Order Code RL33247 CRS Report for Congress Received through the CRS Web Supreme Court Nominations: Senate Floor Procedure and Practice, 1789-2005 January 24, 2006 Richard S. Beth Specialist in the Legislative Process Government and Finance Division Betsy Palmer Analyst in American National Government Government and Finance Division Congressional Research Service ˜ The Library of Congress Supreme Court Nominations: Senate Floor Procedure and Practice, 1789-2005 Summary From 1789 through 2005, the President submitted to the Senate 157 nominations for positions on the Supreme Court (exclusive of the nomination of Samuel Alito, still pending at the end of 2005). Of these nominations, 145 received consideration on the floor of the Senate, and 121 were confirmed. Senate floor consideration of the 145 nominees to reach the floor breaks down relatively naturally into five patterns over time. First, from 1789 through about 1834, the Senate considered the nominations on the floor a day after they were received from the President. The second period (1835-1867) was distinguished by the beginning of referral of nominations to the Senate Committee on the Judiciary. The third period (1868-1921) was marked by rule changes that brought about more formalization of the process. During the fourth period (1922-1967), the Senate began using the Calendar Call to manage the consideration of Supreme Court nominations, and the fifth and final time period, 1968 to the present, is marked by more roll call votes on confirmations and the use of unanimous consent agreements to structure debate. Of the 121 votes by which the Senate confirmed nominees, 75 took place by voice vote and 46 by roll call, but on only 22 of the roll calls did 10 or more Senators vote against. Of the 36 nominations not confirmed, the Senate rejected 11 outright, and 12 others never received floor consideration (some because of opposition; others were withdrawn). The remaining 13 reached the floor but never received a final vote, usually because some procedural action terminated consideration before a vote could occur (and the President later withdrew some of these). Including nominations that received incomplete consideration, were rejected, or drew more than 10 negative votes, just 47 of the 157 experienced opposition that might be called “significant.” Of the 145 nominations that reached the floor, 100 received one day of consideration, while 24 received more than two days, including four on which floor action took seven days or more. Of these 145 nominations, optional procedural actions that could have been used to delay or block a confirmation vote occurred on 55, of which 25 involved procedural roll calls. Among a wide variety of procedural actions used, the more common ones have included motions to postpone and recommit, live quorum calls, and unanimous consent agreements. Neither extended consideration, the presence of extra procedural actions, nor the appearance of “significant” opposition affords definitive evidence, by itself, that proceedings were contentious. Some nominations considered for one day still faced procedural roll calls, and some considered for three days or more faced no optional procedures. On the other hand, nominations that underwent both more than two days of consideration and procedural roll calls were also most likely to experience “significant” opposition. At the other extreme, 76 of the 145 nominations to reach the floor were confirmed in a single day of action with neither optional procedural actions nor more than scattered opposition. This report will be updated to reflect action on additional nominees. Contents Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Historical Trends in Floor Consideration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Beginning Patterns, 1789-1834 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Committee Referral, 1835-1867 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Increased Formalization, 1868-1922 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 The Calendar Call Becomes Formalized, 1922-1967 . . . . . . . . . . . . . . . . . 10 Unanimous Consent Agreements, 1968 to present . . . . . . . . . . . . . . . . . . . 12 Characteristics of Floor Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Forms of Disposition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Varieties of Disposition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Dispositions and the Extent of Opposition . . . . . . . . . . . . . . . . . . . . . 18 Length of Floor Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Days of Floor Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Extended Consideration and Opposition . . . . . . . . . . . . . . . . . . . . . . . 22 Procedural Complexity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Optional Procedural Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Calling Up Nominations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Proceedings in the Course of Floor Action . . . . . . . . . . . . . . . . . . . . . 28 Procedural Complexity and Opposition . . . . . . . . . . . . . . . . . . . . . . . . 32 List of Tables Table 1. Supreme Court Nominations Receiving No Final Floor Action . . . . . . 17 Table 2. Dispositions of Supreme Court Nominations, Types of Vote, and Extent of Opposition Indicated . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Table 3. Length of Floor Action on Supreme Court Nominations . . . . . . . . . . . 22 Table 4. Procedural Actions Occurring During Floor Action on Supreme Court Nominations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Appendix I. Selected Characteristics of Floor Proceedings on Supreme Court Nominations, 1789-2005 . . . . . . . . . . . . . . . . . . . . . . . . . . 33 Appendix II. Selected Characteristics of Committee Action on Supreme Court Nominations, 1789-2005 . . . . . . . . . . . . . . . . . . . . . . . . . . 37 Supreme Court Nominations: Senate Floor Procedure and Practice, 1789-2005 Introduction The nomination of a Justice to the Supreme Court of the United States is one of the rare moments when all three branches of the federal government come together: the executive branch nominates, and the legislative branch considers the nomination, deciding whether the nominee will become a member of the high court. Presidents and Senators have said that, short of declaring war, deciding who should be on the Supreme Court is the most important decision they will make while in office. The Constitution, in Article II, Section 2, divides the responsibility for selecting and confirming members of the Supreme Court between the President and the Senate. It says that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for….” The Senate has traditionally deferred to the President on nominations to the Cabinet, but they have shown less deference to a President’s choice for the Supreme Court.1 Of the 157 nominations Presidents made to the Supreme Court since 1789, 36 were not confirmed. Of the hundreds of cabinet officials nominated over the same time period, just 15 were rejected.2 Some nominations to the Supreme Court have won confirmation with little debate and no intervening procedural actions, while others have been debated extensively, with significant resort to parliamentary procedures during consideration. It appears that the Senate has never felt strictly bound by past practice in considering these nominations, but that it has used procedures and forms of consideration that the body has at the time deemed appropriate to each individual case. Nothing in Senate rules, procedures, or practice requires that the Senate proceed to a final vote on a nomination, for example, although in most instances it has done so. Of the 157 nominations for the Supreme Court, 12 never reached the floor and 13 others never received a final vote, although they were debated on the floor. 1 Michael J. Gerhardt, The Federal Appointment Process: A Constitutional and Historical Analysis (Durham, NC: Duke University Press, 2000), p. 162; archived CRS Report 89-253, Cabinet and Other High Level Nominations that Failed to be Confirmed, 1789-1989, by Rogelio Garcia. For more information, Members of Congress and their staff should contact Betsy Palmer. 2 CRS Report RL31171, Supreme Court Nominations Not Confirmed, 1789-2004, by Henry Hogue; Cabinet and Other High Level Nominations that Failed to be Confirmed, 17891989. CRS-2 This report examines the ways in which the Senate has handled the 157 Supreme Court nominations the President has sent to the Senate in the past.3 As the purpose of this report is to examine the forms taken by Senate proceedings on these 157 nominations, it treats each nomination as a separate case.4 It is not couched in terms of the smaller number of different individuals nominated or the ultimate outcome the confirmation process may have had for each.5 Supreme Court confirmation debates, of course, do not occur in a vacuum. They are a product of the President making the choice, the state of the Senate at the time, the nominee and his or her views, and the prevailing mood of the country. These elements, while critical to understanding specific cases, are not considered in this report, and discussions of them can be found in other reports on the Supreme Court.6 This report focuses on answering a very basic question: what procedures or tools has the Senate used during consideration of Supreme Court nominees, how have they changed over time, and how those tools have affected the confirmation process. The process by which the Senate has considered these nominations has typically included several stages, from receipt and committee referral through committee consideration and reporting, to scheduling for floor action, followed by floor debate and a final vote. The emphasis of this report is on the 145 nominations on which some form of formal proceedings took place on the Senate floor, not on the ways in which the nominations might have been handled in committee or other pre-floor stages. The information presented was drawn from a comprehensive search of the Executive Journals of the Senate, which are its official record of procedural actions 3 This report does not include the Nov. 10, 2005, nomination of Samuel A. Alito, Jr., to be an Associate Justice of the Supreme Court because action on the nomination was not completed before the report’s publication. 4 A list of all 157 nominations appears as an appendix to this report, giving for each the full name, year, disposition, and information on the form of consideration. Discussion in the text identifies nominations by surname and year, facilitating reference to fuller information in the appendix. In cases in which an individual was nominated twice in the same year, the letters “a” and “b” are used after the date to distinguish the first from the second nomination. 5 The 157 nominations involved only 138 different individuals, because on 11 occasions, a President resubmitted the name of an individual previously nominated but not confirmed, and on another eight occasions, a President nominated either a sitting or a former Justice to be Chief Justice. Of the 138 individuals nominated, the Senate confirmed 115, leaving 23 on whom the Senate never took favorable action. Of the 115 confirmed, five never served because they declined the office, and one died before assuming it, so that 109 people (all but two of them men) have served as Justices of the Supreme Court. See CRS Report RL33225, Supreme Court Nominations, 1789-2005: Actions by the Senate, the Judiciary Committee, and the President, by Denis Steven Rutkus and Maureen Bearden. 6 See CRS Report RL31989, Supreme Court Appointment Process: Roles of the President, Judiciary Committee, and Senate, by Denis Stephen Rutkus, and CRS Report RL32821, The Chief Justice of the United States: Responsibilities of the Office and Process for Appointment, by Denis Stephen Rutkus. CRS-3 taken in relation to executive business (i.e., nominations and treaties, which are the forms of business submitted to the Senate by the President). The following discussion focuses on the proceedings by which the Senate has considered Supreme Court nominations on the floor and ways in which these proceedings have varied over the course of history. It first sketches the changing patterns of consideration that have been normal in successive historical periods since 1789, noting their relation to changes in the procedural rules and practice of the Senate. For each period, it not only describes normal and exceptional practice, but also provides examples of proceedings that were either typical or notable. The report then successively addresses three individual characteristics of floor action on these nominations: the dispositions the Senate made of them, the length of floor consideration, and the kinds of procedural action taken during consideration. Historical Trends in Floor Consideration Although the Constitution mandates a role for the Senate in the consideration of nominees to the Supreme Court, it does not include any specific method for doing so. The Senate has answered the basic question — what should the procedure be for consideration of nominations? — in different ways at different times. A review of all Supreme Court nominations since 1789 yields two general conclusions about the procedures used. First, the Senate has not felt bound to consider each nomination in exactly the same way that the others before it were considered. Although some Supreme Court nominations, for example, never reached the Senate floor (and hence, did not received a vote), the Senate spent numerous days debating the merits of other nominations. Neither of those practices has been routine, but their use shows how the Senate has reserved to itself the right to take the course of action that it believes best suits consideration of a particular nomination. This becomes even more clear when the Senate considers a well-known person for a Supreme Court seat. The Senate received, debated and confirmed the nomination of former President William Howard Taft to be Chief Justice on the same day, for example. Second, notwithstanding the variations in the confirmation system, the Senate’s process has tended to become longer and more formal over time. Although members of the first Supreme Court were confirmed just two days after their nominations were received, the norm in modern times has tended toward weeks of Senate consideration, if not months.7 Early in the Senate’s history, it was not typical for Supreme Court nominations to be referred to committee at all; by modern times, it was the norm for the Senate Committee on the Judiciary to spend significant time reviewing nominees. 