However, President Kennedy’s quick nomination of Goldberg, and Justice Frankfurter’s poor health in the weeks leading up to his retirement, suggest that President
Kennedy was considering prospective nominees well before Frankfurter stepped down. Kennedy’s letter to Justice Frankfurter accepting his retirement references a visit the
President paid to Frankfurter to check on his health sometime during the summer of 1962 (U.S. National Archives and Records Administration, Office of the Federal Register,
Public Papers of the Presidents of the United States: John F. Kennedy, 1962, (Washington: GPO, 1963), p. 656). According to Kennedy Library Reference Technician Sharon
Kelly, Kennedy’s office files suggest that correspondence between Frankfurter, Special Assistant for National Security Affairs McGeorge Bundy, and the President would have
alerted Kennedy to Frankfurter’s declining health around May 17, 1962 (e-mail communication between CRS Information Specialist Dana Ely and Kennedy Library Reference
Technician Sharon Kelly, Sept. 14, 2005).
v. President Lyndon B. Johnson unexpectedly nominated Justice Goldberg to be U.S. Ambassador to the United Nations following the death on July 14, 1965, of the previous
ambassador, Adlai E. Stevenson. See Carroll Kilpatrick, “Goldberg is Named to Stevenson Post,” Washington Post, July 21, 1965, p. A1.

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w. Despite the fact that Justice Clark announced his forthcoming retirement on Feb. 28, 1967, historical evidence suggests that Johnson might have prompted Clark’s retirement as
early as Jan. 1967, when the President prepared to nominated Justice Clark’s son, Ramsey, to be Attorney General. “On January 25, 1967, Johnson told Ramsey that he could
only be named the permanent attorney general if his father stepped down from the Court” (Ward, Deciding to Leave, p. 170).
x. Although President Johnson did not announce Chief Justice Warren’s retirement until June 26, he received Warren’s retirement letter on June 13, 1968 (U.S. National Archives and
Records Administration, Office of the Federal Register, Public Papers of the Presidents of the United States: Lyndon B. Johnson, 1968-69, vol. 1 (Washington: GPO, 1966),
p. 746).
y. Although a specific opportunity to name a new Associate Justice did not arise until the Fortas Chief Justice nomination on June 26, 1968, it was reported that “[s]ome Texans at the
Capitol are sure that Mr. Johnson has planned for the last four years to name Thornberry to the Supreme Court before he [Johnson] left office,” (Richard L. Lyons, “Homer
Thornberry: ‘Constructive Liberal,’ Close LBJ friend,” Washington Post, June 27, 1969, p. 1).
z. Jan. 20, 1969 (the date of Richard M. Nixon’s inauguration), is used as the starting date for the vacancy because it marks the beginning of President Nixon’s official decision-making
powers. After the Abe Fortas Chief Justice nomination failed, President Johnson announced on Oct. 2, 1968, that he would not name another nominee (U.S. National Archives
and Records Administration, Office of the Federal Register, Public Papers of the Presidents of the United States: Lyndon B. Johnson, 1968-69, vol. 2 (Washington: GPO, 1966),
p. 509). Eight days later, Johnson elaborated on his decision. The President wrote that although he would have made another nomination in “ordinary times,” the situation was
extraordinary and that, “Under the circumstances, the foundations of government would be better served by the present Chief Justice [Earl Warren] remaining [in office] until
emotionalism subsides, reason and fairness prevail (U.S. National Archives and Records Administration, Office of the Federal Register, Public Papers of the Presidents of the
United States: Lyndon B. Johnson, 1968-69, vol. 2 (Washington: GPO, 1970), p. 1024). On Dec. 3, 1968, Chief Justice Warren informed President-elect Richard M. Nixon that
he was willing to continue serving until a successor was confirmed (“Statement by the Chief Justice,” Dec. 4, 1968, Earl Warren Papers, Manuscript Division, Library of Congress,
Washington, DC). In a May 1969, conversation with reporters, President Nixon offered an unusually detailed discussion of his decision-making process surrounding the Burger
nomination. Nixon reported that he thought “it would not be a proper mark of respect for the Court and for the Chief Justice to have a nomination go down, say, in February
or March, and then have possibly the Senate hearings and the like at a time that the Court was sitting,” and that his target date for a nomination decision was between May 1 and
June 1, 1968 (U.S. National Archives and Records Administration, Office of the Federal Register, Public Papers of the Presidents of the United States: Richard Nixon, 1970,
(Washington: GPO, 1971), p. 390).
aa Chief Justice Warren Burger reportedly “hint[ed] at a possible vacancy” on the Court in a letter to President Gerald Ford on Nov. 10, 1975, and offered “factors for [the President]
to consider when appointing a new justice” (e-mail communication between CRS Information Specialist Dana Ely and Ford Library Archivist Technician Joshua Cochran, Sept.
12, 2005). Justice Douglas’s health had been in question since Dec. 31, 1974, when he suffered a stroke (John P. MacKenzie, “Douglas Retires From Court,” Washington Post,
Nov. 13, 1975, p. A1). However, President Ford would have had relatively little time to consider a replacement Justice since he did not assume the presidency until Aug. 9, 1975,
and a vacancy did not officially arise until Justice Douglas’s Nov. 12, 1975 retirement letter.
bb. Although Justice Stewart’s decision to retire was not made public until June 18, 1981, Stewart delivered a letter, stating his desire to retire, to President Ronald Reagan on May
18, 1981 (U.S. National Archives and Records Administration, Office of the Federal Register, Public Papers of the Presidents of the United States: Ronald Reagan, 1981
(Washington: GPO, 1982), p. 539).
cc. Although Chief Justice Burger officially notified President Reagan of his desire to retire, by letter on June 17, 1986, Burger privately informed Reagan of his plans on May 27,
1986 (“Remarks on the Resignation of Supreme Court Chief Justice Warren E. Burger and the Nominations of William H. Rehnquist To Be Chief Justice and Antonin Scalia
To Be an Associate Justice,” U.S. National Archives and Records Administration, Office of the Federal Register, Public Papers of the Presidents of the United States: Ronald
Reagan, 1986, vol. 2 (Washington: GPO, 1989), p. 781).

