Order Code RL33118
Speed of Presidential and Senate Actions on
Supreme Court Nominations, 1900-2006
Updated January 24, 2007
R. Sam Garrett
Analyst in American National Government
Government and Finance Division
Denis Steven Rutkus
Specialist in American National Government
Government and Finance Division
Curtis W. Copeland
Specialist in American National Government
Government and Finance Division

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Speed of Presidential and Senate Actions on Supreme
Court Nominations, 1900-2006
Summary
The speed with which appointments to the Supreme Court move through various
stages in the nomination-and-confirmation process is often of great interest not only
to all parties directly involved, but, as well, to the nation as a whole. Shortly after his
October 31, 2005, nomination of Samuel A. Alito Jr. to fill the Associate Justice seat
being vacated by Sandra Day O’Connor, President Bush called on the Senate to “act
promptly on this important nomination so that an up or down vote is held before the
end of this year.” On November 3, 2005, Judiciary Committee Chairman Arlen
Specter and Ranking Member Patrick Leahy announced that hearings on the Alito
nomination would begin on January 9, 2006, with final Senate action scheduled for
January 20, 2006. Judiciary Committee hearings on the Alito nomination began and
concluded as scheduled. Although the schedule announced in November 2005 called
for a committee vote on the nomination on January 17, the committee vote was
postponed until January 24, 2006. The full Senate confirmed Judge Alito by a vote
of 58-42 on January 31, 2006, making him the nation’s 110th Supreme Court Justice.
This report provides information on the amount of time taken to act on all
Supreme Court nominations occurring between 1900 and the present. It focuses on
the actual amounts of time that Presidents and the Senate have taken to act (as
opposed to the elapsed time between official points in the process). For example,
rather than starting the nomination clock with the official notification of the President
of a forthcoming vacancy (e.g., via receipt of a formal retirement letter), this report
focuses on when the President first learned of a Justice’s intention to leave the Court
(e.g., via a private conversation with the outgoing Justice), or received word that a
sitting Justice had died. Likewise, rather than starting the confirmation clock with
the transmission of the official nomination to the Senate, this report focuses on when
the Senate became aware of the President’s selection (e.g., via a public
announcement by the President).
The data indicate that the entire nomination-and-confirmation process (from
when the President first learned of a vacancy to final Senate action) has generally
taken almost twice as long for nominees after 1980 than for nominees in the previous
80 years. From 1900 to 1980, the entire process took a median of 59 days; from 1981
through 2006, the process took a median of 113 days. Although Presidents after
1980 have moved more quickly than their predecessors in announcing nominees after
learning of vacancies (a median of 12 days compared with 34 days before 1980), the
Senate portion of the process (i.e., from the nomination announcement to final Senate
action) now appears to take much longer than before (a median of 84 days from 1981
through 2006, compared with 17 days from 1900 through 1980). Most notably, the
amount of time between the nomination announcement and first Judiciary Committee
hearing has more than tripled — from a median of 12.5 days (1900-1980) to 52 days.
This report will be updated as additional historical information becomes
available or another Supreme Court vacancy is announced.

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Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Recent Nominations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
The Roberts Nomination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
The Miers Nomination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
The Alito Nomination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Measuring the Pace of Supreme Court Appointments . . . . . . . . . . . . . . . . . . 5
Official and Unofficial Timetables . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Objectives of This Report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
How Supreme Court Vacancies Occur . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Death of a Sitting Justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Retirement or Resignation of a Sitting Justice . . . . . . . . . . . . . . . . . . . . 8
Nomination of a Sitting Justice to Another Position . . . . . . . . . . . . . . . 9
Controversial, Withdrawn, and Rejected Nominations . . . . . . . . . . . . 10
Data Presentation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Date of Actual or Prospective Vacancy . . . . . . . . . . . . . . . . . . . . . . . . 11
Announcement-of-Nominee Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Use of Medians to Summarize Intervals . . . . . . . . . . . . . . . . . . . . . . . 12
The Duration of the Nomination-and-Confirmation Process . . . . . . . . . . . . 13
Changes Since 1981 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Factors Influencing the Speed of the Process . . . . . . . . . . . . . . . . . . . . . . . 16
How the Vacancy Occurs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
The Senate’s Schedule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Committee Involvement and Institutional Customs . . . . . . . . . . . . . . 19
Controversial Nominations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Discussion and Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
List of Figures
Figure 1. Speed in Days of Intervals Surrounding Supreme Court
Nominations and Confirmations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
List of Tables
Table 1. Major Events in the Supreme Court Nomination-and-Confirmation
Process, 1900-2006 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Table 2. Duration in Days Between Major Events in the Supreme Court
Nomination-and-Confirmation Process, 1900-2006 . . . . . . . . . . . . . . . . . . 41
Table 3. Median Duration in Days Between Major Events in the
Supreme Court Nomination-and-Confirmation Process, 1900-2006 . . . . . . 61

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Speed of Presidential and Senate Actions
on Supreme Court Nominations, 1900-2006
Introduction
The nomination and confirmation of a Chief Justice or an Associate Justice to
the U.S. Supreme Court is an infrequent event of major significance in American
public life. To receive what may be lifetime appointment to the Court, a candidate
must first be nominated by the President and then confirmed by the Senate. Midway
in the appointment process, intensive hearings on a Supreme Court nomination, often
taking at least three or four days, are routinely held by the Senate Judiciary
Committee, which then can vote on whether to report the nomination to the Senate
with a favorable recommendation.
Nominating and confirming Supreme Court Justices is an interdependent
process. Neither the President nor the Senate acts alone. The decisions that each
branch makes determine how quickly nominations are made and considered, and
whether the nomination is successful. This report provides information on the pace
of all Supreme Court nominations and confirmations since 1900, focusing on the
actual amounts of time that Presidents and the Senate have taken to act (as opposed
to the elapsed time between official points in the process). Events during 2005 and
early 2006 underscored concerns about the speed with which the President makes
Supreme Court nominations and the Senate acts on those nominations.1
Recent Nominations
Late 2005 and early 2006 marked a period of transition among Supreme Court
Justices. Associate Justice Sandra Day O’Connor’s July 2005 retirement
announcement marked the first pending Court vacancy since 1994. Within a few
months, however, the Senate considered three nominations. As is discussed below,
Judge John G. Roberts was initially nominated to replace O’Connor, but that
nomination was withdrawn when Chief Justice William H. Rehnquist died in early
September. The Roberts nomination was withdrawn and re-submitted for the Chief
Justice vacancy. The Senate confirmed Roberts in September 2005. Then-White
House Counsel Harriet Miers was initially nominated to fill the again-pending
O’Connor vacancy, but the Miers nomination was eventually withdrawn. Judge
Samuel Alito was confirmed to the O’Connor seat in January 2006.
1 For a discussion of official actions for all Supreme Court nominations since 1789, see CRS
Report RL33225, Supreme Court Nominations, 1789-2006: Actions by the Senate, the
Judiciary Committee, and the President, by Denis Steven Rutkus and Maureen Bearden.

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CRS-2
As is noted throughout this report, media accounts and other research suggest
that when these and other Court vacancies arise, the President, members of the
Senate, and their staffs, can begin work on nominations immediately, even if official
nominations are days or weeks away. Particularly when multiple vacancies occur in
close succession or simultaneously, as they did in 2005, the President and the Senate
might have different preferences about how quickly new nominees should be
considered. Until 1980, the President often took longer to announce a nominee than
the Senate did to take final action on nominees. By contrast, since 1981, Presidents
have been quicker to announce nominations than the Senate has been to confirm or
reject those nominations. The President and members of the Senate (especially the
Judiciary Committee) each proposed their own timetables regarding the Roberts,
Miers, and Alito nominations. The following discussion provides additional details.
The Roberts Nomination. On July 1, 2005, Associate Justice Sandra Day
O’Connor surprised many in official Washington, and possibly President George W.
Bush, with a one-paragraph letter announcing her retirement from the Supreme
Court, effective upon the confirmation of her successor.2 Her announcement created
the first vacancy on the Court in 11 years. The Court had just concluded its 2004-
2005 term, and the opening session of the Court’s next term, on October 3, 2005, was
three months away. Finding a new Associate Justice took on added urgency, given
the failing health of then-Chief Justice William H. Rehnquist. Departure of the Chief
Justice as well as Justice O’Connor could result in the need for two Court
appointments, and create the possibility of at least one vacancy on the Court when
it reconvened in October — unless the new appointments were made expeditiously.
Hours after Justice O’Connor announced her retirement, a senior aide to Senate
Majority Leader Bill Frist told reporters that, “Our goal is to have the court back at
full strength by the first Monday in October.” Senate Judiciary Committee staff were
reportedly “poised to begin reviewing background materials” on potential nominees.3
Nevertheless, appointment of a new Justice in time for the Court’s opening session
seemed like a challenging goal. In recent years, the Senate Judiciary Committee, and
the full Senate as well, had been embroiled in controversies over some of the
President’s nominations to the lower federal courts. Continued controversy seemed
likely surrounding any future nominations to the Supreme Court.
On July 19, 2005, 18 days after receiving Justice O’Connor’s retirement letter,
President Bush announced his selection of John G. Roberts, Jr., a federal appellate
judge, to be the next Associate Justice. Ten days later, on July 29, the President
formally nominated Judge Roberts to the Court, with the nomination document
immediately transmitted to the Senate, where it was referred to the Senate Judiciary
Committee. Hearings on this nomination were scheduled to begin September 6, but
those hearings would never take place.
2 Justice O’Connor’s retirement letter is available at
[http://www.supremecourtus.gov/publicinfo/press/oconnor070105.pdf].
3 “Senate GOP Leaders Seek Quick Action on Nominee to Replace Justice O’Connor,”
Daily Report for Executives, July 5, 2005, p. A-33.