7 CRS Report RL33118, Speed of Presidential and Senate Actions on Supreme Court Nominations, 1900-2005, by R. Sam Garrett, Denis Steven Rutkus, and Curtis W. Copeland. CRS-4 A study of the 157 nominations sent to the Senate finds that the Senate’s floor consideration of Supreme Court nominations breaks down relatively naturally into five patterns over time. Beginning Patterns, 1789-1834 During this time, the norm for Senate consideration of a Supreme Court nomination was that the chamber considered the nomination, as a matter of course, on the second day after the nomination had been received from the President. There was no routine referral to committee, although at least one nominee, Alexander Wolcott, was referred to a select committee in 1811 (his nomination was defeated). From the beginning, the Senate has considered nominations in executive session, that portion of the Senate’s business that was established to consider business that comes directly from the President (nominations and treaties). At this time, executive session also meant that the doors were closed, only Senators and select staff were permitted to be in the chamber and the proceedings were to remain secret.8 The journal which records the Senate’s action on a nomination, the Executive Journal, listed no motion to consider these early nominations, just a simple note that “the Senate proceeded to consider” the message from the President. The message from the President became the de facto method of organizing the nominations, apparently representing a precursor of the Calendar Call the Senate was to employ later. Of the 31 nominations sent to the Senate during this period, all 28 nominations that were confirmed were done by voice vote; the two rejections were by roll call (one nomination was considered by the Senate but left unfinished). Also, the norm for consideration during this period was one day of floor consideration for a nomination. Five nominations were considered for more than one day: the three nominations not confirmed, Wolcott, John Rutledge (1795) and John J. Crittenden (1828), and two others, that of Alfred Moore (1799) and Robert Trimble (1826). The first set of Senate rules, developed and adopted in 1789, did not include any specific provisions for handling nominations. In 1806, the Senate adopted a general revision of its rules and it included a new provision on nominations. This rule required that “when nominations shall be made in writing by the President of the United States to the Senate, a future day shall be assigned, unless the Senate unanimously direct otherwise.”9 Despite adoption of this rule, however, there is no indication in the Journal that the Senate either fixed a date for consideration of nominations when they were received, or that the Senate waived this rule. 8 The Senate decided to open its deliberations to the public on treaties and nominations in 1929. See “The Calendar Call Becomes Formalized, 1922-1967.” 9 U.S. Congress, Senate, History of the Committee on Rules and Administration, Senate Doc. 96-27, 96th Cong., 1st sess. (Washington: GPO, 1980), p. 10. The Senate has adopted general revisions of its rules just seven times since 1789, and this book includes each of these revisions. The Senate routinely makes changes to its rules in a piecemeal fashion, and sometimes the general revisions include changes that had actually been made earlier in time. To date, however, this book is the best source for changes in Senate rules over time. CRS-5 This pattern of consideration is shown in the confirmation of the very first Supreme Court, in the following case study. The Original Court, 1789. The court’s first six members, a Chief Justice and five Associate Justices, were nominated by President George Washington on September 24, 1789. The nominations were not referred to committee. These men were personally known to many, if not all, members of the Senate, and there was no extensive investigation into their background. On September 26, the Senate proceeded to consider each of the six men, and on each, “on the question to advise and consent thereto, it passed in the affirmative.”10 There is no indication of lengthy debate; all six nominations were confirmed on the same day, in the same way. John Jay was confirmed as Chief Justice, and John Rutledge, of South Carolina, James Wilson, of Pennsylvania, William Cushing, of Massachusetts, Robert H. Harrison, of Maryland, and John Blair, of Virginia, were confirmed as Associate Justices. Although the vast majority of nominations during this time was handled in the same way as the above, there were instances of extraordinary procedure, particularly when the nomination appeared to be controversial, as shown in the following case study. John Crittenden, 1828. On December 17, 1828, President John Quincy Adams nominated John Crittenden, a Kentucky lawyer, to be an Associate Justice of the Supreme Court, to replace Justice Robert Trimble, who had died. The nomination took place after Adams’ successor, Andrew Jackson, had been elected in November. Opposition to Crittenden by supporters of Jackson prevented the Senate from confirming him.11 Crittenden’s supporters did not give in without a fight, and the Senate debated the nomination for nine days. In an unusual twist, the Senate debated a resolution on the nomination, rather than the nomination itself. The resolution said: Resolved, That it is not expedient to act upon the nomination of John I. Crittenden, as a Justice of the Supreme Court of the United States, until the Senate shall have acted finally on the report of the Judiciary Committee, relative to the amendment of the Judicial System of the United States.12 A lengthy amendment was offered to the above resolution, which, in essence, said that it was the duty of the President to fill vacant slots no matter when in the course of the administration they occurred. An amendment to the amendment was then offered which stated: 10 Senate Executive Journal, Sept. 26, 1789, p. 29, available at [http://memory.loc.gov/ cgi-bin/query/r?ammem/hlaw:@field(DOCID+@lit(ej00135))], accessed on Jan. 20, 2006. 11 J. Myron Jacobstein and Roy M. Mersky, The Rejected: Sketches of the 26 Men Nominated for the Supreme Court but Not Confirmed by the Senate (Milpitas, CA: Toucan Valley Publications, 1993), pp. 19-23. 12 Senate Executive Journal, Jan. 26, 1829, p. 626. CRS-6 That the duty of the Senate to confirm or reject the nominations of the President, is as imperative as his duty to nominate; that such has heretofore been the settled practice of the government; and that it is not now expedient or proper to alter it.13 The Senate rejected this amendment to the amendment by voice vote, voted 1724 to reject the original amendment, and then voted 23-17 on February 12, 1829, to adopt the original resolution declaring it “not expedient” to act on the Crittenden nomination. By this action, the early Senate declined to endorse the principle that proper practice required it to consider and proceed to a final vote on every nomination. Committee Referral, 1835-1867 A new pattern of bringing up and considering Supreme Court nomination emerged in 1835, when the Senate began to refer nominations routinely to the Senate Committee on the Judiciary, which had been created in 1816. Once the committee reported the nomination to the Senate, the chamber tended to act upon it immediately. In most cases, the nomination was reported and then confirmed, almost as one action. As with the previous practice, most of these confirmations were accomplished by voice vote. In some cases, a Senator, apparently opposed to a particular nomination, would move to table the nomination immediately after it was reported from committee. The effect of a motion to table, however, was not the same as it is in current Senate parliamentary practice, where the motion, if successful, has the same effect as rejection. At this point in the development of the Senate, it appears that the motion to table had an effect more like a motion to postpone, and was used as a way to avoid taking action on the nomination on that day. This period lasted until roughly 1867. When the Senate considered the nomination of Roger B. Taney to be Chief Justice in 1835, for example, the nomination was immediately tabled after the committee reported it. Later, however, the Senate voted 25-19 to proceed to consider the nomination, and he was confirmed. The nomination of Robert C. Grier shows the typical features of this time period. Robert C. Grier, 1846. President Polk nominated Grier on August 3, 1846 to replace Henry Baldwin, who had died. Grier had served as president judge of the District of Allegheny Court in Pennsylvania. The nomination was referred to the Judiciary Committee, which reported it out the next day. The Senate considered the nomination immediately after it was reported and confirmed Grier by voice vote.14 Tyler Presidency, 1844-1845. The major departure from the normal pattern of consideration for Supreme Court nominations during this time period took place during the presidency of John Tyler. He had been elected Vice President on the 13 14 Ibid, p. 638. David G. Savage, ed., Guide to the U.S. Supreme Court, 4th ed. (Washington: CQ Press, 2004), pp. 945-946. CRS-7 Whig ticket with William Henry Harrison in 1840. Harrison died 31 days after taking the oath of office, and Tyler became President. His relations with the Whig party were strained, and after he vetoed a banking bill, Tyler’s entire cabinet but for one resigned, and Tyler was later expelled from the Whig party. Not surprisingly, Tyler had difficulties winning confirmation of his Supreme Court nominations from a Whig-dominated Senate.15 Tyler tried nine times to win Senate confirmation of a Supreme Court nomination, but he was successful only once, with the nomination of Samuel Nelson in 1845. Tyler nominated four other men over the course of more than a year to fill vacancies on the court, he sent the name of Edward King to the Senate twice, the name of John C. Spencer twice and Reuben H. Walworth three times. The Senate responded with disdain. Four times the Senate voted to table a Tyler nomination (and took no further action on them); once, on the 1844 nomination of Spencer, the Senate outright rejected him by a vote of 21-26. The standoff between the President and the Senate took on such intensity that in one day, June 17, 1844, Tyler changed his mind about whom to nominate twice. At the time, the Senate had tabled the nomination of Walworth to be an Associate Justice. According to the Senate Executive Journal, Tyler sent the following message to the Senate: I have learned that the Senate has laid on the table the nomination, heretofore made, of Reuben H. Walworth, to be associate justice of the Supreme Court, in place of Smith Thompson, deceased. I am informed that a large amount of business has accumulated in the second district, and that the immediate appointment of a judge for that circuit is essential to the administration of justice. Under those circumstances, I feel it is my duty to withdraw the name of Mr. Walworth, whose appointment the Senate by their action seems not now prepared to confirm, in the hopes that another name might be more acceptable. The circumstances under which the Senate heretofore declined to advise and consent to the nomination of John C. Spencer have so far changed as to justify me in my again submitting his name to their consideration. I, therefore, nominate John C. Spencer, of New York, to be appointed as an associate justice of the Supreme Court, in the place of Smith Thompson, deceased.16 JOHN TYLER Tyler then sent several other appointment messages to the Senate, which were read. The Senate confirmed several of the other appointments. The journal then records a dispute over whether the Senate should receive a further message from the President, as the time previously set to end the Congress had arrived. Senators agreed to hear the message, which read “I withdraw the nomination of John C. Spencer to be associate justice of the Supreme Court of the United States, and I renominate Reuben H. Walworth to be associate justice of the Supreme Court of the United States.” 15 Jacobstein and Mersky, The Rejected, Sketches of the 26 Men Nominated for the Supreme Court but Not Confirmed by the Senate, pp. 33-41. 