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were withdrawn).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, 1789-
1989.
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 17-
24 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 Ibid, p. 638.
14 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 Savage, Guide to the U.S. Supreme Court, pp. 958-959.
20 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 Ibid., pp. 37-38.
34 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
Later Action on
Individual
Last Procedural
With-
Nomination
Total
Floor Action
drawn?a
Renom-
Con-
inated?a
firmed?b
No Floor Action
12
Nonec
Harriet Miers, 2005
yes
John Roberts, 2005
yes
yes
yes
Homer Thornberry, 1968
yes
John M. Harlan, 1954
yes
yes
Pierce Butler, 1922a
yes
yes
William Hornblower, 1893a
yes
rejected
Stanley Matthews, 1881a
yes
yes
Caleb Cushing, 1874
yes
Henry Stanbery, 1866
William Micou, 1853
John C. Spencer, 1844b
yes
William Paterson, 1793a
yes
yes
yes
Floor Action Without Vote on Confirmation
13
Tabled
Edward A. Bradford, 1852
Edward King, 1845
yes
Reuben H. Walworth, 1845
yes
Reuben H. Walworth, 1844a
yes
yes
no
Edward King, 1844
yes
no
Postponedd
George E. Badger, 1853
Roger B. Taney, 1835a
yes
yes
John J. Crittenden, 1828
Motion to consider
Jeremiah S. Black, 1861
defeated
Motion to consider
Reuben H. Walworth, 1844b
yes
no
met objection
Cloture failed on
Abe Fortas, 1968
yes
motion to consider
Recommitted
George H. Williams, 1874
yes
No procedurese
John M. Read, 1845
Total
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 three-
quarters 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
Extent of Opposition Indicated by
Outcome
Type of Vote
Form of Disposition (see text)
Form of Disposition
No Final
Roll
Scattered
Indeter-
Confirmed Rejected
Voicea
None
“Significant”
Action
Call
or None
minate
Confirmed, voice votea
73
73
73
Confirmed, roll call vote,
25
25
25
fewer than 10 opposed
Confirmed, roll call vote,
23
23
23
10 or more opposed
Rejected (all by roll call vote)
11
11
11
Floor action without final vote
13
13
13
No floor action
12
12
12
Total
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
92
8
55
45
reaching a vote
Percent of 145 nominations
68
32
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
Number of
Disposition (if
For Chief
Days
Nominations
Nominations
not confirmed)
Justice?
1
100
[not listed]
2
21
3
10
4
5
John G. Roberts, 2005
yes
Charles Evans Hughes, 1930
yes
Harlan F. Stone, 1925
Joseph P. Bradley, 1870
Alexander Wolcott, 1811
rejected
5
3
Clarence Thomas, 1991
William H. Rehnquist, 1986
yes
William H. Rehnquist, 1971
6
2
Abe Fortas, 1968
unfinished
yes
George E. Badger, 1853
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
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
Received a
Had Effect of
Potentially
Occurred
Roll Call
Terminating
Involved Delay
Vote
Consideration
b
b
Intervention in calling up
23a
13g
Motion to postpone
19
8
19
3
b
b
Consent agreement for final vote
17c
6h
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
b
b
Live quorum call
11
11
Motion to adjourn or recess
7 e
6
7
0
Motion to reconsider
3
1
3
0
Motion for cloture
3
3
3
1
Total number of nominations
67f
25
55
12
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