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CRS-3
When Chief Justice William H. Rehnquist died on September 3, Judge Roberts
became the first Supreme Court nominee to be withdrawn by the President for one
seat on the Court and re-nominated for another. The Senate Judiciary Committee
quickly cancelled its Associate Justice hearings, and began Roberts’s Chief Justice
hearings on September 12, 2005. After receiving a favorable 13-5 vote by the
Judiciary Committee on September 22, the nomination of Judge Roberts to be Chief
Justice was confirmed by the Senate on the morning of September 29, 2005, by a 78-
22 vote. Later that day, the confirmed nominee took both his constitutional and
judicial oaths of office at the White House.4
Due to the speed with which Judge Roberts was nominated to be Chief Justice
and considered by the Senate Judiciary Committee and the full Senate, his
appointment was completed in time for the Court to be at full strength at the start of
its 2005-2006 term. With the start of that term, Justice O’Connor remained on the
Court, in keeping with the intention stated in her retirement letter of stepping down
only upon the confirmation of her successor. For his part, President Bush had
declined to name a replacement for John Roberts to succeed Sandra Day O’Connor
prior to the Senate vote on September 29 confirming Judge Roberts as Chief Justice.
The Miers Nomination. On October 3, 2005, President Bush announced his
nomination of White House Counsel Harriet E. Miers to succeed Sandra Day
O’Connor as Associate Justice on the Supreme Court. The President said that the
Senate had shown during the confirmation of Chief Justice Roberts that it could act
promptly, and called upon the Senate to “review [Miers’s] qualifications thoroughly
and fairly and to vote on her nomination promptly.”5 At a press conference the next
day, the President said that he expected the Senate “to hold an up-or-down vote on
Harriet’s nomination by Thanksgiving” (i.e., by November 24, 2005).6 Similarly,
Senate Majority Leader Bill Frist called on his colleagues to move “expeditiously but
carefully,” and encouraged a floor vote “by Thanksgiving.”7 Several news reports
suggested that confirmation hearings could begin as early as November 7, 2005.
Senator Arlen Specter, Chairman of the Senate Judiciary Committee, reportedly told
reporters that he hoped the committee would complete hearings by Thanksgiving,8
but also reportedly emphasized that “thoroughness will be the objective,” as opposed
4 The judicial oath is required by the Judiciary Act of 1789, and the constitutional oath
(which is administered to Members of Congress and all executive and judicial officers) is
required by Article VI of the Constitution of the United States.
5 See [http://www.whitehouse.gov/news/releases/2005/10/20051003.html] for the
President’s nomination statement and Miers’s remarks.
6 See [http://www.whitehouse.gov/news/releases/2005/10/20051004-1.html] for the text of
this press conference.
7 See [http://frist.senate.gov/index.cfm?FuseAction=Speeches.Detail&Speech_id=293] for
a copy of Senator Frist’s statement.
8 Kimberly Heffling, “Specter Decries Bush ‘Pummeling’ on Miers,” Washington Post, Oct.
11, 2005
[http://www.washingtonpost.com/wp-dyn/content/article/2005/10/11/AR2005101101310
.html].

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CRS-4
to meeting a particular timetable.9 He also reportedly said that the timing of hearings
on the nomination would in part be up to Miers, who would have to study “so that
she would have the grasp of these very complex decisions.”10
On October 27, 2005, Miers delivered a letter to the President withdrawing her
nomination as Associate Justice, and the President “reluctantly accepted” her
withdrawal.11 Both Miers and the President indicated that the action was precipitated
by the Senate’s request for documents about her service in the White House.
However, others suggested that other factors may have been involved.12 In his
statement accepting the withdrawal, the President said that he expected to fill the
vacancy “in a timely manner.”
The Alito Nomination. Four days after Harriet Miers’s withdrawal, on
October 31, 2005, President George W. Bush announced his nomination of Samuel
A. Alito, Jr., a judge on the U.S. Court of Appeals for the Third Circuit, to replace
Justice O’Connor. President Bush called on the Senate to “act promptly on this
important nomination so that an up or down vote is held before the end of this
year.”13 Senate Majority Leader Bill Frist also predicted a relatively quick timetable
for Senate consideration,14 but other Senators, including Minority Leader Harry Reid,
suggested that Senate consideration of the nomination could last into the new year.15
On November 3, 2005, Senate Judiciary Committee Chairman Arlen Specter
and Ranking Minority Member Patrick Leahy announced that confirmation hearings
on Judge Alito’s nomination would not begin until January 9, 2006, with a vote by
the committee scheduled for January 17, 2006, after five days of hearings. They said
9 John Stanton, “Leaders Seeking To Place Miers On Court By Thanksgiving,”
CongressDailyPM, Oct. 3, 2005.
10 Sheryl Gay Stolberg, “Some Liberals and Conservatives Find Themselves in Awkward
Spots,” New York Times, Oct. 4, 2005, p. A23.
11 For a copy of the President’s statement, see [http://www.whitehouse.gov/news/releases/
2005/10/20051027-2.html].
12 For example, former Senator Daniel R. Coats, who shepherded Miers in the Senate, said
“It was not all about the documents. It was a cumulation of things.” See Keith Perine and
Seth Stern, “Bush Faces Dilemma With New Pick,” CQ Today, Oct. 27, 2005. See
[http://www.cq.com/display.do?dockey=/cqonline/prod/data/docs/html/news/109/news10
9-000001936032.html@allnews&metapub=CQ-NEWS&searchIndex=0&seqNum=1].
13 For President George W. Bush’s nomination remarks and Judge Alito’s response, see
[http://www.whitehouse.gov/news/releases/2005/10/print/20051031.html].
14 For a copy of Senator Frist’s press release, see [http://frist.senate.gov/index
.cfm?FuseAction=PressReleases.Detail&PressRelease_id=2144&Month=10&Year=2005].
15 See The Associated Press, “Reaction to the Alito Nomination,” Washington Post, Oct. 31,
2005, available at [http://www.nexis.com/research/home?key=1130786095&_session
=9eef720a-4a42-11da-9394-00008a0c593e.1.3308238895.296188.%20.0.0&_state=&wc
hp=dGLbVtb-zSkBl&_md5=93f06c0fe1c37fbd5b4c52fe4519bbbb].

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CRS-5
that the full Senate would vote on the nomination on January 20, 2006.16 Judiciary
Committee hearings on the Alito nomination began and concluded as scheduled,
although a targeted January 17 committee vote was postponed until January 24,
2006. A final floor vote was anticipated before President George W. Bush’s January
31, 2006, State of the Union address.17 After Senators Specter and Leahy reportedly
reached agreement on the revised committee schedule over the January 14-16
weekend, Majority Leader Bill Frist announced that “as soon as the Judiciary
Committee reports the nomination, the full Senate will begin debate on Judge Alito
the next day and move swiftly to a fair up-or-down vote.”18 Voting mainly along
party lines (10-8), the Senate Judiciary Committee reported Alito’s nomination to the
full Senate on January 24, which confirmed Alito (58-42) on January 31, 2006.
Measuring the Pace of Supreme Court Appointments
For many Supreme Court appointments, the timing of individual events is
determined by the decisions of various key players — by sitting Justices planning to
leave the Court; by the President, who selects nominees to fill Court vacancies; and
by Senate committee and party leaders, who respectively schedule committee and
floor action on Supreme Court nominations. First, Justices who retire or resign from
the Court must decide whether to provide the President with advance notice of that
decision. For example, Justice Harry A. Blackmun told President William J. Clinton
of his decision to retire in 1994, more than four months before the decision became
public on April 6 of that year.19 Justice O’Connor, on the other hand, did not appear
to have given President George W. Bush any advance notice when she resigned on
July 1, 2005. Also, the mode of presidential notification varies. While President
Clinton learned of Justice Blackmun’s plans to retire through an informal
conversation, Justice O’Connor apparently notified President Bush of her decision
through a formal letter.
Once the President chooses a nominee, he alerts the Senate — by public
announcement as well as by formal transmission of a written nomination to the
Senate. Frequently, the President will announce and formally nominate his Supreme
Court choice on the same day, or take both actions within a few days of each other.
Less commonly, Presidents announce their intention to nominate a candidate, then
make the official nomination a week or more later. The most extreme case of the
16 See “Senate Judiciary Will Begin Alito Hearings Jan. 9, Vote Jan. 17; Floor Vote Set Jan.
20, “ Daily Report for Executives, Nov. 4, 2005, available at [http://ippubs.bna.com/ip/
BNA/DER.NSF/9311bd429c19a79485256b57005ace13/819c3d1e4ca734da852570af001
0aeaf?OpenDocument]]. For a transcript of Senators Specter and Leahy’s remarks, see
[http://www.cq.com/display.do?docid=1948157].
17 Amy Goldstein, “Senate Panel’s Vote on Alito Delayed Until Next Week,” Washington
Post, Jan. 17, 2006, p. A3.
18 For a copy of Senator Frist’s Jan. 16, 2006, press release, see
[http://frist.senate.gov/index.cfm?FuseAction=PressReleases.Detail&PressRelease_id=2
221&Month=1&Year=2006].
19 U.S. National Archives and Records Administration, Office of the Federal Register,
Public Papers of the Presidents of the United States: William J. Clinton, 1993, vol. 1
(Washington: GPO, 1994), p. 597.