16 Senate Executive Journal, June 17, 1844, p. 353. CRS-8 A motion was made to consider Walworth, but objection was heard, and the Senate then adjourned sine die.17 Increased Formalization, 1868-1922 In 1868, the Senate passed another general revision of its rules. It contained a lengthier and far more specific method for dealing with nominations. When nominations shall be made by the President of the United States to the Senate, they shall unless otherwise ordered by the Senate, be referred to appropriate committees; and the final question on every nomination shall be “Will the Senate advise and consent to this nomination?” which question shall not be put on the same day on which the nomination is received nor on the day on which it may be reported by committee, unless by unanimous consent of the Senate. Nominations neither approved nor rejected by the Senate during the session at which they are made shall not be acted upon at any succeeding session without being again made by the President; and if the Senate shall adjourn or take a recess for more than thirty days, all nominations pending and not finally acted upon at the time of such adjournment or recess shall be returned to the President and shall not be afterwards acted upon, unless again submitted to the Senate by the President; and all motions pending to reconsider a vote upon a nomination shall fall on such adjournment or recess; and the Secretary of the Senate shall thereupon make out and furnish to the heads of departments and other officers the list of nominations rejected or not confirmed, as required by law.18 This rule codified what had become the practice of the Senate, at least in regard to Supreme Court nominations, since 1835 of referring the nomination to committee. It also called for at least a one day layover from the time a committee reported on a nomination to Senate action on that nomination, unless the Senate decided by unanimous consent to do otherwise. Despite the rule, however, the Senate did tend to decide otherwise. Of the 41 nominations in this period, nearly half, 18, were considered by the Senate by unanimous consent on the same day they were reported out of committee. Nine nominations were considered within two days of the committee’s report. The remaining 10 nominations which saw floor action came up on the floor more than two days after the committee reported, sometimes significantly more than two days later. In the case of Melvin W. Fuller to be Chief Justice, for example, the Senate took up the nomination 17 days after the committee reported it. In a change from past practice, the Senate Committee on the Judiciary began issuing reports that characterized the committee’s support for the nomination: the committee would usually report favorably, but sometimes adversely. Prior to 1869, the committee had simply reported the nomination, without such characterizations. 17 Ibid, p. 354. 18 History of the Committee on Rules and Administration, p. 26. CRS-9 Roll call votes on the confirmation of the pending nomination became more common during this period, occurring on 16 of the 41 nominations. The Senate rejected three nominations decided by roll call votes and confirmed the 13 others. The nomination of William B. Woods illustrates the key patterns of consideration at this time. William B. Woods, 1880. When Associate Justice William Strong resigned, President Rutherford B. Hayes looked for a southerner to replace him. Although Woods had been born and educated in the north, he had moved to Alabama following the Civil War. Hayes nominated Woods on December 15, 1880. The nomination was referred to the Judiciary Committee, which reported it favorably on December 20. The next day the Senate considered the nomination, and by a vote of 39-8 the Senate confirmed Woods.19 During this period, confirmation ceased to be virtually automatic for Supreme Court nominations, even when the nominee was a sitting Senator, as illustrated by the case of George E. Badger. George E. Badger, 1853. On January 10, 1853, President Millard Fillmore nominated George E. Badger to be an Associate Justice, to replace Justice John McKinley, who had died. Although Fillmore, a Whig, was a “lame duck” President following the fall election of Democrat Franklin Pierce, he nevertheless desired to place a nominee on the Supreme Court. Badger, who was an incumbent Senator from North Carolina and who had served as Secretary of the Navy under Presidents Harrison and Tyler, would seem to have been a good choice. “It was thought that the Senate would exercise Senatorial courtesy and not reject a fellow a Senator.”20 The Senate, however, was controlled by Democrats, by a margin of 38 Democrats, 22 Whigs and 2 Free Soilers. The Senate debated the Badger nomination for portions of four days. Several times the nomination was postponed, and the Senate voted 26-25 to adjourn during one day of debate on the nomination. Finally, on February 11, the Senate agreed by a vote of 26-25 to postpone consideration of the nomination until March 4, the date when the term of the Congress would expire and the new President would take office. Debates on Supreme Court nominations during these years still took place behind closed doors, and Senators were supposed to maintain the secrecy of these proceedings. The nomination of Ebenezer Rockwood Hoar is one of the few instances in which some information is available about what went on during the Senate debate. Ebenezer Rockwood Hoar, 1869. Hoar, who was serving as Attorney General, was nominated for the Supreme Court by President Grant in 1869. Republicans then controlled the Senate by a large margin, 62-12, and it was thought, 19 20 Savage, Guide to the U.S. Supreme Court, pp. 958-959. Jacobstein and Mersky, The Rejected, Sketches of the 26 Men Nominated for the Supreme Court but Not Confirmed by the Senate, pp. 53-59. CRS-10 at first, that Hoar would have no trouble winning confirmation. But, as it turned out, Hoar had badly alienated his Senate constituency as Attorney General during implementation of the law which created the circuit court system in early 1869. The law created a series of new federal judgeships, and Hoar was responsible for choosing names to recommend to the President for filling these positions. Hoar undertook the job without consulting Senators on those positions. According to Hoar’s biography, “Nearly every Senator had a candidate of his own for the Circuit Court, but in almost every instance the President took the Attorney General’s advice.” The same biography also notes that “Unhappily, the judge’s manner in discharging his duty was not engaging. He had the plain speech and trying sincerity of latitude 42 degrees N., in an extreme degree, and it proved hard to bear at Washington.”21 The Senate received Hoar’s nomination on December 15, 1869. It was referred to the Judiciary Committee and on December 22 the committee reported it out with an adverse recommendation. The Senate began debate on the nomination on the same day it was reported. A motion was offered to adjourn, which failed by a vote of 23-31, as was a motion to table the nomination, which also failed 24-30. But supporters of the nomination evidently saw the writing on the wall and eventually agreed later that same day, by voice vote, to table the nomination, which, at that time, still meant only to delay further consideration of the nomination, and not necessarily to kill it. In a letter to Hoar, Massachusetts Senator Henry Wilson said it had been a difficult fight. “I write simply to say that your friends for more than four hours battled for you, that all was said and done that could be. When it was clearly seen that a majority had determined on a vote of rejection, we struggled for more than two hours against coming to a vote, before we secured an adjournment. Never have I seen such action in the Senate.” Another letter, from J.D. Cox, a former House Member who was then Secretary of the Interior, said he had met with several senators about the nomination fight. He said of those opposed to Hoar: “They were determined to be content with nothing but a prompt rejection, and did not even consent to a motion to table the business, after four hours exciting struggle, until [Alexander G.] Cattell, [a Senator from New Jersey] told them he would make dilatory motions all night before he would permit such an outrage. The result was the tabling of the question, with (as the opposition claim) an understanding that it shall not be again taken up.”22 The Senate reconvened in 1870 and on February 3, rejected Hoar’s nomination by a vote of 24-33. The Calendar Call Becomes Formalized, 1922-1967 Beginning in 1922, the Senate began to call up Supreme Court nominations under a system known as the Call of the Calendar or a Calendar Call. Literally, the 21 Moorfield Storey and Edward W. Emerson, Ebenezer Rockwood Hoar: A Memoir (Boston: Houghton Mifflin Company, 1911), p. 182. 22 Ibid., pp.189-190, 191. CRS-11 Senate would consider the nominations that had been reported by committee and placed on the Executive Calendar in the order in which they appeared on that calendar. Under this system, there was no need to make a motion or ask unanimous consent to take up a Supreme Court nomination. The Senate would instead begin with the first available nomination and work its way through the calendar until reaching the Supreme Court nomination. This appears to be a formalization of the process used from 1868 to 1922. For 20 of the 30 Supreme Court nominations during this time period, the nomination came up when their place on the calendar had been reached. For nominations that might have been experiencing difficulty, the Senate could pass over a nomination when it had been reached on the call of the calendar. It would come up again the next time the Senate took up the calendar. The Senate also called up several nominations out of order by unanimous consent during this time. This procedure was used, particularly, for those nominations on which there was no controversy, such as Edward T. Sanford in 1923 and Byron White and Arthur J. Goldberg in 1962. Another major development took place also during this time: debate on nominations became public. After years of debating the issue, in 1929 the Senate decided to conduct its executive business (consideration of treaties and nominations) in open session. Increasingly in the preceding years, although the doors had been closed and debate on nominations was supposed to remain secret, very often detail of the sessions would leak out to the press. In addition, the rule of secrecy had been set aside several times, so that certain debates, such as that on Louis D. Brandeis to be an Associate Justice in 1916, could be opened to the public. The immediate trigger for the rules change was the disclosure, by the United Press, of the roll call vote on the nomination of Roy O. West to be Secretary of the Interior. Soon after, UP also published the vote on the nomination of former Senator Irvine Lenroot to be a judge of the Customs Court of Appeals. The Senate Rules Committee began an investigation into who leaked the Lenroot vote, which it was forced, for a variety of reasons, to hold in open session. The reporter, Paul Mallon, refused to disclose who his source had been, and the committee came to no conclusion on the matter. The Senate then considered a rules change that would have allowed a majority to vote to open any executive session. An alternative was proposed to make all debates open unless a majority voted to close them. The Senate approved this amendment, 69-5.23 The nomination of William O. Douglas shows how the Calendar Call operated when there was controversy. William O. Douglas, 1939. President Roosevelt nominated Douglas to be an Associate Justice on March 20, 1939, to replace retiring Justice Louis D. Brandeis. Douglas was the head of the Securities and Exchange Commission, and he seemed well-known to the Senate. The Senate Judiciary Committee referred the nomination 23 Joseph P. Harris, The Advice and Consent of the Senate (New York: Greenwood Press, 1968), pp. 249-255. CRS-12 to a subcommittee, which held a hearing at which no one testified. The subcommittee unanimously reported the nomination to the full committee, which then unanimously reported the nomination favorably to the full Senate on March 27. A news report stated that Douglas attended the full committee’s meeting so that he could “meet the members.”24 Between the committee session and floor debate, however, opposition developed. Senator Lynn Frazier of North Dakota argued Douglas had an improper relationship with the leaders of the New York Stock Exchange. The nomination was passed over twice on the Call of the Calendar, so that there could be full debate about the nomination. In particular, the first time the nomination was passed over it was because Senator Frazier could not be in the chamber, and he wanted the Senate to wait until he was able to be a part of the debate. Three live quorum calls were taken during consideration of the nomination. At the start of the debate on the nomination, a senator called for a live quorum, a move that was made again during the middle of Senator Frazier’s speech on the nomination. Finally, a live quorum was called just prior to the final speech of the nomination debate, made by Senator Maloney in favor of the nomination. The vote to confirm Douglas was 62-4, with 30 Senators not voting.25 Unanimous Consent Agreements, 1968 to present The modern era of Senate floor consideration has been dominated by unanimous consent agreements, agreements where Senators agree to limit their rights to talk and amend, so it should come as no surprise that the modern era of consideration of nominations is also predominantly about unanimous consent agreements. From about 1968 to the present, unanimous consent agreements have been reached that typically provide for when the Senate will take up nominations, limit and structure the debate and provide, in many instances, for a final confirmation vote. These agreements allow the Senate leadership to move to consider the nomination at a time, and in a way, they desire, instead of waiting until the nomination was reached on the Calendar. In fact, majority leaders began to ask unanimous consent to go into executive session to consider a specific Supreme Court nomination. This had been used as early as 1959 for the consideration of the nomination of Potter Stewart, and it was the method used, for example, when Majority Leader Mike Mansfield called up Harry A. Blackmun for Senate floor consideration in 1970. According to a later precedent of the Senate, a motion to go 24 “Senators Approve the Nomination of William O. Douglas,” New York Times, Mar. 25, 1939, p. 3; Associated Press, “Committee Approval Is Given to Douglas for Supreme Court,” Chicago Daily Tribune, Mar. 28, 1939, p. 3. 