Optional
Final
Extent of
Floor
procedural
Notes
Year
Nominee
vote
opposition
days
actiona
1789
John Jay*
Voice
1
n
1789
John Rutledge
Voice
1
n
1789
William Cushing
Voice
1
n
1789
Robert H. Harrison
Voice
1
n
Declined to serve
1789
James Wilson
Voice
1
n
1789
John Blair
Voice
1
n
1790
James Iredell
Voice
1
n
1791
Thomas Johnson
Voice
1
n
1793a
William Paterson
No floor action; withdrawn
1793b
William Paterson
Voice
1
n
1795
John Rutledge*
10-14
Rejected
2
op
1796
William Cushing*
Voice
1
n
Declined to serve
1796
Samuel Chase
Voice
1
n
1796
Oliver Ellsworth*
21-1
1
n
1798
Bushrod Washington
Voice
1
n
1799
Alfred Moore
Voice
3
op
1800
John Jay*
Voice
1
n
Declined to serve
1801
John Marshall*
Voice
1
n
1804
William Johnson
Voice
1
n
1806
H. Brockholst Livingston
Voice
1
n
1807
Thomas Todd
Voice
1
n
1811
Levi Lincoln
Voice
1
n
Declined to serve
1811
Alexander Wolcott
9-24
Rejected
4
op
1811
John Quincy Adams
Voice
1
n
Declined to serve
1811
Joseph Story
Voice
1
n
1811
Gabriel Duvall
Voice
1
n
1823
Smith Thompson
Voice
1
n
1826
Robert Trimble
27-5
2
opr
1828
John J. Crittenden
Unfinished
9
opr
1829
John McLean
Voice
1
n
1830
Henry Baldwin
41-2
1
n
1835
James M. Wayne
Voice
1
n
1835a
Roger B. Taney
Unfinished
3
opr
1835b
Roger B. Taney*
29-15
Opposition
3
opr
1835
Philip P. Barbour
30-11
Opposition
1
opr
1837
William Smith
23-18
Opposition
2
op
Declined to serve
1837
John Catron
28-15
Opposition
2
op
1837
John McKinley
Voice
1
n
1841
Peter V. Daniel
22-5
1
opr
1844a
John C. Spencer
21-26
Rejected
1
n
1844a
Reuben H. Walworth
Unfinished
1
opr
Withdrawn
1844
Edward King
Unfinished
1
opr
1844b
John C. Spencer
No floor action; withdrawn
1844b
Reuben H. Walworth
Unfinished
1
op
1845
Reuben H. Walworth
Unfinished
1
op
Withdrawn
1845
Edward King
Unfinished
1
op
Withdrawn
1845
Samuel Nelson
Voice
1
op
1845
John M. Read
Unfinished
1
op
1845
George W. Woodward
20-29
Rejected
2
opr
CRS-34
Optional
Final
Extent of
Floor
procedural
Notes
Year
Nominee
vote
opposition
days
actiona
1845
Levi Woodbury
Voice
1
n
1846
Robert C. Grier
Voice
1
n
1851
Benjamin R. Curtis
Voice
1
n
1852
Edward A. Bradford
Unfinished
1
op
1853
George E. Badger
Unfinished
6
opr
1853
William C. Micou
No floor action
1853
John A. Campbell
Voice
1
n
1857
Nathan Clifford
26-23
Opposition
2
op
1861
Jeremiah S. Black
Unfinished
3
opr
1862
Noah H. Swayne
38-1
1
n
1862
Samuel F. Miller
Voice
1
n
1862
David Davis
Voice
1
n
1863
Stephen J. Field
Voice
1
n
1864
Salmon P. Chase*
Voice
1
n
1866
Henry Stanbery
No floor action
1869
Ebenezer R. Hoar
24-33
Opposition
2
opr
1869
Edwin M. Stanton
46-11
Opposition
1
n
Did not serve
1870
William Strong
Voice
3
opr
1870
Joseph P. Bradley
46-9
4
opr
1872
Ward Hunt
Voice
1
n
1874
George H. Williams*
Unfinished
2
op
Withdrawn
1874
Caleb Cushing*
No floor action; withdrawn
1874
Morrison R. Waite*
63-0
1
op
1877
John M. Harlan
Voice
1
op
1880
William B. Woods
39-8
2
opr
1881a
Stanley Matthews
No floor action
1881b
Stanley Matthews
24-23
Opposition
3
op
1881
Horace Gray
51-5
1
n
1882
Roscoe Conkling
39-12
Opposition
1
n
Declined to serve
1882
Samuel Blatchford
Voice
1
n
1888
Lucius Q.C. Lamar
32-28
Opposition
1
n
1888
Melville W. Fuller*
41-20
Opposition
1
n
1889
David J. Brewer
53-11
Opposition
2
opr
1890
Henry B. Brown
Voice
1
n
1892
George Shiras, Jr.