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CRS-6
latter involved President Ronald Reagan in 1981. On July 7 of that year, President
Reagan announced he would send the nomination of Sandra Day O’Connor, then an
Arizona state appeals court judge, to the Senate “upon completion of all the
necessary checks by the Federal Bureau of Investigation.”20 However, it was not until
almost six weeks later, on August 19, that Judge O’Connor was officially
nominated.21 As noted above, after the Senate receives a Supreme Court nomination,
the Judiciary Committee normally holds hearings, followed by final committee
action, and consideration before the full chamber.
Official and Unofficial Timetables. The measurement of how long the
President and the Senate take to execute their official duties surrounding Supreme
Court nominations necessarily focuses on official dates of action taken. The most
important of these action dates include those on which (1) an outgoing Justice
officially informs the President of the intention to step down from the Court (or,
alternatively, the date on which a Court seat is vacated due to the death of a Justice),
(2) a President formally nominates someone to the Court, the Senate receives the
President’s nomination, and the nomination is referred to the Senate Judiciary
Committee (almost always all on the same date),22 (3) the Senate Judiciary
Committee holds hearings on the nomination, (4) the committee votes on the
nomination, and (5) the Senate votes on whether to confirm, or chooses to take no
action.
In addition to these dates, however, the President and the Senate usually
consider Supreme Court nominations outside official timetables. Just as the
President can begin considering a new nominee as soon as he knows a vacancy will
arise, the Senate can begin preparing to consider a nominee as soon as the President
announces his choice, even if the receipt of the formal nomination is still days or
weeks away. Fundamentally, nominations and confirmations to the Supreme Court
involve both formal and informal decisions. While formal decisions are easily
accessible in historical records, informal decisions — sparsely mentioned in the
formal record, or not mentioned at all — might, in many cases, provide better insight
into how long the process truly takes.
Objectives of This Report. This report explores the speed of presidential
and Senate decision-making surrounding nominations to the Supreme Court from
1900 to the present. During this period, there were a total of 60 vacancies and 66
nominees to the Court.23 The analysis concentrates on the period 1900-2006 for two
20 U.S. National Archives and Records Administration, Office of the Federal Register,
Public Papers of the Presidents of the United States: Ronald Reagan, 1981 (Washington:
GPO, 1982), p. 596.
21 U. S. Congress, Senate, Journal of the Executive Proceedings of the Senate of the United
States of America, 97th Cong., 1st sess., Aug. 19, 1981 (Washington: GPO, 1982), p. 644.
22 Although these three events usually occur on the same day, a nomination sometimes, on
rare occasions, is received by the Senate on a day after it was signed by the President, or is
referred to the Judiciary Committee on a day after its receipt by the Senate.
23 For an analysis of all unsuccessful Supreme Court nominees, see CRS Report RL31171,
(continued...)

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CRS-7
primary reasons: (1) relevant historical data for this period are much more readily
available and reliable than for earlier Court appointments,24 and (2) public
confirmation hearings for Supreme Court nominations before the Senate Judiciary
Committee — an important phase in the Supreme Court appointment process, and
one of particular interest to this report — were unheard of before the 20th century.25
Although research on Supreme Court nominations often focuses on either
presidential or Senate decision-making, this analysis considers the time both
institutions take to make decisions about, and act on, nominees. The report also takes
a unique approach in discussing — as well as can be determined — how long
Presidents actually take to decide who their nominees will be, and how long the
Senate actually takes to act on nominations. For example, rather than starting the
nomination clock with the official notification of the President of a forthcoming
vacancy (e.g., the receipt of a formal retirement letter), this analysis focuses on when
the President first learned of the vacancy (e.g., a private conversation with the
outgoing Justice). Likewise, rather than starting the confirmation clock with the
transmission the official nomination to the Senate, this analysis focuses on when the
Senate became aware of the President’s selection ( e.g., by a public announcement
by the President).
In many cases, establishing precisely when a President knew that he would have
the opportunity to make a Supreme Court nomination is impossible. Such
information might never have been recorded or known by anyone except the
President and his inner circle. However, historical research reveals several instances
when a President had advance knowledge of an impending vacancy, well before the
public announcement of a Justice’s intention to leave the Court. Data sources used
to determine when Presidents first knew of vacancies included historical newspapers,
official documents such as public presidential papers (which contain Justices’
retirement letters to various Presidents), and CRS consultations with presidential
23 (...continued)
Supreme Court Nominations Not Confirmed, 1789-August 2006, by Henry B. Hogue. In
addition to the unsuccessful nominations listed in that report for the 1900-2006 period, the
present report includes Judge Douglas H. Ginsburg as a an unsuccessful “nominee” since
one part of the report’s focus is on presidential announcements of nominees. President
Reagan announced his intention to nominate Judge Ginsburg in 1987, but Ginsburg
withdrew his name from consideration before being officially nominated. The Ginsburg
case is briefly discussed later in this report.
24 This particularly is the case for coverage of Supreme Court appointments in on-line full-
text historical newspapers, where coverage, as might be expected, typically is found to be
less comprehensive regarding the procedures of Supreme Court appointments farther back
into the 19th century.
25 The earliest Supreme Court confirmation hearings held in open session were those in 1916
for the nomination of Louis D. Brandeis to be an Associate Justice. See CRS Report
RL31989, Supreme Court Appointment Process: Roles of the President, Judiciary
Committee, and Senate, by Denis Steven Rutkus. (Hereafter cited as CRS Report
RL31989.)

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CRS-8
libraries.26 Dates cited throughout this report and in Tables 1-3, at the end of the
report, are based on that research.
How Supreme Court Vacancies Occur
The need for a new appointment to the Court arises when a Justice position
becomes vacant, due to death, retirement, or resignation, or when a Justice announces
his intention to retire or resign. If the vacated seat is that of the Chief Justice, the
President, if he chooses, may nominate a sitting Associate Justice to be Chief, thus
setting the stage for the creation of an Associate Justice vacancy as well. Vacancies
on the Court also will occur if Justices resign to receive new government
appointments or to seek new government positions. When a nomination fails in the
Senate, the President must select a new nominee (unless the President chooses to re-
nominate his first choice).
Death of a Sitting Justice. Supreme Court Justices receive what may be
lifetime appointments, “good Behaviour” being the only constitutionally specified
requirement for continued service.27 Lifetime tenure, interesting work, and the
prestige of the office result in Justices often choosing to serve as long as possible.
Historically, a number of Justices have died in office. Most recently, Chief Justice
William H. Rehnquist died on September 3, 2005, after battling thyroid cancer for
almost a year. Death in office was common on the Court during the first half of the
20th century — 14 of 34 vacancies between 1900-1950. In fact, all five Court
vacancies occurring between 1946 and 1954 were due to death of a sitting Justice
(see Table 1). Of the 23 vacancies since 1954, though, no Justice had died while still
on the Court until Chief Justice Rehnquist in 2005.
Retirement or Resignation of a Sitting Justice. Since 1954, retirement
has been by far the most common way in which Justices have left the bench (19 of
23 vacancies occurring after 1954 resulted from retirements). Resignation (i.e.,
leaving the bench before becoming eligible for retirement compensation) is rare.28
26 CRS Knowledge Services Group Information Research Specialist Dana Ely, Karen Anson
(Franklin D. Roosevelt Library), Valoise Armstrong (Eisenhower Library), Joshua Cochran
(Ford Library), Jennifer Evans (Nixon Presidential Materials), Sharon Kelly (Kennedy
Library), Matthew Schaefer (Hoover Library), Randy Sowell (Truman Library), Jennifer
Sternaman (Reagan Library), Deborah Wheeler (George Bush Library), and Adam C.
Bergfeld (Clinton Library) provided consultations on this portion of the project.
27 U.S. Constitution, Article III, Section 1.
28 Under 28 U.S.C. §371, Supreme Court Justices, like other Article III (tenure “during good
Behaviour”) federal judges, may retire, and be entitled to receive retirement compensation,
in one of two ways — either by taking “senior status” or by “retiring from office.”
Beginning at age 65, they are entitled to receive retirement compensation, if having served
a minimum 10 years as an Article III judge, their age and overall Article III judicial
experience totals 80 years. (Hence, under this “Rule of 80,” a Justice of age 65 must have
served 15 years to become eligible for retirement compensation; a Justice of age 66, 14
years; a Justice of age 67, 13 years; etc.) Judges who take senior status retire from regular
active service but retain their judicial office and the salary of the office, subject to annual
(continued...)

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CRS-9
In recent history, two Justices have resigned from the Court. Justice Arthur Goldberg
resigned in 1965 to assume the post of U.S. Ambassador to the United Nations.29
Justice Abe Fortas resigned in 1969 after protracted criticism over controversial
consulting work while on the bench and a failed nomination to be elevated from
Associate Justice to Chief Justice.30 When Justices retire or resign, the President is
usually notified by formal letter. As noted previously, there is evidence in a few
cases that a President informally learned of a forthcoming retirement in advance.
Pursuant to a law enacted in 1939, a Justice (or any other federal judge
receiving lifetime appointment) may also retire if “unable because of permanent
disability to perform the duties of his office,” by furnishing the President a certificate
of disability.31 Prior to 1939, specific legislation from Congress was required to
provide retirement benefits to a Justice departing the Court because of disability who
otherwise would be ineligible for such benefits, due to insufficient age and length of
service. In such circumstances in 1910, for instance, Congress took legislative
action granting a pension to Justice William H. Moody. As the Washington Post
reported at the time, although illness had kept Justice Moody from the bench for
“almost a year,” he was not yet eligible for retirement.32
Nomination of a Sitting Justice to Another Position. When a Chief
Justice vacancy arises, the President may choose to nominate a sitting Associate
Justice for the Court’s top post. If the Chief Justice nominee is confirmed, he or she
must, to assume the new position, resign as Associate Justice, requiring a new
nominee from the President to fill the newly vacated Associate Justice seat.
However, this scenario is relatively rare. During the 1900-2006 period, Presidents
attempted to elevate Associate Justices to Chief Justice four times, with the Senate
28 (...continued)
certification of their having performed certain judicial or administrative duties in the
preceding year. Judges who retire from office completely relinquish their judicial office
with the right to a frozen lifetime annuity equal to the salary of the office at the time of
retirement. In contrast, a Justice’s resignation entails voluntarily relinquishing his or her
judicial office without meeting the age and service requirements of the Rule of 80 (and thus
being ineligible to receive retirement compensation). See U.S. Administrative Office of the
United States Courts, Senior Status and Retirement for Article III Judges, Apr. 1999 (Judges
Information Series, No. 4), pp. vii-viii.
29 Carroll Kilpatrick, “Goldberg is Named to Stevenson Post,” Washington Post, July 21,
1965, p. A1.
30 On the controversies surrounding Justice Fortas’s nomination and resignation, see
Artemus Ward, Deciding to Leave: The Politics of Retirement from the United States
Supreme Court (Albany: State University of New York Press, 2003), pp. 171-175; and
Philip Warden and Aldo Beckman, “Fortas Agrees to Quit, Nixon Aide Says,” Chicago
Tribune, May 15, 1969, p. 7.
31 The law provides that a Justice retiring under these provisions shall receive for the
remainder of his lifetime “the salary he is receiving at the date of retirement” or, if his
service was less than ten years, one-half of that salary. Act of August 5, 1939, ch. 433, 53
Stat. 1204-1205; 28 U.S.C. §372(a).
32 “Moody Will Retire,” Washington Post, June 15, 1910, p. 1.