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dd. The May 27, 1986, date is used because Chief Justice Burger’s intention to retire (known to President Reagan on May 27) alerted the President of the forthcoming opportunity
to elevate Rehnquist from Associate Justice to Chief Justice, and in turn, of the opportunity to nominate someone to succeed Rehnquist as an Associate Justice.
ee. President Reagan reportedly “had no advance warning of the resignation” (Al Kamen, “Nixon-Appointed Democrat Cites Age, Health,” Washington Post, June 27, 1987, p. A1).
ff. Judge Ginsburg withdrew his name from consideration before being officially nominated, but after President Reagan had announced his intention to nominate Ginsburg. Among
other controversies surrounding the nomination, Ginsburg admitted shortly before withdrawing that he “had smoked marijuana while a Harvard law professor” (Lou Cannon
and Ruth Markus, “Judge Kennedy Likely Choice,” Washington Post, Nov. 9, 1987, p. A6).
gg. On the details of transferring Justice White’s retirement letter to the President beginning on Mar. 18, 1993, see Dennis J. Hutchinson, The Man Who Was Once Whizzer
White: A Portrait of Justice Byron R. White (New York: Free Press , 1998, p. 437) and Ward, Deciding to Leave, p. 183, n. 183. One of Justice White’s former law clerks,
by then working in the White House, delivered the letter on the Mar. 19, 1993.
hh. Jan. 1, 1994, is an estimation, since Justice Blackmun reportedly “told President Bill Clinton at Renaissance Weekend over the New Year’s holiday in Hilton Head, S.C., that this
would be his last term (Tony Mauro, “How Blackmun Hid Retirement Plans,” New Jersey Law Journal, Apr. 25, 1994, p. 18. ). Clinton publicly announced Blackmun’s retirement
on April 6, 1994. (U.S. National Archives and Records Administration, Office of the Federal Register, Public Papers of the Presidents of the United States: William J. Clinton,
1994, vol. 1 (Washington: GPO), 1995, p. 597).

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Table 3. Median Duration in Days Between Major Events in the Supreme Court Nomination-and-Confirmation
Process, 1900-2005
Time Period
Median Number of Days Elapsed From . . .a
President Apparently
Nomination
First Hearing to
Committee Final
Nomination
President Apparently
Learned of Actual or
Announcement to
Committee Final
Action to Senate
Announcement to
Learned of Actual or
Prospective Vacancy to
First Hearing
Action
Action
Final Senate
Prospective Vacancy
Nomination
Action
to Final Senate Action
Announcement
1900-1980
34
13
9
3
28c
59
1981-2005
18
51
12
9b
84d
113
1900-2005
29
15
9
5
50
74
Sources: Durations for major intervals in the nomination-and-confirmation process were computed by the CRS authors. As described in the text, this research relied on historical
newspapers, official presidential papers, and CRS correspondence with Presidential Libraries. Ward’s Deciding to Leave was especially useful in compiling data on the reasons why
Justices left the bench.
a. In Table 3, the median amount of time from vacancy to final Senate action within each time period does not necessarily equal the sum of the medians for each stage in the nomination-
and-confirmation process. Likewise, the median length of time for all Senate actions (i.e., from nomination announcement to final Senate action) within each time period does not equal
the sum of the medians for each stage. The median identifies the mid-point for individual sets of observations. Because each stage of the process can have a different number of
observations, and because the data are also not a “normal” (i.e., “bell-shaped”) distribution, the sum of the medians for individual stages generally is not equal to the median for the
entire period. For more information, see chapter 4 in Ya-lun Chou, Statistical Analysis for Business and Economics (New York: Elsevier, 1989).
b. The actual median is 8.5 days, which is rounded to 9 days for the purposes of this report.
c. The actual median is 27.5, which is rounded to 28 days for the purposes of this report.
d. The medians for the interval (duration) between the nomination announcement and final Senate action from 1981-2005 and 1900-2005, listed in Table 3 do not include John G.
Roberts’s Chief Justice confirmation because of the unusual circumstances surrounding the withdrawal of Roberts’s nomination for Associate Justice, and his re-nomination for Chief
Justice. The median duration for Senate action when including the John G. Roberts Chief Justice confirmation is 81 days (rounded from 80.5) from 1981-2005 and 50 days from 1900-
2005.
Note: For a listing of all Supreme Court nominations made during the 1900-2005 period and, for each nomination, the dates of the “major events” accounted for in the columns in Table
3, see the preceding Table 1. For a listing, for each nomination, of the duration in da

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