Voice
1
n
1893
Howell E. Jackson
Voice
2
op
1893a
William B. Hornblower
No floor action
1893b
William B. Hornblower
24-30
Rejected
2
op
1894
Wheeler H. Peckham
32-41
Rejected
3
op
1894
Edward D. White
Voice
1
n
1895
Rufus W. Peckham
Voice
1
n
1898
Joseph McKenna
Voice
2
op
1902
Oliver W. Holmes
Voice
1
n
1903
William R. Day
Voice
1
n
1906
William H. Moody
Voice
1
n
1909
Horace Lurton
Voice
1
n
1910
Charles E. Hughes
Voice
1
n
1910
Edward D. White*
UC
1
n
1910
Willis Van Devanter
Voice
1
n
1910
Joseph R. Lamar
Voice
1
n
1912
Mahlon Pitney
50-26
Opposition
3
n
1914
James C. McReynolds
44-6
2
n
CRS-35
Optional
Final
Extent of
Floor
procedural
Notes
Year
Nominee
vote
opposition
days
actiona
1916
Louis D. Brandeis
47-22
Opposition
1
op
1916
John H. Clarke
UC
1
n
1921
William H. Taft*
60-4
1
n
1922
George Sutherland
Voice
1
n
1922a
Pierce Butler
No floor action
1922b
Pierce Butler
61-8
1
opr
1923
Edward T. Sanford
UC
1
n
1925
Harlan F. Stone
71-6
4
op
1930
Charles E. Hughes*
52-26
Opposition
4
opr
1930
John J. Parker
39-41
Rejected
8
op
1930
Owen J. Roberts
UC
1
n
1932
Benjamin N. Cardozo
UC
1
n
1937
Hugo L. Black
63-16
Opposition
1
opr
1938
Stanley F. Reed
UC
1
n
1939
Felix Frankfurter
Voice
1
n
1939
William O. Douglas
62-4
2
op
1940
Frank Murphy
UC
1
n
1941
Harlan F. Stone*
UC
1
n
1941
James F. Byrnes
UC
1
n
1941
Robert H. Jackson
Voice
1
op
1943
Wiley B. Rutledge
Voice
1
n
1945
Harold H. Burton
UC
1
n
1946
Fred M. Vinson*
Voice
1
n
1949
Tom C. Clark
73-8
2
n
1949
Sherman Minton
48-16
Opposition
1
opr
b
1954
Earl Warren*
Voice
1
n
1954
John M. Harlan
No floor action
1955
John M. Harlan
71-11
Opposition
2
op
1957
William J. Brennan, Jr.
Voice
2
op
1957
Charles E. Whittaker
Voice
1
n
1959
Potter Stewart
70-17
Opposition
1
op
1962
Byron R. White
Voice
1
n
c
1962
Arthur J. Goldberg
Voice
1
n
1965
Abe Fortas
Voice
1
n
1967
Thurgood Marshall
69-11
Opposition
2
n
1968
Abe Fortas*
Unfinished
6
opr
Withdrawn
1968
Homer Thornberry
No floor action; withdrawn
1969
Warren E. Burger*
74-3
1
n
1970
Clement Haynsworth, Jr.
45-55
Rejected
6
op
1970
G. Harrold Carswell
45-51
Rejected
14
opr
1970
Harry A. Blackmun
94-0
2
n
1971
Lewis F. Powell, Jr.