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CRS-10
confirming three nominees. Most recently, in 1986, President Ronald Reagan
nominated then-Associate Justice William H. Rehnquist to be Chief Justice.33
Presidents may also nominate sitting Justices to other political posts, which (if
accepted) require resignation from the Court. Between 1900 and 2006, three Justices
resigned to pursue other formal public service. In 1916, Justice Charles Evans
Hughes resigned to pursue the Republican nomination for President.34 Justice James
F. Byrnes resigned on October 3, 1942, becoming Director of Economic Stability for
President Franklin D. Roosevelt.35 As noted previously, Justice Arthur Goldberg
resigned in 1965 to become the U.N. Ambassador.
Controversial, Withdrawn, and Rejected Nominations. When any
Court nomination (whether for an Associate or Chief Justice seat) fails in the Senate,
the President may either re-submit the nomination or choose another candidate to fill
the bench. The entire process thus begins anew. Withdrawals and rejections can
greatly increase the amount of time taken to confirm Justices to the Court.
Controversial nominees who are eventually confirmed also usually take more time
to consider. The late 1960s and early 1970s were one of the most tumultuous periods
of nominations and rejections in the Court’s history. On May 14, 1969, Justice Abe
Fortas resigned from the bench. Fortas had been embroiled in a scandal surrounding
his consulting income, and failed to win confirmation as Chief Justice when
President Johnson nominated him to the seat in 1968.36 Previously, on October 14,
1968, President Johnson had withdrawn the Fortas nomination as well as the
nomination of Homer Thornberry to fill the vacancy that would have been created by
Fortas’s elevation. The Senate rejected President Richard M. Nixon’s first two
nominees to the Fortas seat — Clement F. Haynsworth, Jr. and G. Harrold
Carswell.37 President Nixon’s third choice, Harry A. Blackmun, was not confirmed
until May 12, 1970 — almost a year after Fortas’s resignation.
Data Presentation
Table 1 (at the end of this report) lists dates for the following events regarding
each nomination to the Supreme Court since 1900: (1) when the actual or
33 The other Associate Justices nominated for Chief Justice during the period were: Edward
D. White (1910), Harlan F. Stone (1941), and Abe Fortas (1968). As noted previously,
Justice Fortas’s nomination failed to receive Senate confirmation.
34 “Hughes, With Words That Ring, Obeys Call to Lead Republicans,” Washington Post,
June 11, 1916, p. 1.
35 Associated Press, “Byrnes Resigns From Bench in Letter to President,” New York Times,
Oct. 4, 1942, p. 45.
36 On the controversies surrounding Justice Fortas’s nomination and resignation, see Ward,
Deciding to Leave, pp. 171-175; and Philip Warden and Aldo Beckman, “Fortas Agrees to
Quit, Nixon Aide Says,” Chicago Tribune, May 15, 1969, p. 7.
37 Haynsworth and Carswell were both rejected due to Senate doubts about their personal
views and professional qualifications. For a summary of these and other cases of rejected
Supreme Court nominees, see CRS Report RL31171, Supreme Court Nominations Not
Confirmed, 1789-August 2006.

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CRS-11
prospective vacancy apparently became known to the President, (2) when the
President announced the nominee, (3) when the Senate Judiciary Committee held its
first hearing on the nominee, (4) when final committee action took place, and (5)
when final Senate action took place. Table 2 presents the number of days elapsed
for six related time intervals: (1) from when the President apparently learned of the
actual or prospective vacancy to the his announcement of a new nominee, (2) from
the nomination announcement to the first Judiciary Committee hearing, (3) from the
first hearing to the committee’s final action, (4) from the committee’s final action to
the Senate’s final action, (5) from nomination announcement to final Senate action
(duration of total Senate action), and (6) from the vacancy starting date (when the
President apparently first became aware of the opportunity to make a nomination) to
final Senate action. Table 3 provides summary statistics for the number of days
elapsed during each of these intervals, for all nominations from 1900 until 2006, and
for two periods within those dates — 1900-1980 and 1981-2006.38 As discussed later
in this report, those periods were chosen because the data indicate a sharp difference
in the pace of most nominations before and after 1980.
Date of Actual or Prospective Vacancy. As noted previously, it is often
difficult or impossible to determine the specific date that a President first knew he
would have the opportunity to name a new Justice to the Supreme Court. The
President always has the constitutional obligation to make nominations to the Court
when vacancies arise, and is certainly aware of the possibility that vacancies could
arise at any time. However, the “Actual or Prospective Vacancy Became Known to
President” columns in Tables 1 and 2 focus on documented, specific instances when
the President knew he had, or soon would have, the opportunity to name a new
Justice to the Court.39 These dates are based on extensive research about when the
Justice’s impending departure (or death) was made public, and whether the President
had advance knowledge of the vacancy before it became public. In cases in which
research revealed no public evidence that the President had advance notice (or in
which the data are inconclusive), the date of the first public account of the vacancy
marks the beginning of the process (the “When” column in Tables 1 and 2).40
38 In Table 3, the median amount of time from vacancy to final Senate action within each
time period does not necessarily equal the sum of the medians for each stage in the
nomination-and-confirmation process. Likewise, the median lengths of time for all Senate
actions (i.e., from nomination announcement to final Senate action) within each time period
do not equal the sum of the medians for each stage. The median identifies the mid-point for
individual sets of observations. Because each stage of the process can have a different
number of observations, and because the data are also not a “normal” (i.e., “bell-shaped”)
distribution, the sum of the medians for individual stages generally is not equal to the
median for the entire period. For more information, see chapter 4 in Ya-lun Chou,
Statistical Analysis for Business and Economics (New York: Elsevier, 1989).
39 In Tables 1 and 2, actual vacancies are those that already have been announced or
occurred (i.e., a sitting Justice announces a retirement date or dies). Prospective vacancies,
for the purposes of this report, are not merely speculative. They require firm notice, either
through notification from a sitting Justice or major media accounts, that a Justice will leave
the Court imminently, even if an exact date is not specified.
40 This report, it should be re-emphasized, bases the starting point at when Presidents
(continued...)

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CRS-12
For example, Justice Sandra Day O’Connor announced her retirement, pending
confirmation of a successor, on July 1, 2005. There is no evidence that President
George W. Bush definitely knew that O’Connor would retire until her announcement.
Therefore, July 1, 2005, is used as the starting point for what became the John G.
Roberts Associate Justice nomination.41 On the other hand, although Chief Justice
Warren Burger’s retirement letter to Ronald Reagan was not released until June 17,
1986, President Reagan’s public papers reveal that Burger informed the President of
his decision to retire on May 27, 1986.42 Therefore, May 27, 1986, is used as the
starting point for what became the William H. Rehnquist elevation to Chief Justice.
Notes throughout Tables 1 and 2 provide information on historical context.
Announcement-of-Nominee Date. Unless otherwise noted, the
“President’s Announcement-of-Nominee” date in Table 1 is the day when the
President announced his nomination to the public or released the text of his
nomination letter (whichever came first). This date is significant because it marks
the Senate’s first opportunity to begin considering the nomination, even if informally.
There are a few cases, explained by table notes, in which Presidents announced their
decisions less formally, but still publicly. For example, President Harry S. Truman
casually told reporters during a July 28, 1949, press conference that he had offered
an Associate Justice nomination to then-Attorney General Thomas C. Clark, even
though Clark had not yet accepted the nomination.43 As discussed previously, in
some cases, the announcement date differs by days or even weeks from the date the
nomination was formally submitted to the Senate.
Use of Medians to Summarize Intervals. Table 2 provides the duration
of each major interval in the process of nominating and considering Supreme Court
40 (...continued)
apparently learned of actual or prospective Court vacancies. These dates are based on
published information or information obtained from presidential archives. Readers should
be alerted, as a caveat, that there might well have been instances, unreported at the time as
well as still unknown to present-day scholars, in which various Presidents privately were
alerted of upcoming Court vacancies or had reasons to believe that vacancies were imminent
in advance of the starting dates listed in this report. To the extent that such instances are
unaccounted for, the full extent of time during which such Presidents were aware of
prospective Court vacancies and were able to consider future Court candidates before
publicly announcing their choices, is under-measured in this report.
41 As noted elsewhere in this report, President George W. Bush withdrew Roberts’s
nomination as Associate Justice on Sept. 5, 2005.
42 President Reagan had a private conversation with Chief Justice Burger on May 27, 1986,
when Burger alerted the President to his impending retirement (“Remarks on the
Resignation of Supreme Court Chief Justice Warren E. Burger and the Nominations of
William H. Rehnquist To Be Chief Justice and Antonin Scalia To Be an Associate Justice,”
U.S. National Archives and Records Administration, Office of the Federal Register, Public
Papers of the Presidents of the United States: Ronald Reagan, 1986, vol. 2 (Washington:
GPO, 1989) p. 781).
43 President Truman did not announce that Clark had accepted the nomination until Aug. 1,
1949 (Edward T. Folliard, “Clark Accepts High Court Proffer,” Washington Post, Aug. 2,
1949), p. 1.