25 “Associate Justice of the Supreme Court of the United States,” remarks in Senate, Congressional Record, vol. 84, Apr. 3 and 4, 1939, pp. 3705-3713, 3773-3788. For more on Frazier’s concerns, see “Frazier Attacks Choice of Douglas,” New York Times, Apr. 4, 1939, p. 15. CRS-13 into executive session to consider a specific nomination is not debatable, though the nomination itself is.26 Another change also took place roughly around the same time. The Senate began to decide the question of confirmation by roll call votes routinely. Every Supreme Court nomination since 1967 to reach a final vote has received a roll call vote. Most nominations also received longer floor consideration than in any previous period. A further characteristic of the modern era is the advent of cloture. The Senate cloture rule, which permits a super-majority to limit the time for consideration of a matter by a roll call vote, did not exist until 1917, and could not be applied to nominations until 1949. Since then, supporters have attempted to use the motion to impose limits on the consideration of only three Supreme Court nominations. Cloture was successful on one of the three nominations, the 1986 nomination of William H. Rehnquist to Chief Justice. In 1971, Rehnquist had been confirmed despite the fact that a cloture vote on his nomination had failed. In 1968, the Senate failed to get cloture on the motion to proceed to consider the nomination of Abe Fortas to be Chief Justice, and the nomination was then withdrawn by the President. The 1971 nomination of William H. Rehnquist illustrates the use of cloture on a Supreme Court nomination. William H. Rehnquist, 1971. President Nixon named Rehnquist to be an Associate Justice of the Supreme Court on October 26, 1971, to replace retiring Justice John Marshall Harlan. Rehnquist had been Assistant Attorney General for two years and was well known on Capitol Hill, but opponents contended that he had shown insufficient commitment to civil rights and civil liberties.27 The Judiciary Committee held five days of hearings on the Rehnquist nomination, and opponents delayed the Committee vote on recommending the nomination to the full Senate a week. The Committee voted 12-4 to report the nomination favorably. The nomination was debated on the Senate floor for five days. A motion to invoke cloture, and limit debate on the nomination, failed on the fifth day by a vote of 52-42 (at that time, a two-thirds vote was required to succeed). A motion that consideration of the nomination be postponed until mid-January was defeated by a vote of 22-70. The Senate then agreed, by unanimous consent, to take a vote on the nomination at 5 p.m. that day. Rehnquist was confirmed by a vote of 68-26. Subsequently, in 1986, he was confirmed as Chief Justice of the United States by a Senate vote of 65-33, after proceedings in which cloture was invoked.28 26 Floyd M. Riddick and Alan S. Frumin, Riddick’s Senate Procedure, 101st Cong., 2nd sess., S. Doc. 101-28 (Washington: GPO, 1992), p. 941. 27 Glen Elasser, “Rehnquist Assailed as Segregationist,” Chicago Tribune, nov. 10, 1971, p. 5; Spencer Rich, “Rehnquist Civil Liberties Stance Eyed,” Washington Post, Oct. 26, 1971, p. A1. 28 “Court Nominees: Powell and Rehnquist Confirmed,” Congressional Quarterly Almanac (Washington: Congressional Quarterly Press, 1971), pp. 851-859. CRS-14 Characteristics of Floor Action Senate floor proceedings on Supreme Court nominations might be classified in terms of a wide variety of different characteristics, but the present study focuses chiefly on three that are readily identifiable and often referred to: ! ! ! the kind of vote (or other action) by which the Senate disposed of the nominations; the amount of time the Senate spent considering them on the floor; and the kinds of procedural action that occurred during their consideration. Each of these represents a salient element of the procedural context in which a nomination is considered. An understanding of the variety of forms that proceedings can take in each of these dimensions may help to illuminate practical concerns about courses of action that might occur on a given nomination. A focus on these three characteristics seems appropriate also because observers might often view each as an indication of the amount of controversy, contention, or opposition that surrounds a nomination. For example, if the Senate approves a nomination by a voice vote after a single day of consideration, during which no procedural actions occur, one might reasonably conclude that it involved little opposition or controversy. Nevertheless, as the following discussion makes clear, no simple equation between any of these three characteristics of consideration and the level of controversy is sustainable. Forms of Disposition Varieties of Disposition. An obvious initial distinction among the 157 nominations concerns the ways the Senate disposed of them. In the broadest terms, the Senate confirmed 121 and failed to confirm the remaining 36. This breakdown, however, conflates the 11 nominations that the Senate affirmatively rejected with the 25 on which no final vote occurred. Further, the 25 without a final vote include 12 that never received floor consideration at all and 13 that were called up, but on which the Senate never finished action. Clarifying the meaning and implications of various forms of disposition requires examining each of these subgroups. Nominations Confirmed. The 121 nominations confirmed make up 92% of the 132 on which the Senate reached a final vote. Well over half the 121 confirmations (75, or 62% of the 121 confirmed) took place by voice vote,29 and the remaining 46 (38% of confirmations) by roll call. Both voice and roll call votes have occurred at all periods of American history, but roll calls have become more common in recent decades. Since 1967, indeed, the Senate has evidently come to consider it appropriate always to take roll call votes on Supreme Court nominations. The closest vote by which a nomination was confirmed was that of Matthews (1881b), by 24-23; 29 For this purpose, confirmation by unanimous consent is included with voice votes. This form of disposition occurred at least 10 times, especially between 1923 and 1945. CRS-15 other close votes to confirm include those for Thomas (1991), by 52-48; Lamar (1888), by 32-28; and Clifford (1857), by 26-23. Nominations Rejected. The 11 Supreme Court nominations the Senate has rejected make up the remaining 8% of those on which the Senate reached a final vote. All 11 of these rejections occurred on roll calls; the Senate has never rejected a nominee by voice vote. As with confirmations, these 11 rejections occurred at points scattered throughout American history. The earliest was Rutledge for Chief Justice in 1795; the most recent, Bork in 1987. Bork’s was also the nomination rejected by the widest margin (42-58); the closest was that of Parker (1930), who was rejected by 39-41. The median margin of defeat, however, has been nine votes. Only in one instance (Spencer, 1844b) has a President resubmitted a nomination the Senate had previously rejected, and then, not surprisingly, without success. Nominations Without Final Vote. The Senate conducted no final vote on 25 nominations. Table 1 lists these 25 nominations and notes some pertinent contextual features of each. They make up 16% of the total number of high court nominations submitted, an indication of the extent to which the Senate has not always considered itself obligated to proceed to a final up-or-down vote on every Supreme Court nomination presented to it. These 25 nominations fall into two groups: (1) those on which the Senate initiated floor action, but never completed it; and (2) those that never reached the floor at all. For purposes of this report, all formal proceedings in the full Senate in relation to a nomination were counted as floor action. For example, a nomination was treated as receiving floor action even if the Senate never actually proceeded to its consideration, but did decline to grant unanimous consent to do so.30 Using this criterion, 12 nominations failed to reach the Senate floor, and 13 received floor action but never reached a final up-or-down vote. Overall, accordingly, the Senate has taken some floor action on 92% of all nominations submitted, and proceeded to a final vote on 84%. No Floor Action. The 12 occasions on which the Senate has failed to bring a nomination to the floor have also been scattered throughout history. The circumstances of their occurrence have varied, as well. Five of the 12 were submitted quite late in a session, so that the Senate may simply have lacked time to act. Six others were withdrawn before floor consideration could commence, including instances from Paterson in 1793 to Miers in 2005. The last of the 12 (Stanbery, 1866) became moot because Congress reduced the size of the Court, thereby abolishing the vacancy. This distribution of conditions for the lack of floor action suggests that the Senate has exhibited little tendency to leave Supreme Court nominations without a final vote simply out of reluctance to act, or to use inaction as an indirect means of denying confirmation. Four of the five late nominations, and two of the six 30 The use of this inclusive criterion of floor action accounts for certain small differences between the figures presented here and in CRS Report RL31171, Supreme Court Nominations Not Confirmed, 1789-2005, by Henry B. Hogue. CRS-16 withdrawn, were later resubmitted (usually at the following session), and the Senate proceeded to a final vote on each of the resubmitted nominations. The other four withdrawn nominations were never resubmitted. Overall, as a result, only two of these 12 nominations continued to be available to the Senate and yet never received floor action. These included one of the late nominations and the one that became moot. These circumstances also indicate that the simple absence of floor consideration cannot be taken to imply that the Senate found the nomination less than acceptable. Of the five nominations in this group that were later resubmitted, the Senate confirmed four, rejecting only one. In addition, at least some of the withdrawals evidently occurred for reasons unrelated to Senate sentiment about the nomination. Paterson (1793), for example, who was among those later resubmitted and confirmed, was initially withdrawn only because he was constitutionally ineligible to sit on the Court during that session, the salary of the Justices having been increased during the Senate term to which he had been elected. Among nominations not resubmitted, Thornberry’s (1968) was withdrawn simply because his vacancy was eliminated by the failure of a concurrent nomination of a sitting Justice to be Chief Justice. The late nomination of Micou (1853) presents a more ambiguous case, but the immediate reason it was not resubmitted was that the lame duck President who originally submitted it had left office. The nomination of Roberts (2005a) was withdrawn because the President decided to nominate him for the post of Chief Justice, which became available after the original Roberts nomination had been submitted.31 On other nominations in this group, nevertheless, circumstances suggest that the Senate’s inaction did reflect the presence of opposition. Most clearly, the congressional action to abolish Stanbery’s vacancy (1866) appears to reveal emphatic objection to his nomination.32 Also, after Hornblower’s initial nomination received no action late in a session (1893a), the Senate rejected his renomination outright. In the case of Spencer, the Senate had already rejected the nomination once before the President later resubmitted and withdrew it on the same day (1844).33 There also appears reason to conclude that the withdrawals of both Cushing (1874) and Miers (2005) represent responses to expressed opposition.34 31 Jacobstein and Mersky, The Rejected, Sketches of the 26 Men Nominated for the Supreme Court but Not Confirmed by the Senate, p. 59. 32 Ibid., pp. 70-72. In the following session, nevertheless, Stanbery was nominated and confirmed as Attorney General. 33 34 Ibid., pp. 37-38. Ibid, pp. 87-93; Robin Toner, David D. Kirkpatrick and Anne E. Kornblut, “Steady Erosion in Support Undercut Nomination,” New York Times, Oct. 28, 2005, p. 16. CRS-17 Table 1. Supreme Court Nominations Receiving No Final Floor Action Last Procedural Floor Action Nomination Withdrawn?a Later Action on Individual Total Renominated?a Confirmed?b 12 No Floor Action Nonec Harriet Miers, 2005 John Roberts, 2005 Homer Thornberry, 1968 John M. Harlan, 1954 Pierce Butler, 1922a William Hornblower, 1893a Stanley Matthews, 1881a Caleb Cushing, 1874 Henry Stanbery, 1866 William Micou, 1853 John C. Spencer, 1844b William Paterson, 1793a yes yes yes yes yes yes yes yes yes yes yes rejected yes yes yes yes yes yes 13 Floor Action Without Vote on Confirmation Tabled Postponedd Edward A. Bradford, 1852 Edward King, 1845 Reuben H. Walworth, 1845 Reuben H. Walworth, 1844a Edward King, 1844 yes yes yes George E. Badger, 1853 Roger B. Taney, 1835a John J. Crittenden, 1828 Motion to consider defeated Jeremiah S. Black, 1861 Motion to consider met objection Reuben H. Walworth, 1844b Cloture failed on motion to consider Abe Fortas, 1968 yes Recommitted George H. Williams, 1874 yes No procedurese John M. Read, 1845 Total yes yes no no yes yes yes no 25 Notes: a. Blanks indicate that the action in question did not occur. b. “No” indicates that no final vote occurred on the subsequent nomination. Blanks appear when there was no subsequent nomination. c. For details on the reasons for withdrawal, see accompanying text. d. For details on the means by which these postponements occurred, see section on “Procedural Complexity.” e. Nomination was taken up near the end of the session, and the Senate adjourned sine die before completing consideration. CRS-18 Floor Action Without Final Vote. The 13 nominations that received floor action, but no final vote, reflect a different distribution of circumstances. Consideration of one of the 13 (Read, 1845) appears simply to have begun too late in a session to be completed, but the Senate appears to have laid aside each of the other 12 as a consequence of unfavorable