89-1
3
n
1971
William H. Rehnquist
68-26
Opposition
5
opr
1975
John Paul Stevens
98-0
1
n
1981
Sandra Day O’Connor
99-0
1
n
1986
William H. Rehnquist*
65-33
Opposition
5
opr
1986
Antonin Scalia
98-0
1
n
1987
Robert H. Bork
42-58
Rejected
3
op
1988
Anthony M. Kennedy
97-0
1
n
1990
David H. Souter
90-9
2
n
1991
Clarence Thomas
52-48
Opposition
6
op
1993
Ruth Bader Ginsburg
96-3
3
n
CRS-36
Optional
Final
Extent of
Floor
procedural
Notes
Year
Nominee
vote
opposition
days
actiona
1994
Stephen G. Breyer
87-9
1
n
2005a
John G. Roberts
No floor action; withdrawn
2005b
John G. Roberts*
78-22
Opposition
5
n
2005
Harriet Miers
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
Days from
Form of
receipt to
reporting
Days of
committee
(or other
Floor
open
Year
Nominee
report (or
final
Disposition
committee
other final
committee
hearings
action)
action)
1789
John Jay*
1789
John Rutledge
1789
William Cushing
1789
Robert H. Harrison
1789
James Wilson
1789
John Blair
1790
James Iredell
1791
Thomas Johnson
1793a
William Paterson
no floor action; withdrawn
1793b
William Paterson
1795
John Rutledge*
rejected
1796
William Cushing*
1796
Samuel Chase
1796
Oliver Ellsworth*
1798
Bushrod Washington
1799
Alfred Moore
1800
John Jay*
1801
John Marshall*
1804
William Johnson
1806
H. Brockholst Livingston
1807
Thomas Todd
1811
Levi Lincoln
a
1811
Alexander Wolcott
rejected
1811
John Quincy Adams
1811
Joseph Story
1811
Gabriel Duvall
1823
Smith Thompson
1826
Robert Trimble
1828
John J. Crittenden
39
recommended not to act
unfinished
1829
John McLean
1830
Henry Baldwin
1835
James M. Wayne
2
reported
1835a
Roger B. Taney
unfinished
1835b
Roger B. Taney*
8
reported
1835
Philip P. Barbour
8
reported
1837
William Smith
5
reported
1837
John Catron
5
reported
1837
John McKinley
6
reported
1841
Peter V. Daniel
1844a
John C. Spencer
21
reported
rejected
1844a
Reuben H. Walworth
93
reported
unfinished; withdrawn
1844
Edward King
9
reported
unfinished
1844b
John C. Spencer
no floor action; withdrawn
1844b
Reuben H. Walworth
unfinished
1845
Reuben H. Walworth
42
reported
unfinished; withdrawn
1845
Edward King
42
reported
unfinished; withdrawn
CRS-38
Days from
Form of
receipt to
reporting
Days of
committee
(or other
Floor
open
Year
Nominee
report (or
final
Disposition
committee
other final
committee
hearings
action)
action)
1845
Samuel Nelson
2
reported
1845
John M. Read
6
reported
unfinished
1845
George W. Woodward
28
reported
rejected
1845
Levi Woodbury
11
reported
1846
Robert C. Grier
1
reported
1851
Benjamin R. Curtis
11
reported
1852
Edward A. Bradford
9
reported
unfinished
1853
George E. Badger
unfinished
1853
William C. Micou
1
discharged
no floor action
1853
John A. Campbell
1
reported
1857
Nathan Clifford
28
reported
1861
Jeremiah S. Black
unfinished
1862
Noah H. Swayne
2
reported
1862
Samuel F. Miller
1862
David Davis
2
reported
1863
Stephen J. Field
2
reported
1864
Salmon P. Chase*
b
1866
Henry Stanbery
no action
no floor action
1869
Ebenezer R. Hoar
7
adversely
1869
Edwin M. Stanton
1870
William Strong
6
favorably
1870
Joseph P. Bradley
6
favorably
1872
Ward Hunt
5
favorably
c
1874
George H. Williams*
9
favorably
unfinished; withdrawn
1874
Caleb Cushing*
0
favorably
no floor action; withdrawn
1874
Morrison R. Waite*
1
favorably
1877
John M. Harlan
40
favorably
1880
William B. Woods
5
favorably
1881a
Stanley Matthews
19d
no action
no floor action
1881b
Stanley Matthews
53
adversely
1881
Horace Gray
1
favorably
1882
Roscoe Conkling
6
favorably
1882
Samuel Blatchford
9
favorably
1888
Lucius Q.C. Lamar
29
adversely
1888
Melville W. Fuller*
61
without recommendation
1889
David J. Brewer
12
favorably
1890
Henry B. Brown
6
favorably
1892
George Shiras, Jr.