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CRS-13
Justices.44 Table 3 provides the median number of days for each major interval in
the process. The median is the middle number in a set of observations (in this case,
the number of days involved in each stage of considering Supreme Court
nominations). The median is generally the preferred measure of central tendency in
social science research.45 As statistician William H. Greene notes, “Loosely
speaking, the median corresponds more closely than the mean to the middle of a
distribution [group of numbers]. It is unaffected by extreme values.”46 In other
words, the median represents the best example of the “average” case, regardless of
extremely short or long individual confirmations.
However, in describing the speed of the Supreme Court nomination-and-
confirmation process, even median values should be considered carefully. Each
nomination is different, and political context and historical factors can have a major
impact on when various events occur. Several factors affecting individual
nominations to the Court are discussed later in this report.
The Duration of the Nomination-and-Confirmation Process
During the entire period covered by this report (1900-2006), the President and
the Senate have each taken varying amounts of time to act on Supreme Court
nominations and confirmations. As Table 3 shows, from 1900-2006, Presidents took
a median of 28 days after a vacancy occurred to announce their nominees, compared
with a median of 22 days for final Senate action once the nomination was announced.
The entire process, from actual or prospective vacancy to final Senate action, lasted
a median of 76 days from 1900-2006.47
However, the amount of time involved in each stage of the nomination-and-
confirmation process varies widely when individual cases are examined. Some
44 When calculating durations, the date on which the final event occurs is not counted as a
full day. For example, if committee hearings began on July 12 and the committee took its
final action on July 13, the duration is one day, not two. For cases in which durations are
less than one day (i.e., the committee final action and final Senate vote took place on the
same day), the duration is listed as 0 days.
45 Although the arithmetic mean (the sum of all observations divided by the number of
observations) is the true “average” number, it has the disadvantage of being skewed by
extremely high or low values. For an introduction to median versus mean and arguments
surrounding when each should be used, see chapter 3 in Alan Agresti and Barbara Finlay,
Statistical Methods for the Social Sciences, 3rd ed. (Upper Saddle River, NJ: Prentice Hall,
1997).
46 William H. Greene, Econometric Analysis, 5th ed. (Upper Saddle River, NJ: Prentice Hall,
2003, p. 847).
47 Due to updated data in Tables 1 and 2, some of the summary statistics here and in Table
3 have changed from previous versions of this report. This version of the report does not
include, when calculating the interval for total Senate action (nomination announcement to
final Senate action), cases in which nominations lingered in the Senate, but for which the
Senate took no final vote (e.g., the nomination was withdrawn, recommitted, etc.). If the
Judiciary Committee held hearings or held a final vote, those dates are included in median
calculations.

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CRS-14
Supreme Court nominations are unusually fast, coming immediately on the heels a
sitting Justice’s departure from the bench. In these cases, the President almost
certainly knew in advance of the outgoing Justice’s intention to retire yet delayed
announcement of the retirement to coincide with announcing a new nominee. For
example, on May 27, 1986, President Reagan simultaneously announced the
retirement of Chief Justice Warren Burger, the elevation of William H. Rehnquist to
Chief Justice, and the nomination of Antonin Scalia to assume the Associate Justice
seat being vacated by Justice Rehnquist.48 On the other hand, some nomination
decisions can take months — at least to become public. For example, although
Justice Harold H. Burton submitted his retirement letter to President Dwight D.
Eisenhower on October 6, 1958, Eisenhower did not publicly announce Potter
Stewart’s nomination until January 17, 1959 — 103 days after announcing Justice
Burton’s retirement. The entire interval between Burton’s announced retirement and
Stewart’s confirmation lasted 211 days, the bulk of the interval due to a long
congressional recess.49
Changes Since 1981. The data indicate that the median decision-making
intervals surrounding Supreme Court nominations have changed substantially since
1981.50 When comparing Supreme Court nominations from 1900-1980 with those
from 1981-2006, five patterns stand out. First, after apparently learning of vacancies,
Presidents have typically been quicker to announce nominees since 1981 than in the
previous 80 years. As shown in Figure 1 (and Table 3), from 1900-1980, Presidents
48 As previously noted, although Chief Justice Burger, by letter on June 17, 1986, officially
notified President Reagan of his desire to retire, Burger privately informed Reagan of his
plans on May 27, 1986 (“Remarks on the Resignation of Supreme Court Chief Justice
Warren E. Burger and the Nominations of William H. Rehnquist To Be Chief Justice and
Antonin Scalia To Be an Associate Justice,” U.S. National Archives and Records
Administration, Office of the Federal Register, Public Papers of the Presidents of the United
States: Ronald Reagan, 1986, vol. 2, p. 781).
49 Context provides important caveats, as is always the case when exploring median
decision-making surrounding Supreme Court nominations. President Eisenhower recess-
appointed Justice Stewart because Congress was not in session on Oct. 6, 1958, when
Justice Burton announced his retirement. The 85th Congress had adjourned sine die on Aug.
24, 1958. The President nominated Potter Stewart to the Court on Jan. 17, 1959, after
Congress had reconvened for the first session of the 86th Congress. Therefore, although the
interval between the starting date (Oct. 6, 1958, as shown in Table 1) and nomination date
(Jan. 17, 1959) is 103 days, and the entire interval from the starting date until final Senate
action (May 5, 1959) is 211 days, the President’s actual decision-making timetable could
also be classified as eight days, or the interval between Burton’s retirement announcement
(Oct. 6, 1958) and Eisenhower’s recess appointment of Justice Stewart (Oct. 14, 1958).
Both intervals are used to calculate the median elapsed time from vacancy to nomination
announcement. Nonetheless, the long intervals have a minimal impact on computing the
median durations between stages in the process because the median is less sensitive than the
mean to extremely high or low values.
50 For an analysis of the decision-making speed surrounding Supreme Court nominations
between 1962-1987, see archived CRS Report 87-576, The Speed With Which Action Has
Been Taken on Supreme Court Nominations in the Last 25 Years, by Denis Steve Rutkus
(available from author).

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CRS-15
took a median of 34 days to announce their nominees after apparently learning of
vacancies, compared with only 12 days from 1981-2006.
Second, and perhaps most notably, the median interval between the President’s
announcement of his nominee and the first Judiciary Committee hearing was
substantially longer from 1981-2006 than from 1900-1980. As shown in Figure 1
(and Table 3), this period more than tripled — from 12.5 days during the 1900-1980
period to 52 days from 1981-2006. Again, however, context is important. Even
before hearings begin, the Senate can be actively working on the nomination. For
example, prior to the start of John G. Roberts’s hearings (and even before his
nomination was submitted to the Senate), Senators met privately with Judge Roberts,
and some pressed the White House to release records from Roberts’s Department of
Justice service.51 The Harriet Miers and Samuel Alito nominations followed similar
patterns.
Figure 1. Speed in Days of Intervals Surrounding Supreme
Court Nominations and Confirmations
113
120
100
1900-1980
84
80
1981-2006
59
52
60
34
40
17
12
12.5
14
20
6
7
3
0
President Learned
Nomination
First Hearing to
Final Committee
Nomination
President Learned
of Vacancy to
Announcement to
Committee Final
Action to Final
Announcement to
of Vacancy to
Nomination
First Hearing
Action
Senate Action
Final Senate
Final Senate
Announcement
Action
Action
Source: Computations based on data compiled by the CRS authors. See Table 3 for rounding
information.
Third, committee and floor action from 1981-2006 also took slightly longer than
prior to 1981. From 1981-2006, the Judiciary Committee took a median of 14 days
to reach a decision after starting hearings, while the interval between final committee
action and final Senate action took seven days (compared with six and three days
respectively from 1900-1980).
Fourth, as shown in Figure 1 (and Table 3), total Senate activity (the interval
between the President’s announcement of the nominee and final Senate action)
increased from a median of 17 days (1900-1980) to 84 days (1981-2006).
51 See, for example, Charles Babington, “Access to Records May Be a Sticking Point;
Democrats Push for Prompt Review,” Washington Post, July 28, 2005, p. A6; and Mike
Allen and Jo Becker, “A Clash Over Roberts Documents; Justice Department Balks at
Senate Democrats’ Demands,” Washington Post, Aug. 7, 2005, p. A4.