action on some procedural motion. The specific actions taken in these cases, noted in Table 1 and described in more detail in the section on “Procedural Complexity,” were seldom ones that conclusively precluded further consideration. Instead, the Senate seems simply to have taken these actions as demonstrating a lack of sufficient support for confirmation. The President, correspondingly, subsequently withdrew six of these nominations. The frequency of these proceedings may indicate the extent to which the Senate, in the presence of opposition to a Supreme Court nomination, has been willing to give it consideration and yet omit to proceed to a vote. In recent times, the Senate has not often resorted to this form of proceeding. Nine of the 13 instances occurred in the decade from 1844 to 1853, and only two took place after the Civil War. The earliest instance occurred in 1828, when the Senate set aside the Crittenden nomination until after a reorganization of the Judiciary (by which point the nominating President would have left office).35 The most recent case was the Fortas nomination for Chief Justice, which President Johnson withdrew in 1968 after supporters mustered only 45 votes for cloture on the motion to proceed to consider the nomination.36 Dispositions and the Extent of Opposition. The left-hand columns of Table 2 summarize the preceding discussion of how the Senate has disposed of Supreme Court nominations, showing that the Senate has confirmed more than threequarters of all nominations submitted to it, and more than nine of every ten on which it voted. Indeed, as the middle columns show, the Senate has confirmed almost half of all Supreme Court nominations ever submitted to it without even requiring a roll call vote. Roll calls, on the other hand, have by no means been uncommon, occurring on three of every seven final votes, including every one since 1967. Neither the type nor the outcome of a vote, in itself, can be taken as affording a clear indication of the extent of the opposition a nomination may have generated. In particular, although a voice vote may reasonably be viewed as failing to indicate the presence of opposition, it could be rash to presume that it demonstrates an absence of opposition.37 Conversely, although a roll call vote may reflect the presence of extensive opposition, it does not always indicate the occurrence of that level of opposition. In the years since 1967, eight of the 18 roll calls have registered fewer than four “no” votes. More broadly, as Table 2 shows, almost half of all roll 35 Jacobstein and Mersky, The Rejected, Sketches of the 26 Men Nominated for the Supreme Court but Not Confirmed by the Senate, pp. 21-23. 36 Under the rule then in effect, two-thirds of Senators present and voting were needed to invoke cloture. On the vote in question, the required number would have been 59. 37 A salient example is provided by the confirmation of Goldberg in 1962, when one Senator explicitly asked to be recorded in opposition even though the Senate was acting by voice vote. CRS-19 call votes on Supreme Court nominations throughout history have involved fewer than 10 votes in opposition. Taking the appearance of at least 10 “nay” votes as a rough threshold for the presence of significant opposition permits a more meaningful sense of the significance of the data on the disposition of these nominations.38 By this standard, 22 of the 46 roll calls by which nominations were confirmed indicated “significant” opposition. Combining these 22 nominations with the 11 that were rejected, it may be said that just 33 votes on confirmation indicated the presence of “significant” opposition. Nominations that received no final vote may also be incorporated into this approach so as to arrive at a unified account of the meaning of various outcomes of action on these nominations. The earlier discussion of nominations that received floor action but no final vote suggested that this outcome typically reflected the presence of opposition. The discussion of nominations that received no floor action, on the other hand, concluded that this outcome has come about, on different occasions, both when significant opposition was present and not. Accordingly, this disposition cannot, in itself, be taken as an indicator of either circumstance. The results of these considerations are summarized in the right-hand columns of Table 2. Its figures include the 13 nominations on which floor action failed to result in a final vote as cases that indicate “significant” opposition, but treat the 12 that never reached the floor as instances from which no definite conclusion about opposition can be drawn. With these inclusions, the classification yields a total of 46 nominations with dispositions that imply “significant” opposition.39 From this perspective, accordingly, it can be held that more than two-thirds of the 145 Supreme Court nominations reaching the Senate floor have met no more than scattered opposition. 38 In early days, when the Senate was much smaller, fewer than 10 negative votes might still have represented a significant level of opposition. In practice, however, the rough standard proposed may reasonably be applied to all periods, because until 1870, all nominations against which fewer than 14 Senators voted were opposed by fewer than five. 39 Alternatively, the 12 nominations without floor action might be incorporated into the classification on the basis of the individual circumstances identified in their earlier discussion. The observations offered there suggest that five of the 12 might be taken as representing responses to opposition. The addition of these five would result in counting 51 nominations with “significant” opposition out of a total of 157, or 32%, a result negligibly different from that displayed for only those nominations that reached the floor. CRS-20 Table 2. Dispositions of Supreme Court Nominations, Types of Vote, and Extent of Opposition Indicated Outcome Extent of Opposition Indicated by Form of Disposition (see text) Type of Vote Form of Disposition Confirmed Rejected No Final Action Voicea Roll Call None Scattered “Significant” or None Confirmed, voice votea 73 Confirmed, roll call vote, fewer than 10 opposed 25 25 Confirmed, roll call vote, 10 or more opposed 23 23 23 11 11 Rejected (all by roll call vote) 73 11 73 25 Floor action without final vote 13 13 No floor action 12 12 Total Indeterminate 13 12 121 11 25 73 59 25 98 47 12 Percent of 157 total nominations 77 7 16 46 38 16 62 30 8 Percent of 132 nominations reaching a vote 92 8 55 45 68 32 Percent of 145 nominations receiving floor action Note: a. Includes unanimous consent. CRS-21 Length of Floor Action Days of Floor Action. Another salient characteristic in terms of which Supreme Court nominations vary is the length of consideration they receive on the floor. As with forms of disposition, of course, length of consideration can be established only for those nominations on which consideration occurs. Accordingly, the data discussed in this section again reflect only the 145 nominations that reached the floor. The length of consideration of Supreme Court nominations is identified in Table 3 in terms of the number of calendar days on which action took place on the nomination on the Senate floor.40 In general, each day was counted on which any formal procedural action in relation to a nomination occurred, even if the nomination itself was not formally under consideration on that day. For example, a day was counted on which a motion to proceed to consider a nomination was offered or debated, even if the motion was defeated, or was not adopted until the following day. Otherwise, for example, all Senate floor action on the Fortas nomination for Chief Justice (1968), which was entirely about whether the Senate would agree to the motion to proceed to consider the nomination, would not be counted. On the other hand, days were not counted on which Senators made individual speeches in relation to a nomination, but the Senate did not formally have it under consideration on the floor, as happened extensively, for example, on the Rehnquist nomination for Associate Justice (1971). The data presented, accordingly, are more precisely described as presenting the length of “floor action” than of formal “consideration” or of “debate.” In compiling these data, however, a few actions were treated as exceptions to the standard just identified. Especially during the first half of the 19th century, for example, the Senate commonly referred newly received nominations to committee through action taken on the floor. In more recent times, the Senate has sometimes reached a unanimous consent agreement setting terms for consideration of a nomination in advance of any actual consideration. When either such action was the only one taken in relation to a nomination on a given day, the day was not counted as a day of consideration. A contrary practice would tend to overstate the length of consideration of these nominations relative to others to which the Senate actually devoted similar time, but on which the corresponding actions occurred on the same day as further steps, rather than on a preceding day. 40 A more detailed measure, such as the number of hours consumed, would have been impracticable to compile, especially for the years before 1929, when the Senate typically did all executive business in closed session. Number of days, however, could be readily and definitively ascertained from the Executive Journal. CRS-22 Table 3. Length of Floor Action on Supreme Court Nominations Days Number of Nominations 1 100 2 21 3 10 4 5 5 3 Nominations Disposition (if not confirmed) [not listed] John G. Roberts, 2005 Charles Evans Hughes, 1930 Harlan F. Stone, 1925 Joseph P. Bradley, 1870 Alexander Wolcott, 1811 yes yes rejected Clarence Thomas, 1991 William H. Rehnquist, 1986 William H. Rehnquist, 1971 yes 6 2 Abe Fortas, 1968 George E. Badger, 1853 unfinished unfinished 7 1 Clement Haynsworth Jr., 1970 rejected 8 1 John J. Parker, 1930 rejected 9 1 John J. Crittenden, 1828 unfinished 10-13 0 14 1 G. Harrold Carswell, 1970 rejected Total For Chief Justice? yes 145 Extended Consideration and Opposition. Table 3 shows that, historically, the Senate has found a single day sufficient for floor action on nearly two-thirds of all the nominations submitted (although this form of action has ceased to be the norm in the years since 1967). For nominations receiving longer consideration, numbers decline quickly as length of consideration rises, so that less than 10% of those reaching the floor remained there for more than three days. The more extended consideration given to this relative handful of nominations may rest on a variety of causes. Assessment of their nature is likely to begin from the well understood circumstance that opponents of a matter in the Senate may engage in extended debate as a means of delaying or blocking final action.41 Accordingly, it might be natural to take the length of floor consideration as an indicator of the intensity of opposition to a nomination, and specifically of the determination with which opponents attempted to delay its confirmation. Such a supposition might be 41 These possibilities are discussed in more detail in CRS Report RL30360, Filibusters and Cloture in the Senate, by Richard S. Beth and Stanley Bach. CRS-23 supported by the observation that none of the six nominations receiving more than five days’ consideration was confirmed. Other considerations, however, also may be pertinent. It may be significant, for example, that four of the 14 nominations considered for more than three days were for Chief Justice; it may plausibly be supposed that the Senate has generally tended to find these nominations as necessitating more sustained consideration. More broadly, the Senate may well have been likely to devote more time to nominations that were considered particularly important, for example, to the balance or future course of the Court. In addition, the data in Table 3 also suggest a trend toward longer consideration in more recent times. Although extended consideration was not unheard of even in very early years (e.g., Wolcott, 1811, and Crittenden, 1828), six of the nine nominations receiving more than four days’ consideration occurred in 1968 or later, beginning with the Fortas nomination for Chief Justice. This trend may be associated as much with generally observable developments in the way the Senate handles its business as with any specific increase in controversy over nominations to the Court. These considerations suggest that the occurrence of extended consideration on Supreme Court nominations cannot, in itself, be taken as a reliable indicator of strong opposition. Not only may extended consideration occur for other reasons, but it is also not necessarily the case that even determined opponents have always expressed their position by attempting to protract the proceedings. On the other hand, lengthy consideration may reasonably be viewed as a sign of the possibility that opposition may have been present. Correspondingly, the completion of consideration on a single day cannot be taken to demonstrate an absence of opposition, although it may be appropriate to view it, more cautiously, as failing to afford evidence that significant opposition was present. Procedural Complexity Optional Procedural Actions. Senate floor proceedings on Supreme Court nominations, like those on other matters, are distinguishable not only in terms of the means of disposition and the length of time consumed, but also by the procedural actions that may occur in the course of consideration. As with these other characteristics of floor action, procedural actions can be identified only for the 145 nominations that reached the floor. Table 4 lists various forms of procedural action that have occurred in the course of Senate floor consideration on these nominations and how often each has appeared. It shows that no single procedure was used on more than about 14% of the Supreme Court nominations