6
without recommendation
1893
Howell E. Jackson
11
favorably
b
1893a
William B. Hornblower
no action
no floor action
1893b
William B. Hornblower
33
adversely
rejected
1894
Wheeler H. Peckham
21
without recommendation
rejected
1894
Edward D. White
1895
Rufus W. Peckham
6
favorably
1898
Joseph McKenna
28
favorably
1902
Oliver W. Holmes
2
favorably
1903
William R. Day
4
favorably
1906
William H. Moody
7
favorably
1909
Horace Lurton
3
favorably
CRS-39
Days from
Form of
receipt to
reporting
Days of
committee
(or other
Floor
open
Year
Nominee
report (or
final
Disposition
committee
other final
committee
hearings
action)
action)
1910
Charles E. Hughes
7
favorably
1910
Edward D. White*
1910
Willis Van Devanter
3
favorably
1910
Joseph R. Lamar
3
favorably
1912
Mahlon Pitney
14
favorably
1914
James C. McReynolds
5
favorably
1916
Louis D. Brandeis
117
19
favorably
1916
John H. Clarke
10
favorably
1921
William H. Taft*
1922
George Sutherland
1922a
Pierce Butler
5
favorably
no floor action
1922b
Pierce Butler
13
favorably
1923
Edward T. Sanford
5
favorably
e
1925
Harlan F. Stone
28
favorably
1930
Charles E. Hughes*
7
favorably
1930
John J. Parker
27
1
adversely
rejected
1930
Owen J. Roberts
10
favorably
1932
Benjamin N. Cardozo
8
favorably
1937
Hugo L. Black
4
favorably
1938
Stanley F. Reed
9
1
favorably
1939
Felix Frankfurter
11
4
favorably
1939
William O. Douglas
7
1
favorably
1940
Frank Murphy
11
favorably
1941
Harlan F. Stone*
11
1
favorably
1941
James F. Byrnes
1941
Robert H. Jackson
18
1
favorably
1943
Wiley B. Rutledge
21
1
favorably
1945
Harold H. Burton
1
favorably
1946
Fred M. Vinson*
13
1
favorably
1949
Tom C. Clark
10
3
favorably
1949
Sherman Minton
18
1
favorably
1954
Earl Warren*
44
2
favorably
b
1954
John M. Harlan
no action
no floor action
1955
John M. Harlan
59
2
favorably
1957
William J. Brennan, Jr.
49
2
favorably
1957
Charles E. Whittaker
16
1
favorably
1959
Potter Stewart
93
2
favorably
1962
Byron R. White
8
1
favorably
1962
Arthur J. Goldberg
25
2
favorably
1965
Abe Fortas
13
1
favorably
1967
Thurgood Marshall
51
5
favorably
1968
Abe Fortas*
83
11
favorably
unfinished; withdrawn
b
1968
Homer Thornberry
11
no action
no floor action; withdrawn
1969
Warren E. Burger*
11
1
favorably
1970
Clement Haynsworth, Jr.
36
8
favorably
rejected
1970
G. Harrold Carswell
28
5
favorably
rejected
1970
Harry A. Blackmun
21
1
favorably
1971
Lewis F. Powell, Jr.
32
5
favorably
1971
William H. Rehnquist
32
5
favorably
CRS-40
Days from
Form of
receipt to
reporting
Days of
committee
(or other
Floor
open
Year
Nominee
report (or
final
Disposition
committee
other final
committee
hearings
action)
action)
1975
John Paul Stevens
10
3
favorably
1981
Sandra Day O’Connor
27
3
favorably
1986
William H. Rehnquist*
55
4
favorably
1986
Antonin Scalia
51
2
favorably
1987
Robert H. Bork
91
12
unfavorably
rejected
1988
Anthony M. Kennedy
58
3
favorably
1990
David H. Souter
64
5
favorably
1991
Clarence Thomas
81
8f
without recommendation
1993
Ruth Bader Ginsburg
37
4
favorably
1994
Stephen G. Breyer
63
4
favorably
b
2005a
John G. Roberts
no action
no floor action; withdrawn
2005b
John G. Roberts*
16
4
favorably
b
2005
Harriet Miers
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.