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CRS-16
Finally, the entire nomination-and-confirmation process took substantially
longer after 1980 than during the previous 80 years. The median duration for the
entire process (from when the President apparently became aware of a vacancy until
the Senate’s final action on the nomination) was almost twice as long from 1981-
2006 than during 1900-1980 (113 days versus 59 days, respectively).
Factors Influencing the Speed of the Process
Some elements of the decision-making process surrounding the naming and the
confirmation or rejection of Supreme Court nominees are known only to Presidents,
nominees, and a few select advisors. Other elements are more obvious. Each
nomination has its own political context, making each nomination somewhat
different. However, several factors appear to be relatively constant in affecting the
speed of Supreme Court nominations and Senate decisions.
How the Vacancy Occurs. How quickly the President announces his
nominee and how quickly the Senate considers that nomination can depend on how
the vacancy occurred. When Justices die unexpectedly, Presidents can be eager to
bring the Court back to full strength as soon as possible. On July 19, 1949, for
example, Justice Frank Murphy unexpectedly died of a heart attack after a brief
illness.52 President Harry S. Truman announced his nomination of Thomas C. Clark
at a press conference nine days later, on July 28.53 The Senate also considered the
nomination quickly, beginning hearings on August 9. Clark’s entire nomination-and-
confirmation process lasted just 30 days. A few months later, Sherman Minton was
confirmed even faster — in 24 days — after the death of Justice Wiley B. Rutledge.
Nonetheless, sudden death does not guarantee that either the President or the Senate
will make nomination-and-confirmation decisions quickly. For example, when
Justice Rufus W. Peckham died unexpectedly on October 24, 1909, President
William Howard Taft waited 50 days to announce a nominee. Once Taft announced
his choice, the Senate confirmed Horace H. Lurton seven days later.
Retirements and resignations are often expected, allowing the President time to
prepare for his choice even before an official announcement that a sitting Justice will
step down. For example, at the time of his retirement, Justice William O. Douglas’s
health had been so poor and abilities allegedly in such decline that seven of his fellow
Justices voted on October 17, 1975, to “effectively strip Douglas of his power” and
excluded the aging Justice from deliberations.54 By the time Justice Douglas
officially wrote to President Gerald R. Ford on November 12, 1975, announcing his
retirement, the President was prepared to act quickly. He announced the nomination
of John Paul Stevens just 16 days later. Congress, too, acted quickly, confirming
Stevens 19 days later, on December 17, 1975.
52 For a profile of Murphy and his death, see Chicago Daily Tribune, “Justice Murphy Dies
of Heart Attack at 59,” Chicago Daily Tribune, July 20, 1949, p. 2.
53 President Truman did not announce that Clark had accepted the nomination until Aug. 1,
1949 (Edward T. Folliard, “Clark Accepts High Court Proffer, Washington Post, Aug. 2,
1949, p. 1).
54 Justice Byron R. White disagreed with the decision. See Ward, Deciding to Leave, p. 187.

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CRS-17
Sometimes, though, even when retirements or resignations come with advance
notice, the process moves slowly. For example, Justice Harry A. Blackmun privately
told President William J. Clinton around January 1, 1994, that he was planning to
leave the Court. Soon afterward, the White House staff began quietly considering
replacements.55 However, President Clinton did not publicly announce Justice
Blackmun’s retirement until April 6, did not publicly announce Judge Stephen G.
Breyer’s nomination until May 13, and did not formally nominate Breyer until May
17.56 The Judiciary Committee began hearings 60 days after the nomination was
announced, and the entire process surrounding Breyer’s nomination lasted 209 days.
However, decisions affecting the nomination were apparently being made even
before Blackmun’s retirement became public knowledge.
The Senate’s Schedule. Congress’s schedule, especially whether the Senate
is in session at all, plays an important role in how long Supreme Court nominations
take to reach a conclusion. In the early 1900s, several vacancies arose during
summer recess or election years when Congress was away from the Capitol. In 1910,
for example, Congress adjourned on June 25 and did not return until December 5 —
a break of more than five months.57 In the interim, Chief Justice Melville W. Fuller
died of a heart attack on July 4.58 As press coverage noted at the time, although
potential nominees were immediately considered, President William Howard Taft
waited to formally submit a nomination to the Senate until Congress reconvened.59
On December 12, five days after the Senate reconvened, President Taft announced
and formally submitted to the Senate his nomination of former Senator Edward D.
White of Louisiana to be Chief Justice. That same day, without referring the
nomination to the Judiciary Committee, the Senate quickly confirmed Senator White.
Three times during the 1950s, President Eisenhower resorted to recess
appointments when Justices died or announced their retirement after Congress had
already adjourned for the year.60 In each case, President Eisenhower formally
submitted the nomination after the Senate convened the following January. Of the
five persons whom he nominated to the Court, three first received recess
appointments and served as Justices before being confirmed — Earl Warren (as Chief
Justice) in 1953, William Brennan in 1956, and Potter Stewart in 1958. President
Eisenhower’s recess appointments, however, generated controversy, prompting the
55 Tony Mauro, “How Blackmun Hid Retirement Plans,” New Jersey Law Journal, Apr. 25,
1994, p. 18.
56 U.S. National Archives and Records Administration, Office of the Federal Register,
Public Papers of the Presidents of the United States: William J. Clinton, 1994, vol. 1
(Washington: GPO, 1995), p. 597.
57 U.S. Congress, Joint Committee on Printing, 2003-2004 Official Congressional Directory:
108th Congress (Washington: GPO), p. 517.
58 “Justice Fuller Dies Suddenly,” Washington Post, July 5, 1910, p. 1.
59 In addition to waiting for the Senate to return, President Taft reportedly considered more
than 200 nominees, a far more thorough process than the media predicted after Fuller’s
death (ibid. and “White Heads Bench,” Washington Post, Dec. 13, 1910, p. 1).
60 The discussion of recess appointments in the following two paragraphs is adapted from
CRS Report RL31989.

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CRS-18
Senate in 1960, voting closely along party lines, to pass a resolution expressing
opposition to Supreme Court recess appointments in the future.61
President Eisenhower’s actions were the most recent recess appointments to the
Supreme Court, and recess appointments to the lower federal courts also have
become relatively rare since the late 1960s. While a President’s constitutional power
to make judicial recess appointments was upheld by a federal court in 1985,62 such
appointments, when they do occur, may cause controversy, in large part because they
bypass the Senate and its “advice and consent” role. Because of the criticisms of
judicial recess appointments in recent decades, the long passage of time since the last
Supreme Court recess appointment, and the relatively short duration of contemporary
Senate recesses (which arguably undercuts the need for recess appointments to the
Court), a President in the 21st century might be expected to make a recess
appointment to the Supreme Court only under the most unusual of circumstances.63
61 Adopted by the Senate on Aug. 29, 1960, by a 48-37 vote, S.Res. 334 expressed the sense
of the Senate that recess appointments to the Supreme Court “should not be made, except
under unusual circumstances and for the purpose of preventing or ending a demonstrable
breakdown in the administration of the Court’s business.” Proponents of the resolution
contended, among other things, that judicial independence would be affected if Supreme
Court recess appointees, during the probationary period of their appointment, took positions
to please the President (in order not to have the President withdraw their nominations) or
to please the Senate (in order to gain confirmation of their nominations). It also was argued
that Senate investigation of nominations of these recess appointees was made difficult by
the oath preventing sitting Justices from testifying about matters pending before the Court.
Opponents, however, said, among other things, that the resolution was an attempt to restrict
the President’s constitutional recess appointment powers and that recess appointments were
sometimes called for in order to keep the Court at full strength and to prevent evenly split
rulings by its members. See “Opposition to Recess Appointments to the Supreme Court,”
debate in the Senate on S.Res. 334, Congressional Record, vol. 106, Aug. 29, 1960, pp.
18130-18145. See also CRS Report RL31112, Recess Appointments of Federal Judges, by
Louis Fisher and CRS Report RL32971, Judicial Recess Appointments: A Legal Overview
by T.J. Halstead. For an overview of judicial recess appointments during the George W.
Bush presidency (none of which were to the Supreme Court), see CRS Report RL33310,
Recess Appointments Made by President George W. Bush, January 20, 2001-September 5,
2006, by Henry B. Hogue and Maureen Bearden.
62 U.S. v. Woodley, 751 F.2d 1008 (9th Cir. 1985).
63 A notable, relatively recent instance in which the possibility of a recess appointment to
the Supreme Court was raised occurred on July 28, 1987, when Senate Minority Leader
Robert Dole observed that President Reagan had the constitutional prerogative to recess
appoint U.S. appellate court judge Robert H. Bork to the Court. Earlier that month Judge
Bork had been nominated to the Court, and at the time of Senator Dole’s statement, the chair
of Senate Judiciary Committee, Sen. Joseph R. Biden, Jr. had scheduled confirmation
hearings to begin on September 15. With various Republican Senators accusing Senate
Democrats of delaying the Bork hearings, Senator Dole offered as “food for thought” the
possibility of President Reagan recess appointing Judge Bork during Congress’s August
recess. See Michael Fumento, “Reagan Has Power To Seat Bork While Senate Stalls:
Dole,” Washington Times, July 28, 1987, p. A3; also, Edward Walsh, “Reagan’s Power To
Make Recess Appointment Is Noted,” Washington Post, July 28, 1987, p. A8. Judge Bork,
however, did not receive a recess appointment and, as a Supreme Court nominee, was
(continued...)