reaching the floor, but also that a half-dozen different procedures were used at least half that often. No single procedure either stands out as especially characteristic of proceedings on these nominations or clearly identifies any distinctive subgroup among them. Instead, floor proceedings on Supreme Court nominations are more readily categorized, in this respect, simply in terms of whether or not any procedural actions at all occurred beyond those required in the course of consideration itself. Throughout history, floor action on Supreme Court nominations has most often remained procedurally simple in this sense. Proceedings on 78 of the 145 CRS-24 nominations were procedurally simple in the sense of involving no optional procedural actions. The remaining 67 nominations (46% of the total) may be identified, in this minimal sense, as “procedurally complex.” Procedurally complex nominations might be further distinguished in several ways, such as by the number of procedural actions that occurred in the course of floor action or the extent to which procedural actions were applied to other procedural actions (e.g., a motion to table a motion to postpone). A more readily applicable criterion for this purpose, however, is whether any of the procedural actions taken resulted in a roll call vote. Again as Table 4 shows, procedural roll calls occurred on 25 of the 67 nominations on which any optional procedures were used (17% of the total 145 nominations on which floor action occurred). This further distinction affords a rough indicator of the intensity with which procedural action was pursued. CRS-25 Table 4. Procedural Actions Occurring During Floor Action on Supreme Court Nominations Number of Nominations on Which the Procedural Action — Procedural Action Occurred Received a Roll Call Vote b Potentially Involved Delay b Intervention in calling up 23a Motion to postpone 19 Consent agreement for final vote 17c Motion to proceed to consider 13d 3 13 2 Motion to recommit (or commit) 14 8 14 1 Motion to lay on the table 13 4 13 5 8 b b 13g Had Effect of Terminating Consideration 19 6h 11 3 b b Live quorum call 11 Motion to adjourn or recess 7e 6 7 0 Motion to reconsider 3 1 3 0 Motion for cloture 3 3 3 1 67f 25 55 12 Total number of nominations Notes: a. Includes only the following: (1) objections to a request, made either by motion or by unanimous consent, to proceed to consider a nomination on the same day reported; (2) passing a nomination over on calendar call; and (3) unanimous consent arrangements, (including those made by special order) providing for consideration at a future time. b. Not applicable (see text). c. Includes only unanimous consent agreements that assured the occurrence of a final vote, either by limiting debate time, setting a time certain for a final vote, or otherwise. d. Includes special orders for consideration that were established by vote, excludes motions that could have been defeated by objection, which are included under (a)(1). e. Includes only those motions to adjourn or recess that could have delayed or protracted consideration more than would normally have occurred. f. For the first two data columns, the total displayed is less than the sum of the cell entries, because some nominations involved more than one procedural action. g. Includes only the following: (1) objections to a request, made either by motion to unanimous consent, to proceed to consider a nomination on the same day reported; (2) passing a nomination over on calendar call; and (3) unanimous consent arrangements before 1967 (including those made by special order) for consideration at a future time. h. Includes only consent agreements that assured the occurrence of a final vote and were not reached until after the first day of consideration. The principal effect of some kinds of optional procedure used in relation to Supreme Court nominations would have been to expedite rather than delay consideration. These included chiefly (1) actions, taken either by motion or unanimous consent, to proceed to consider a nomination on the same day reported; CRS-26 and (2) consent agreements assuring a final vote (either by limiting debate or setting a time certain) that were reached before consideration began or on its first day. In order to examine the potential use of optional procedures as means of pursuing opposition to Supreme Court nominations, it is appropriate to exclude these forms of action from consideration. The second column of Table 4 presents a count of optional procedures that could potentially have been used for purposes of delay or opposition. Using this criterion, 90 of the 145 of all nominations reaching the floor (62%) may be said to have been subject to no optional procedures that could have had the effect of delaying or terminating consideration. This percentage is comparable to the ones, reported above, for nominations that faced no significant opposition and for those considered for only a single day. As with those other characteristics of consideration, it would not be appropriate to take the absence of procedural complexity as demonstrating the absence of opposition. It could reasonably be said, nevertheless, that when nominations involve no procedural complexity, no positive inference may be drawn from the procedural features of consideration that opposition or contention was present. Conversely, the occurrence of procedural complexity, or even of procedural roll calls, cannot be regarded as sufficient in itself to infer the presence of opposition or contention, but may reasonably be taken as a reason to think that such opposition may have been present. The occurrence of optional procedural actions is also related to the occasions, previously detailed in Table 1, on which nominations reached the floor but failed to reach a final vote on confirmation. In 12 of the 13 cases of incomplete consideration listed in Table 1, some optional procedural action was the last one that occurred, and had the effect of terminating consideration. In order to indicate some potential effects of optional procedural actions, the last column of Table 4 reproduces this information in summary form. These instances show that the effect of a procedural action in any individual case depends only in part on the prescribed effect of the action. It is also affected, in some cases, by the procedural context in which the action is undertaken, and in particular on whether it is integral to or divergent from the routine practice of the time. Procedural context changes from case to case, normal practice also has changed over the course of Senate history, and in some cases, the prescribed effect of procedural actions has changed as well. Accordingly, the potential significance of optional procedural actions may be clarified by reference to some of the points initially developed in the section on “Historical Trends.” For this purpose, it is useful to look separately at actions that affect how the Senate has taken up nominations and those that can occur in the course of consideration. Calling Up Nominations. The Senate has always taken up nominations under procedures governing action in executive session, separate from those regulating legislative action (although occasionally, by unanimous consent, it has considered a nomination “as in” executive session without actually going into an executive session). It appears that for most of its history, from 1789 through 1967, the normal practice of the Senate was to take up each nomination automatically when it was reached in the consideration of executive business. In order to be eligible for consideration under this procedure, a nomination apparently had to have become CRS-27 available for floor action at least one day previously. Initially, nominations became available when received from the President; after 1835, when nominations to the Supreme Court began routinely to be referred to committee, they normally became available for consideration when reported. After about 1922, it appears, this proceeding was formalized as a call of the calendar of nominations. Sometimes, however, by unanimous consent, the Senate has taken up a nomination on the same day reported or submitted. As previously noted, in fact, this proceeding was used for nearly half of all nominations reaching the floor (18 of 41) from 1868 to 1922. No departure from these routine forms of proceeding occurred before 1835, when the nominations of Taney and Barbour, though eligible for the normal procedures, were called up instead by a roll call vote on a motion to proceed to consider. Complications of a similar kind were faced by Badger in 1853, when the Senate was unable to reach a vote on a motion to proceed, and by Black in 1861, when the Senate defeated a motion to proceed on a roll call vote. During roughly this same period, however (1844-1874), motions to proceed to consider were also offered on seven other nominations that were eligible for normal consideration, but the Senate adopted these motions in short order and by voice vote. In the cases of both Badger and Black, the Senate also attempted to bring the nomination to the floor through a special order providing that it proceed to consideration on a specified later day. The Senate ultimately adopted a special order of this kind for Badger by voice vote, but never accepted one for Black. On five Supreme Court nominations thereafter, through 1930, the Senate used unanimous consent to establish special orders of this kind. These special orders represent forerunners of the contemporary practice of reaching agreements in advance, by unanimous consent, to take a matter up. In these earlier times, however, special orders seem to have been used for these nominations only in unusual circumstances, to overcome difficulties in bringing a matter to the floor, and their effect was to put off its consideration past the point at which it would normally have come up. Another form of action that indicated an attempt to delay consideration appeared on four scattered occasions before 1967 when an attempt to call a nomination up on the same day it was reported or submitted was prevented by objection. A more definite, though still only temporary, form of delay was imposed on five nominations during this period (all after 1880), each of which was passed over for consideration at least once, upon demand of a Senator, when reached in its normal order. From 1968 on, the Call of the Calendar of nominations fell into disuse for the consideration of Supreme Court nominations, and a different set of practices for initiating floor action on these nominations has become standard. All but one of the 18 nominations that have reached the floor since that time did so pursuant to a request for unanimous consent that the Senate proceed to consider it. In nine cases, this consent agreement provided for immediate consideration; on the remaining eight nominations it provided, like the earlier special orders, for consideration to begin at some future date. Some of these consent agreements provided for the Senate not only to take up the nomination, but to go into executive session for the purpose, and some also limited debate or set a time certain for a final vote. Whether or not they included CRS-28 these additional provisions, however, these agreements represent a routine proceeding for taking up the nomination and fail to suggest any potential difficulties in bringing it to the floor. The only nomination in this recent period to experience difficulty at the point of calling up has been that of Fortas in 1968, on which a motion to proceed to consider was found necessary and could not be brought to a vote. Proceedings in the Course of Floor Action. Senate rules do not establish separate procedures for the consideration of nominations and of legislation to the same extent that they do for calling up business of the two kinds. The most evident differences between the two forms of proceedings may be that nominations, of course, cannot be amended. Otherwise, most of the same procedural mechanisms used for legislative business are also available on nominations. The use of optional procedures of any kind during consideration was initially rare, occurring on only five of the 31 nominations reaching the floor before 1835. Motions to postpone temporarily, however, were used as early as 1795, motions to commit with instructions by 1811, and motions to table by 1826. Sometimes, again as already noted, a motion to postpone or table was offered at the point when the Senate was just proceeding to consider a nomination, so that they might in these instances have been treated as part of the proceedings for calling up nominations. In order to treat each motion in a consistent way, however, the present discussion views all of them as having been offered in the course of consideration. Occasionally, in addition, action with effect similar to one of these motions also was proposed by resolution. For example, the Senate several times entertained a resolution that it postpone or table a nomination until enactment of legislation reorganizing the circuit courts (which could have the effect of eliminating the nominee’s vacancy), or one directing a committee to investigate a nominee further without formally recommitting the nomination. Table 4 includes these proceedings in the count of corresponding motions. In most instances during this period, when motions to postpone, commit, or table were offered, the Senate adopted them by voice vote. At that time, adoption of a motion to table evidently did not have the effect of a final negative disposition, as it does today, but only of putting off action for the time being. The normal effect of adopting any of these motions, accordingly, was only to delay further action by taking the nomination off the floor temporarily. The only exception to this pattern occurred in 1828, when adoption (by roll call) of a resolution postponing the Crittenden nomination until after a circuit court reorganization effectively terminated consideration of the nomination. During the decade between 1835 and 1845, by contrast with earlier years, only five of the 16 Supreme Court nominations that reached the floor were considered without the intervention of optional procedures. Also, although the procedures used continued to include only motions to postpone, commit, and table, the consequences of their use became more varied. Some of these motions continued to be adopted by voice vote, but others were either adopted or rejected on roll call votes. Adoption by voice vote may most likely suggest that supporters of the nomination may have been using the motion either to gain time or for routine purposes of agenda management; rejection by roll call suggests that the motions may have been offered by opponents CRS-29 seeking to bring about delays in consideration. Either of these results, however, normally permitted consideration to continue. Especially when one of these motions was adopted by roll call, on the other hand, it often had the effect of terminating consideration before an up-or-down vote could occur. In 1835, the Senate tabled a resolution to postpone the Taney nomination until a circuit court reorganization, then adopted a motion to postpone it indefinitely. In 1844, the Senate tabled President Tyler’s nominations of Walworth and King, and in the following year it did the same to their renominations, and this time it reached this result by a simple voice vote. The motion to postpone indefinitely has the explicit purpose of terminating consideration, but, under the practice of the time, a similar consequence followed from adopting the motions to table only because the Senate did not choose to resume their consideration. It appears highly likely that in taking these actions, the Senate understood that leaving consideration unfinished was their proponents’ intent and would be their practical effect. In the decades after 1845, political circumstances varied widely, but the overall incidence of procedural complexity on Supreme Court nominations declined, although not to the earliest levels. A solid majority of the nominations reaching the floor between 1845 and 1890 (20 of 31) experienced no optional procedural action at all after being called up. (This figure, however, includes the five nominations confirmed during the Civil War, when any substantial opposition to the administration was absent.) After 1845, the three motions already mentioned continued to be used on Supreme Court nominations, except that, because initial committee referral had become routine, the motion to recommit largely replaced the motion to commit. These three motions also continued to have a similar range of consequences. In 1870, however, a resolution was offered to lay two Supreme Court nominations on the table until Congress completed a circuit court reorganization, and this proved to be the last occasion on which an attempt was made in the Senate to table such a nomination. The Senate, accordingly, has never attempted to use this motion on Supreme Court nominations when it would have the effect of a final negative disposition. The motions to postpone and recommit, on the other hand, continued to be used in ways similar to those appearing previously through 1890. Beginning in 1853, as well, the Senate also started to use motions to adjourn with the effect or apparent intent of putting off consideration of a Supreme Court nomination.42 On the Badger nomination in 1853, the motion was adopted by a roll call vote. Thereafter, such a motion was offered on six other nominations through 1889. On one occasion it was adopted by voice vote, but otherwise a roll call always rejected it. After 1890, this form of optional procedure fell out of use, except for one occasion (on Hughes for Chief Justice in 1930) when a roll call rejected a motion to recess. 42 Routine adjournments and recesses by voice vote or unanimous consent, most of which occurred outside executive session in any case, were not taken into account for this purpose. CRS-30 For a brief period beginning in 1870, motions to reconsider a vote to confirm also appeared. The first such motion (on Strong in 1870) was withdrawn after three days’ debate and the failure of a motion to postpone it. The second (on Harlan in 1877) never reached a vote. The last (on Woods in 1880) was tabled by roll call after a quorum failed on an initial roll call on the motion itself. After this third unsuccessful attempt, the Senate abandoned use of this motion as well. Neither of the motions newly coming into use in this period was ever used with the effect of terminating consideration. The three motions that had continued to appear since earlier times, on the other hand, still occasionally were used with this effect. The Bradford nomination was tabled in 1852 and received no further action, and the Badger nomination in the following year was postponed until a date after Congress was to adjourn. In 1873, the Williams nomination became the only one on which a recommittal ever terminated consideration. On only one subsequent occasion (Fortas, 1968; see below) has the Senate ever again resorted to optional procedural actions to terminate action on a Supreme Court nomination short of an up-or-down vote. With this one exception, accordingly, such terminations came about only in the half century from 1828 through 1873. This period included not only the nine nominations on which floor action was terminated before a vote through optional procedures during consideration, but also the two on which this effect followed from Senate action on a motion to proceed to consider.43 As already suggested in the case of the tabled Tyler nominations, it appears likely that in these instances, even when the procedures used did not, in themselves, definitively terminate consideration, the Senate understood in using them that this would be their practical effect. After 1890, the frequency of optional procedural action during consideration declined further; from then through 1967, such action appeared on just 14 of the 50 nominations that reached the floor. Additional shifts also occurred in the forms of procedural action used. These shifts amounted principally to a substantial decline in the use of motions that required a vote of the Senate, and an increasing resort instead to live quorum calls, which can be demanded by a single Senator, and unanimous consent agreements, which require the absence of objection by any single Senator. Although the votable motions could potentially be used in ways that would have the effect of terminating consideration, this result was not likely from either of the procedures newly coming into use in this context. Early in this period, the Senate continued to adopt motions to recommit and to postpone by voice vote, and to reject them by roll call. After 1930, however, these motions became more unusual, and the motion to adjourn in this context ceased to be used at all. A motion to recommit or postpone has been offered on just four nominations since 1930, most recently in 1971 (on Rehnquist for Associate Justice), and all have been rejected on roll calls. The motions to reconsider and to adjourn, as mentioned earlier, had already become disused on these matters, the former 43 It also included the single case in which consideration lapsed without a vote in the absence of any procedural action (Read, 1845; see Table 1). CRS-31 perhaps because the Senate now tables the motion routinely, immediately after every successful action. Beginning with the Stone nomination for Associate Justice in 1925, live quorum calls came to be used with some regularity during consideration (although a single such call had already occurred once previously, on the Woods nomination of 1880). At least 10 such calls each were demanded on the Hughes and Parker nominations in 1930, although only once (in the consideration of Parker) did such a call ever result in the actual failure of a quorum. Thereafter, live quorum calls occurred on seven more nominations, most recently in 1971, but no more than three times on any single nomination. This procedure can be used to incur a certain amount of delay even if it succeeds in producing a quorum. The unanimous consent agreements that are to be taken into account in this connection include only those that assured the ability of the Senate to reach a final vote on a nomination, usually by setting either a time certain for the vote or an overall limit on the time for debate.44 Such an agreement was first reached for Brewer (1889), but appeared on just three other nominations between then and 1967. Three of these four agreements were reached either in advance of consideration or on its first day, and accordingly appear likely to represent consensual arrangements to facilitate consideration. The fourth agreement, by contrast (on Parker in 1930), was not reached until the seventh day of consideration, and so appears more likely to represent a response to attempts to delay or extend consideration. From 1968 onward, however, consent agreements became the standard means of regulating consideration of Supreme Court nominations, as they increasingly did for other major matters. Such agreements appeared on 14 of the 18 nominations to reach the floor after that date, and five of the 14 were established only after the first day of consideration. Many of these agreements, on the other hand, may have represented collegial arrangements rather than attempts to overcome any difficulties in consideration, inasmuch as, on 10 of the 14 nominations, the consent agreement was the only optional procedural action taken. Overall, indeed, consideration of 14 of the 18 nominations reaching the floor since 1968 involved no optional procedural actions other than the consent agreement. On the remaining four of these 18 recent nominations, the only optional procedures used were to postpone (once), to recommit (once), and for cloture. The motion for cloture, which allows a super-majority to limit the time for consideration of a matter, started to be used on Supreme Court nominations at the same time as consent agreements became routine. As explained in the section on “Historical Trends,” this motion did not become available for use on nominations until 1949. It was not used on any nomination, however, until 1968, when the Senate rejected cloture on a motion to proceed to consider the Fortas nomination for Chief Justice (and thereafter abandoned action on the nomination). This action represented the 44 Consent agreements providing that the Senate proceed to consider a nomination at a subsequent point were addressed in the previous section, on “Calling Up Nominations.” Agreements that involved both features are counted in both groups and considered separately under both heads. CRS-32 only time since 1873 when the Senate terminated floor action on a Supreme Court nomination short of an up-or-down vote. Since then, cloture has been moved only on the two Rehnquist nominations, as shown in the case study presented above. On the 1971 nomination for Associate Justice the motion failed, but a consent agreement was subsequently reached that permitted the Senate to reach a vote on confirmation. On the 1986 nomination for Chief Justice, the Senate invoked cloture, the only time it has done so on a Supreme Court nomination. Procedural Complexity and Opposition. As was the case for forms of disposition and length of consideration, the significance of procedural complexity is more difficult to ascertain than is its occurrence. The preceding discussion shows that, on some occasions, optional procedures may have been used routinely, with the apparent purpose of managing the flow of business, and with a potential effect only of expediting action. On other occasions, optional procedures may have been used as means of delaying consideration or even placing obstacles in the way of a final disposition. In cases when the occurrence of optional procedural action resulted in consideration being terminated before a final vote, for example, it might reasonably be conjectured that the procedural action in question could have been undertaken with the intent of bringing about this result. It is equally reasonable to suppose that similar actions, undertaken on other nominations, may at least sometimes have reflected similar intentions, even if the results did not successfully fulfill those intentions. No definitive conclusions, of course, might be drawn about the purpose of optional procedural actions in any specific case in the absence of information about the intentions of Senators undertaking them. Even to offer inferences about specific occasions on which such intentions were present would require examination of the political and historical circumstances surrounding each nomination, a task beyond both the scope and the purpose of this report. The preceding discussion, nevertheless, permits some assessment about which optional procedures may have afforded the possibility of delaying consideration or forestalling a final vote, and, accordingly, which of them might, in principle, have been used in some instances for such a purpose. CRS-33 Appendix I. Selected Characteristics of Floor Proceedings on Supreme Court Nominations, 1789-2005 Year 1789 1789 1789 1789 1789 1789 1790 1791 1793a 1793b 1795 1796 1796 1796 1798 1799 1800 1801 1804 1806 1807 1811 1811 1811 1811 1811 1823 1826 1828 1829 1830 1835 1835a 1835b 1835 1837 1837 1837 1841 1844a 1844a 1844 1844b 1844b 1845 1845 1845 1845 1845 Nominee John Jay* John Rutledge William Cushing Robert H. Harrison James Wilson John Blair James Iredell Thomas Johnson William Paterson William Paterson John Rutledge* William Cushing* Samuel Chase Oliver Ellsworth* Bushrod Washington Alfred Moore John Jay* John Marshall* William Johnson H. Brockholst Livingston Thomas Todd Levi Lincoln Alexander Wolcott John Quincy Adams Joseph Story Gabriel Duvall Smith Thompson Robert Trimble John J. Crittenden John McLean Henry Baldwin James M. Wayne Roger B. Taney Roger B. Taney* Philip P. Barbour William Smith John Catron John McKinley