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CRS-19
Today, Congress’s availability is less of an obstacle to speedy consideration of
nominations than in the past. Given Congress’s increasingly year-round schedule,
extended decision-making is more often the result of waiting for presidential
decisions, background investigations of nominees, or preparations for Judiciary
Committee hearings.
Committee Involvement and Institutional Customs. Today, it would
be highly unusual for the Judiciary Committee not to hold Supreme Court
confirmation hearings lasting at least a few days. In the past, however, the Judiciary
Committee often handled Supreme Court nominations without holding hearings at
all. As Table 1 shows, of the 22 nominees to the Court from 1900 to 1937, only
three had Judiciary Committee hearings (Louis D. Brandeis in 1916, Harlan F. Stone
in 1925, and John J. Parker in 1930 (whose nomination was eventually rejected)).
In contrast, of the 41 nominees after 1937, only three did not have hearings.64
Nominees did not begin regularly testifying at their own hearings until John M.
Harlan did so in 1955.65
When the Judiciary Committee holds hearings, Senate floor consideration can
be pushed back sometimes by weeks or even months. Controversial nominees often
spur protracted hearings. For example, the Judiciary Committee spent 19 days
considering Justice Louis D. Brandeis’s nomination in 1916, and the interval between
the start of hearings and final committee action lasted 105 days. The final Senate
vote came eight days later. More recently, the Judiciary Committee, after learning
of President Ronald Reagan’s selection of Robert H. Bork, took 76 days to hold its
first day of hearings on the nomination, and then 21 more days to conclude action on
the nomination.
Senate custom plays an especially large role when sitting or former Senators are
nominated to the Court. The Senate has almost always considered their colleagues’s
nominations to the Court within days of receiving the nomination, often without
committee hearings or floor debate.66 For example, although President Taft waited
five months to nominate Edward D. White (a former Senator from Louisiana) for
Chief Justice, the Senate confirmed the nomination with no debate in less than one
63 (...continued)
rejected by the Senate in a 58-42 vote on Oct. 23, 1987.
64 This number does not include instances such as the John G. Roberts Associate Justice
nomination, in which the Judiciary Committee did not have the opportunity to hold hearings.
Hearings before the Judiciary Committee were dispensed with for three nominees: Frank
Murphy in 1939, James F. Byrnes in 1941, and Harold H. Burton in 1945, all of whom had
prior service in high public office. Murphy had previously served as Governor of Michigan
and U.S. Attorney General. Byrnes was a sitting Senator from South Carolina when
nominated to the Court. Harold H. Burton was a Senator from Ohio. (Biographical
information obtained from the Federal Judicial Center’s Federal Judges Biographical
Database, available at [http://www.fjc.gov/public/home.nsf/hisj]).
65 See CRS Report RL31989.
66 For additional background information on Senators giving current or former colleagues
deference when nominated to the Court, see Rutkus, Supreme Court Appointments Process,
pp. 17-18.

---

CRS-20
hour.67 Since 1900, three sitting Senators — Hugo L. Black of Alabama (1937),
James F. Byrnes of South Carolina (1941), and Harold H. Burton of Ohio (1945) —
have been nominated to the Court, and all were quickly confirmed.68 Senators
George Sutherland of Utah (1922) and Sherman Minton of Indiana (1949) were
nominated to the Court after having concluded their Senate service. Sutherland was
confirmed on the same day on which President Warren Harding announced the
nomination, and Minton was confirmed in 19 days.
The decades since 1945 have yet to test again the Senate tradition of bypassing
the Judiciary Committee when the Supreme Court nominee is a sitting U.S. Senator;
no President since then has nominated a sitting Senator. The last former Senator to
be nominated to the Court, in 1949, was Judge Sherman Minton of Indiana. (After
defeat for re-election to the Senate in 1940, he had been appointed by President
Franklin D. Roosevelt to a federal appellate court judgeship.) In a break with
tradition, the Supreme Court nomination of former Senator Minton was referred to
the Judiciary Committee, and Senate confirmation followed the day after the
committee approved the nomination.
Controversial Nominations. As noted previously, withdrawn, rejected, or
controversial nominations can substantially lengthen the process. In these cases,
although Presidents often name nominees fairly quickly, consideration of the
nominations can be drawn out in the Senate. During Judge Robert H. Bork’s
controversial nomination, for example, Senate consideration of Bork lasted more than
a month, from the first Judiciary Committee hearing on September 15, 1987, until the
Senate’s floor vote to reject the nomination on October 23, 1987. The entire process
— from President Reagan’s announcement of his intention to nominate Bork to
Senate rejection — took 119 days.
Controversy can also delay confirmation of nominees who are ultimately
successful. Despite a relatively quick nomination-and-confirmation process of 42
days in late 1924 and early 1925 for then-Attorney General Harlan F. Stone, his
nomination was temporarily set back when it was recommitted to the Senate
Judiciary Committee, apparently because of Stone’s investigation as Attorney
General of Senator Burton K. Wheeler.69 More recently, although Judge Clarence
Thomas narrowly won confirmation in 1991, nominating and confirming him took
110 days, including a second round of Judiciary Committee hearings surrounding law
professor Anita Hill’s allegations against Thomas of sexual harassment.
67 “White Heads Bench,” Washington Post, Dec. 13, 1910, p. 1.
68 Senators Burton and Byrnes’s nominations were not referred to the Judiciary Committee.
Sen. Black’s nomination was referred to the committee, which recommended his
confirmation, although by a divided 13-4 vote.
69 On Stone’s testimony before the Judiciary Committee regarding the investigation, see
Albert W. Fox, “Stone Tells Senate Committee He Assumes Full Responsibility For
Pressing New Wheeler Case,” Washington Post, Jan. 29, 1925, p. 1.

---

CRS-21
Discussion and Conclusions
Understanding how long the previous Supreme Court nomination-and-
confirmation process has taken, and what factors affected that schedule, can provide
useful perspective on presidential decision-making and the Senate’s preparations for
future nominations. While Presidents and supporters of nominees want Justices
confirmed quickly, some Senators will continue to emphasize their right to consider
nominees carefully and their responsibility to hold sufficient hearings. Against that
political backdrop, this report demonstrates that the length of time required to
nominate and confirm or reject a nominee varies widely. Even median durations
must be interpreted cautiously. The context surrounding each nomination is
particularly important in understanding how long the process takes.
Given the advanced ages of some members of the current Court, more vacancies
in the near future are widely anticipated. Should those vacancies occur unexpectedly,
such as with a sudden retirement or death, the Court could well be operating without
a full bench — making the timing of nominations and confirmations even more
pressing. In such a scenario, the Senate would likely be under intense pressure to
confirm a successor quickly. This report indicates that, from 1900-1980, the
President’s portion of the process took longer than the Senate’s. Since 1981, though,
there has been a substantial increase in the median duration between the President’s
announcement of a nominee and the start of Judiciary Committee hearings. As a
result, the Senate’s portion of the process has taken longer than the President’s.
Prior to 1981, lengthy nomination-and-confirmation processes usually occurred
because either the Senate was out of session when a vacancy on the Court arose, or
the nomination was controversial. In recent decades, by contrast, slower decision-
making has taken place during an era when Congress is in session longer than during
the early 20th century.
Since 1981, the nomination-and-confirmation process has lasted a median of
113 days — almost twice as long as the 59-day median from 1900-1980. Although
the data in Tables 1-3 provide a median measure of the process, political context is
an essential backdrop for understanding the numbers. The President and the Senate
share decision-making responsibilities for placing new Justices on the Court.
Ultimately, the choices each institution makes determine how long nominations and
confirmations take.
One possible explanation for the paradox of slower decisions despite more time
in session is that, as some critics on both sides of the aisle contend, Supreme Court
nominations have become battlegrounds for larger political debates.70 Another
70 On increasingly controversial judicial nominations, see chapter 4 in Walter F. Murphy,
C. Herman Pritchett, and Lee Epstein, Courts, Judges, & Politics: An Introduction to the
Judicial Process, 5th ed. (Boston: McGraw Hill, 2002); [Thomas O. Sargentich, Paul D.
Carrington, Barbara E. Reed, Charles Gardner Geyh, and Erwin Chemerinsky], Uncertain
Justice: Politics and America’s Courts: The Reports of the Task Forces of Citizens for
Independent Courts (New York: The Century Foundation, 2000); and Mark Silverstein,
(continued...)

---

CRS-22
possibility is that the Senate is considering nominations more carefully than in the
past, and therefore taking more time to make decisions about nominees. Similarly,
the Senate might be using longer decision-making and scrutiny of nominees as a
method of counterbalancing presidential power, especially when Senators believe that
the President has chosen an unqualified nominee.
Some early 20th century appointments to the Supreme Court were confirmed
within days of a vacancy occurring. More recent nominations and confirmations, by
contrast, typically have taken several weeks or months. How and when a vacancy
occurs, the Senate’s schedule, Judiciary Committee involvement, institutional
customs, and whether or not the nomination is controversial, all affect the speed with
which the President nominates, and the Senate passes judgment, on prospective
Justices.
70 (...continued)
Judicious Choices: The New Politics of Supreme Court Confirmations (New York: W.W.
Norton & Company, 1994).

---

CRS-23
Table 1. Major Events in the Supreme Court Nomination-and-Confirmation Process, 1900-2006
Actual or Prospective Vacancy
President’s Announcement of
Apparently Became Known to
Senate Action Dates on Nomination
Nominee
Nominating
Outgoing
President
President
Justice
First
Committee
When
How
Nominee
Date
Senate Final Action
Hearing
Final Action
Theodore
Horace Gray
09/15/1902
Death of
Oliver Wendell
12/02/1902
No record of
12/04/1902
12/04/1902
Roosevelt
outgoing Justice
Holmes
hearing
Theodore
George Shiras,
08/20/1902a
Public reports of
William R.
01/14/1903b
No record of
02/23/1903
02/23/1903
Roosevelt
Jr.
imminent
Day
hearing
retirement
Theodore
Henry B. Brown
03/08/1906c
Outgoing Justice
William H.
11/07/1906
No record of
12/10/1906
12/12/1906
Roosevelt
notified President
Moody
hearing
of intention to
retired
William Howard
Rufus W.
10/24/1909
Death of
Horace H.
12/13/1909e
No record of
12/16/1909
12/20/1909
Taft
Peckham
outgoing Justice
Lurton
hearing
William Howard
David J. Brewer
3/28/1910
Death of
Charles Evans
4/25/1910
No record of
05/02/1910
05/02/1910
Taft
outgoing Justice
Hughes
hearing
William Howard
Melville W.
07/04/1910
Death of
Edward D.
12/12/1910
Nomination was not referred
12/12/1910
Taft
Fuller, Chief
outgoing Chief
White
to Judiciary Committee
Justice
Justice