Peter V. Daniel John C. Spencer Reuben H. Walworth Edward King John C. Spencer Reuben H. Walworth Reuben H. Walworth Edward King Samuel Nelson John M. Read George W. Woodward Final vote Voice Voice Voice Voice Voice Voice Voice Voice Extent of opposition Floor days 1 1 1 1 1 1 1 1 Optional procedural actiona n n n n n n n n 1 2 1 1 1 1 3 1 1 1 1 1 1 4 1 1 1 1 2 9 1 1 1 3 3 1 2 2 1 1 1 1 1 n op n n n n op n n n n n n op n n n n opr opr n n n opr opr opr op op n opr n opr opr 1 1 1 1 1 2 op op op op op opr Notes Declined to serve No floor action; withdrawn Voice 10-14 Voice Voice 21-1 Voice Voice Voice Voice Voice Voice Voice Voice 9-24 Voice Voice Voice Voice 27-5 Rejected Rejected Unfinished Voice 41-2 Voice 29-15 30-11 23-18 28-15 Voice 22-5 21-26 Unfinished Opposition Opposition Opposition Opposition Rejected Unfinished Unfinished Declined to serve Declined to serve Declined to serve Declined to serve Declined to serve Withdrawn No floor action; withdrawn Unfinished Unfinished Unfinished Voice 20-29 Unfinished Rejected Withdrawn Withdrawn CRS-34 Year 1845 1846 1851 1852 1853 1853 1853 1857 1861 1862 1862 1862 1863 1864 1866 1869 1869 1870 1870 1872 1874 1874 1874 1877 1880 1881a 1881b 1881 1882 1882 1888 1888 1889 1890 1892 1893 1893a 1893b 1894 1894 1895 1898 1902 1903 1906 1909 1910 1910 1910 1910 1912 1914 Nominee Levi Woodbury Robert C. Grier Benjamin R. Curtis Edward A. Bradford George E. Badger William C. Micou John A. Campbell Nathan Clifford Jeremiah S. Black Noah H. Swayne Samuel F. Miller David Davis Stephen J. Field Salmon P. Chase* Henry Stanbery Ebenezer R. Hoar Edwin M. Stanton William Strong Joseph P. Bradley Ward Hunt George H. Williams* Caleb Cushing* Morrison R. Waite* John M. Harlan William B. Woods Stanley Matthews Stanley Matthews Horace Gray Roscoe Conkling Samuel Blatchford Lucius Q.C. Lamar Melville W. Fuller* David J. Brewer Henry B. Brown George Shiras, Jr. Howell E. Jackson William B. Hornblower William B. Hornblower Wheeler H. Peckham Edward D. White Rufus W. Peckham Joseph McKenna Oliver W. Holmes William R. Day William H. Moody Horace Lurton Charles E. Hughes Edward D. White* Willis Van Devanter Joseph R. Lamar Mahlon Pitney James C. McReynolds Final vote Voice Voice Voice Extent of opposition Unfinished Unfinished Floor days 1 1 1 1 6 Optional procedural actiona n n n op opr 1 2 3 1 1 1 1 1 n op opr n n n n n 2 1 3 4 1 2 opr n opr opr n op 1 1 2 op op opr 3 1 1 1 1 1 2 1 1 2 op n n n n n opr n n op 2 3 1 1 2 1 1 1 1 1 1 1 1 3 2 op op n n op n n n n n n n n n n Notes No floor action Voice 26-23 Opposition Unfinished 38-1 Voice Voice Voice Voice No floor action 24-33 46-11 Voice 46-9 Voice Opposition Opposition Unfinished 63-0 Voice 39-8 Did not serve Withdrawn No floor action; withdrawn No floor action 24-23 51-5 39-12 Voice 32-28 41-20 53-11 Voice Voice Voice Opposition Opposition Opposition Opposition Opposition Declined to serve No floor action 24-30 32-41 Voice Voice Voice Voice Voice Voice Voice Voice UC Voice Voice 50-26 44-6 Rejected Rejected Opposition CRS-35 Year 1916 1916 1921 1922 1922a 1922b 1923 1925 1930 1930 1930 1932 1937 1938 1939 1939 1940 1941 1941 1941 1943 1945 1946 1949 1949 1954 1954 1955 1957 1957 1959 1962 1962 1965 1967 1968 1968 1969 1970 1970 1970 1971 1971 1975 1981 1986 1986 1987 1988 1990 1991 1993 Nominee Louis D. Brandeis John H. Clarke William H. Taft* George Sutherland Pierce Butler Pierce Butler Edward T. Sanford Harlan F. Stone Charles E. Hughes* John J. Parker Owen J. Roberts Benjamin N. Cardozo Hugo L. Black Stanley F. Reed Felix Frankfurter William O. Douglas Frank Murphy Harlan F. Stone* James F. Byrnes Robert H. Jackson Wiley B. Rutledge Harold H. Burton Fred M. Vinson* Tom C. Clark Sherman Minton Earl Warren* John M. Harlan John M. Harlan William J. Brennan, Jr. Charles E. Whittaker Potter Stewart Byron R. White Arthur J. Goldberg Abe Fortas Thurgood Marshall Abe Fortas* Homer Thornberry Warren E. Burger* Clement Haynsworth, Jr. G. Harrold Carswell Harry A. Blackmun Lewis F. Powell, Jr. William H. Rehnquist John Paul Stevens Sandra Day O’Connor William H. Rehnquist* Antonin Scalia Robert H. Bork Anthony M. Kennedy David H. Souter Clarence Thomas Ruth Bader Ginsburg Final vote 47-22 UC 60-4 Voice Extent of opposition Opposition Floor days 1 1 1 1 Optional procedural actiona op n n n 1 1 4 4 8 1 1 1 1 1 2 1 1 1 1 1 1 1 2 1 1 opr n op opr op n n opr n n op n n n op n n n n opr n 2 2 1 1 1 1 1 2 6 op op n op n n n n opr 1 6 14 2 3 5 1 1 5 1 3 1 2 6 3 n op opr n n opr n n opr n op n n op n Notes No floor action 61-8 UC 71-6 52-26 39-41 UC UC 63-16 UC Voice 62-4 UC UC UC Voice Voice UC Voice 73-8 48-16 Voice Opposition Rejected Opposition Opposition b No floor action 71-11 Voice Voice 70-17 Voice Voice Voice 69-11 74-3 45-55 45-51 94-0 89-1 68-26 98-0 99-0 65-33 98-0 42-58 97-0 90-9 52-48 96-3 Opposition Opposition Opposition Unfinished Rejected Rejected Opposition Opposition Rejected Opposition c Withdrawn No floor action; withdrawn CRS-36 Year 1994 2005a 2005b 2005 Nominee Stephen G. Breyer John G. Roberts John G. Roberts* Harriet Miers Final vote 87-9 Extent of opposition Floor days 1 Optional procedural actiona n 78-22 Opposition 5 n Notes No floor action; withdrawn No floor action; withdrawn Source: Senate Executive Journal. Notes: Years are the year the nomination was submitted; action occasionally extended into the following year. Voice = confirmed by voice vote. Blank = scattered or none apparent. Opposition = confirmed with more 10 or more “nay” votes. Shading indicates floor proceedings lasting three or more days. For optional procedural actions, n = none, op = optional procedures without roll calls, and opr = optional procedures with roll calls. *Nomination for Chief Justice a. Includes only procedural actions having the potential for delaying consideration. For details, see Table 5 and accompanying text. b. Recorded as unanimous. c. One Senator asked to be recorded in opposition. CRS-37 Appendix II. Selected Characteristics of Committee Action on Supreme Court Nominations, 1789-2005 Year Nominee 1789 1789 1789 1789 1789 1789 1790 1791 1793a 1793b 1795 1796 1796 1796 1798 1799 1800 1801 1804 1806 1807 1811 1811 1811 1811 1811 1823 1826 1828 1829 1830 1835 1835a 1835b 1835 1837 1837 1837 1841 1844a 1844a 1844 1844b 1844b 1845 1845 John Jay* John Rutledge William Cushing Robert H. Harrison James Wilson John Blair James Iredell Thomas Johnson William Paterson William Paterson John Rutledge* William Cushing* Samuel Chase Oliver Ellsworth* Bushrod Washington Alfred Moore John Jay* John Marshall* William Johnson H. Brockholst Livingston Thomas Todd Levi Lincoln Alexander Wolcott John Quincy Adams Joseph Story Gabriel Duvall Smith Thompson Robert Trimble John J. Crittenden John McLean Henry Baldwin James M. Wayne Roger B. Taney Roger B. Taney* Philip P. Barbour William Smith John Catron John McKinley Peter V. Daniel John C. Spencer Reuben H. Walworth Edward King John C. Spencer Reuben H. Walworth Reuben H. Walworth Edward King Days from receipt to committee report (or other final action) Days of open committee hearings Form of reporting (or other final committee action) Floor Disposition no floor action; withdrawn rejected a 39 rejected recommended not to act 2 reported 8 8 5 5 6 reported reported reported reported reported 21 93 9 reported reported reported 42 42 reported reported unfinished unfinished rejected unfinished; withdrawn unfinished no floor action; withdrawn unfinished unfinished; withdrawn unfinished; withdrawn CRS-38 Year 1845 1845 1845 1845 1846 1851 1852 1853 1853 1853 1857 1861 1862 1862 1862 1863 1864 1866 1869 1869 1870 1870 1872 1874 1874 1874 1877 1880 1881a 1881b 1881 1882 1882 1888 1888 1889 1890 1892 1893 1893a 1893b 1894 1894 1895 1898 1902 1903 1906 1909 Nominee Samuel Nelson John M. Read George W. Woodward Levi Woodbury Robert C. Grier Benjamin R. Curtis Edward A. Bradford George E. Badger William C. Micou John A. Campbell Nathan Clifford Jeremiah S. Black Noah H. Swayne Samuel F. Miller David Davis Stephen J. Field Salmon P. Chase* Henry Stanbery Ebenezer R. Hoar Edwin M. Stanton William Strong Joseph P. Bradley Ward Hunt George H. Williams* Caleb Cushing* Morrison R. Waite* John M. Harlan William B. Woods Stanley Matthews Stanley Matthews Horace Gray Roscoe Conkling Samuel Blatchford Lucius Q.C. Lamar Melville W. Fuller* David J. Brewer Henry B. Brown George Shiras, Jr. Howell E. Jackson William B. Hornblower William B. Hornblower Wheeler H. Peckham Edward D. White Rufus W. Peckham Joseph McKenna Oliver W. Holmes William R. Day William H. Moody Horace Lurton Days from receipt to committee report (or other final action) 2 6 28 11 1 11 9 Days of open committee hearings Form of reporting (or other final committee action) reported reported reported reported reported reported reported 1 1 28 discharged reported reported 2 reported 2 2 reported reported Floor Disposition unfinished rejected unfinished unfinished no floor action unfinished b no action adversely 7 6 6 5 9 0 1 40 5 19d 53 1 6 9 29 61 12 6 6 11 b 33 21 6 28 2 4 7 3 c no floor action favorably favorably favorably favorably unfinished; withdrawn favorably no floor action; withdrawn favorably favorably favorably no action no floor action adversely favorably favorably favorably adversely without recommendation favorably favorably without recommendation favorably no action no floor action adversely rejected without recommendation rejected favorably favorably favorably favorably favorably favorably CRS-39 Year Nominee 1910 1910 1910 1910 1912 1914 1916 1916 1921 1922 1922a 1922b 1923 1925 1930 1930 1930 1932 1937 1938 1939 1939 1940 1941 1941 1941 1943 1945 1946 1949 1949 1954 1954 1955 1957 1957 1959 1962 1962 1965 1967 1968 1968 1969 1970 1970 1970 1971 1971 Charles E. Hughes Edward D. White* Willis Van Devanter Joseph R. Lamar Mahlon Pitney James C. McReynolds Louis D. Brandeis John H. Clarke William H. Taft* George Sutherland Pierce Butler Pierce Butler Edward T. Sanford Harlan F. Stone Charles E. Hughes* John J. Parker Owen J. Roberts Benjamin N. Cardozo Hugo L. Black Stanley F. Reed Felix Frankfurter William O. Douglas Frank Murphy Harlan F. Stone* James F. Byrnes Robert H. Jackson Wiley B. Rutledge Harold H. Burton Fred M. Vinson* Tom C. Clark Sherman Minton Earl Warren* John M. Harlan John M. Harlan William J. Brennan, Jr. Charles E. Whittaker Potter Stewart Byron R. White Arthur J. Goldberg Abe Fortas Thurgood Marshall Abe Fortas* Homer Thornberry Warren E. Burger* Clement Haynsworth, Jr. G. Harrold Carswell Harry A. Blackmun Lewis F. Powell, Jr. William H. Rehnquist Days from receipt to committee report (or other final action) 7 3 3 14 5 117 10 5 13 5 28 7 27 10 8 4 9 11 7 11 11 Days of open committee hearings 19 e 1 1 4 1 1 18 21 1 13 10 18 44 b 1 1 59 49 16 93 8 25 13 51 83 b 2 2 1 2 1 2 1 5 11 11 1 8 5 1 5 5 11 36 28 21 32 32 1 3 1 2 Form of reporting (or other final committee action) favorably Floor Disposition favorably favorably favorably favorably favorably favorably favorably favorably favorably favorably favorably adversely favorably favorably favorably favorably favorably favorably favorably favorably favorably favorably favorably favorably favorably favorably favorably no action favorably favorably favorably favorably favorably favorably favorably favorably favorably no action favorably favorably favorably favorably favorably favorably no floor action rejected no floor action unfinished; withdrawn no floor action; withdrawn rejected rejected CRS-40 Year 1975 1981 1986 1986 1987 1988 1990 1991 1993 1994 2005a 2005b 2005 Nominee John Paul Stevens Sandra Day O’Connor William H. Rehnquist* Antonin Scalia Robert H. Bork Anthony M. Kennedy David H. Souter Clarence Thomas Ruth Bader Ginsburg Stephen G. Breyer John G. Roberts John G. Roberts* Harriet Miers Days from receipt to committee report (or other final action) 10 27 55 51 91 58 64 81 37 63 b 16 b Days of open committee hearings 3 3 4 2 12 3 5 8f 4 4 4 Form of reporting (or other Floor final Disposition committee action) favorably favorably favorably favorably unfavorably rejected favorably favorably without recommendation favorably favorably no action no floor action; withdrawn favorably no action no floor action; withdrawn Source: CRS Report RL33225, Supreme Court Nominations, 1789-2005: Actions by the Senate, the Judiciary Committee, and the President, by Denis Steven Rutkus and Maureen Bearden. Notes: Years are the year the nomination was submitted; action occasionally extended into the following year. Days from receipt to committee report (or other final action): Records only initial referrals before floor consideration; blanks indicate nomination was not referred before floor consideration. Days of open committee hearings: Blanks indicate that no open committee hearings are known to have been held. Form of reporting (or other final committee action): Blanks appear where no initial committee referral was made. Shading indicates instances in which committee action took a form other than the normal form of favorable committee action. “Reported” was the normal form of favorable committee action from 1835 to 1865; “reported favorably” thereafter. Floor disposition: Blanks indicate that the nomination was confirmed. * Nomination for Chief Justice a. The Senate referred the Wolcott nomination to a special committee only subsequent to the start of floor consideration. b. The nomination was referred, but the committee took no final action. c. The committee held two days of closed hearings on the Williams nomination after it was recommitted subsequent to the start of floor consideration. d. The committee took no action to report the first Matthews nomination, but at the end of the period stated voted to postpone it. e. The committee held one day of hearings on the Stone nomination after it was recommitted subsequent to the start of floor consideration f. The committee held three additional days of hearings on the Thomas nomination subsequent to the start of floor consideration, although the nomination was not formally recommitted.