---

CRS-24
Actual or Prospective Vacancy
President’s Announcement of
Apparently Became Known to
Senate Action Dates on Nomination
Nominee
Nominating
Outgoing
President
President
Justice
First
Committee
When
How
Nominee
Date
Senate Final Action
Hearing
Final Action
William Howard
Edward D.
12/12/1910
Justice Edward
Willis Van
12/12/1910
No record of
12/15/1910
12/15/1910
Taft
White
D. White
Devanter
hearing
nomination to be
Chief Justice
William Howard
William H.
06/15/1910f
Congressional
Joseph R.
12/12/1910
No record of
12/15/1910
12/15/1910
Taft
Moody
action
Lamar
hearing
authorizing
retirement
William Howard
John Marshall
10/14/1911
Death of
Mahlon Pitney
02/19/1912
No record of
03/04/1912
03/13/1912
Taft
Harlan
outgoing Justice
hearing
Woodrow Wilson
Horace H.
07/12/1914
Death of
James C.
08/19/1914g
No record of
08/24/1914
08/29/1914
Lurton
outgoing Justice
McReynolds
hearing
Woodrow Wilson
Joseph R.
01/02/1916
Death of
Louis D.
01/28/1916
02/09/1916
05/24/1916
06/01/1916
Lamar
outgoing Justice
Brandeis
Woodrow Wilson
Charles Evans
06/10/1916h
Resignation letter
John H. Clarke
07/14/1916
No record of
07/24/1916
07/24/1916
Hughes
submitted to
hearing
President

---

CRS-25
Actual or Prospective Vacancy
President’s Announcement of
Apparently Became Known to
Senate Action Dates on Nomination
Nominee
Nominating
Outgoing
President
President
Justice
First
Committee
When
How
Nominee
Date
Senate Final Action
Hearing
Final Action
Warren Harding
Edward D.
05/19/1921
Death of
William
06/30/1921
Nomination was not referred
06/30/1921
White
outgoing Justice
Howard Taft
to Judiciary Committee
Warren Harding
John H. Clarke
09/05/1922
Resignation letter
George
09/05/1922
Nomination was not referred
09/05/1922
submitted to
Sutherland
to Judiciary Committee
President
Warren Harding
William R. Day
09/05/1922i
Public reports of
Pierce Butler
11/23/1922
No record of
11/28/1922
Placed on Executive
imminent
hearing
Calendar on
retirement
11/28/1922, with no
record of further
actionj
12/04/1922
Lack of action on
Pierce Butler
12/05/1922
No record of
12/18/1922
12/21/1922
first nomination
hearing
of Butler
Warren Harding
Mahlon Pitney
12/16/1922
White House
Edward T.
01/09/1923l
No record of
01/29/1923
01/29/1923
announced
Sanford
hearing
forthcoming
retirementk

---

CRS-26
Actual or Prospective Vacancy
President’s Announcement of
Apparently Became Known to
Senate Action Dates on Nomination
Nominee
Nominating
Outgoing
President
President
Justice
First
Committee
When
How
Nominee
Date
Senate Final Action
Hearing
Final Action
Calvin Coolidge
Joseph
12/25/1924m
Public reports of
Harlan F.
01/05/1925
01/28/1925
01/21/1925
Recommitted
McKenna
forthcoming
Stone
01/26/1925
retirement
02/02/1925
02/05/1925
Herbert Hoover
William
02/03/1930
Retirement letter
Charles Evans
02/03/1930
No record of
02/10/1930
02/13/1930
Howard Taft
submitted to
Hughes
hearing
Chief Justice
President
Herbert Hoover
Edward T.
03/08/1930
Death of
John J. Parker
03/21/1930
04/05/1930
04/21/1930
Rejected 05/07/1930
Sanford
outgoing Justice
Herbert Hoover
Edward T.
05/07/1930
Parker
Owen J.
05/09/1930
No record of
05/19/1930
05/20/1930
Sanford
nomination
Roberts
hearing
rejected by
Senate
Herbert Hoover
Oliver Wendell
01/12/1932
Retirement letter
Benjamin N.
02/15/1932
02/19/1932
02/23/1932
02/24/1932
Holmes, Jr.
submitted to
Cardozo
President
Franklin D.
Willis Van
05/18/1937n
Retirement letter
Hugo L.
08/12/1937
No record of
08/16/1937
08/17/1937
Roosevelt
Devanter
submitted to
Black
hearing
President

---

CRS-27
Actual or Prospective Vacancy
President’s Announcement of
Apparently Became Known to
Senate Action Dates on Nomination
Nominee
Nominating
Outgoing
President
President
Justice
First
Committee
When
How
Nominee
Date
Senate Final Action
Hearing
Final Action
Franklin D.
George
01/05/1938
Retirement letter
Stanley F.
01/15/1938o
01/20/1938
01/24/1938
01/25/1938
Roosevelt
Sutherland
submitted to
Reed
President
Franklin D.
Benjamin N.
07/09/1938p
Death of
Felix
01/05/1939
01/10/1939
01/16/1939
01/17/1939
Roosevelt
Cardozo
outgoing Justice
Frankfurter
Franklin D.
Louis D.
02/13/1939q
Retirement letter
William O.
03/20/1939
03/24/1939
03/27/1939
04/04/1939
Roosevelt
Brandeis
submitted to
Douglas
President
Franklin D.
Pierce Butler
11/16/1939
Death of
Frank Murphy
01/04/1940
01/11/1940
01/15/1940
01/16/1940
Roosevelt
outgoing Justice
Franklin D.
James Clark
01/22/1941
Outgoing Justice
James F.
06/12/1941
Nomination was not referred
06/12/1941
Roosevelt
McReynolds
notified President
Byrnes
to Judiciary Committee
of intention to
retire r
Franklin D.
Charles Evans
06/02/1941s
Retirement letter
Harlan F.
06/12/1941
06/21/1941
06/23/1941
06/27/1941
Roosevelt
Hughes
submitted to
Stone
Chief Justice
President

---

CRS-28
Actual or Prospective Vacancy
President’s Announcement of
Apparently Became Known to
Senate Action Dates on Nomination
Nominee
Nominating
Outgoing
President
President
Justice
First
Committee
When
How
Nominee
Date
Senate Final Action
Hearing
Final Action
Franklin D.
Harlan F. Stone
06/12/1941
Harlan F. Stone
Robert H.
06/12/1941
06/21/1941
06/30/1941
07/07/1941
Roosevelt
nomination to be
Jackson
Chief Justice
Franklin D.
James F.
10/03/1942t
Byrnes
Wiley B.
01/11/1943
01/22/1943
02/01/1943
02/08/1943
Roosevelt
Byrnes
appointment to
Rutledge
other public
office
Harry S. Truman
Owen J.
06/30/1945u
Retirement letter
Harold H.
09/18/1945
No record of
09/19/1945
09/19/1945
Roberts
submitted to
Burton
hearing
President
Harry S. Truman
Harlan F. Stone
04/22/1946
Death of
Fred M.
06/06/1946
06/14/1946
06/19/1946
06/20/1946
Chief Justice
outgoing Chief
Vinson
Justice
Harry S. Truman
Frank Murphy
07/19/1949
Death of
Thomas C.
07/28/1949
08/09/1949
08/12/1949
08/18/1949
outgoing Justice
Clark
Harry S. Truman
Wiley B.
09/10/1949
Death of
Sherman
09/15/1949
09/27/1949
10/03/1949
10/04/1949
Rutledge
outgoing Justice
Minton

---

CRS-29
Actual or Prospective Vacancy
President’s Announcement of
Apparently Became Known to
Senate Action Dates on Nomination
Nominee
Nominating
Outgoing
President
President
Justice
First
Committee
When
How
Nominee
Date
Senate Final Action
Hearing
Final Action
Dwight D.
Fred M.
09/08/1953 Death
of
Earl Warren
Recess appointment, 10/02/1953
Eisenhower
Vinson
outgoing Chief
Chief Justice
Justice
01/11/1954
02/02/1954
02/24/1954
03/01/1954
Dwight D.
Robert H.
10/09/1954
Death of
John Marshall
11/08/1954v
No record of hearing,
Eisenhower
Jackson
outgoing Justice
Harlan II
committee vote, or Senate vote
01/05/1955
Lack of action on
John Marshall
01/10/1955
02/24/1955
03/10/1955
03/16/1955
(Congress
first nomination
Harlan II
reconvenes)
of Harlan
nomination
Dwight D.
Sherman
09/07/1956
Retirement letter
William J.
Recess appointment, 10/15/1956
Eisenhower
Minton
submitted to
Brennan
President
01/14/1957
02/26/1957
03/04/1957
03/19/1957
Dwight D.
Stanley F.
01/31/1957
Press conference
Charles E.
03/02/1957
03/18/1957
03/18/1957
03/19/1957
Eisenhower
Reed
held by Reed
Whittaker
announcing
retirementw
Dwight D.
Harold H.
10/06/1958
Retirement letter
Potter Stewart
Recess Appointment, 10/14/1958
Eisenhower
Burton
submitted to
President
01/17/1959
04/09/1959
04/20/1959
05/05/1959

---

CRS-30
Actual or Prospective Vacancy
President’s Announcement of
Apparently Became Known to
Senate Action Dates on Nomination
Nominee
Nominating
Outgoing
President
President
Justice
First
Committee
When
How
Nominee
Date
Senate Final Action
Hearing
Final Action
John F. Kennedy
Charles E.
03/28/1962
Retirement letter
Byron R.
03/30/1962y
04/11/1962
04/11/1962
04/11/1962
Whittaker
received by
White
Presidentx
John F. Kennedy
Felix
08/28/1962z
Retirement letter
Arthur J.
08/29/1962
09/11/1962
09/25/1962
09/25/1962
Frankfurter
submitted to
Goldberg
President
Lyndon B.
Arthur J.
07/20/1965
Goldberg
Abe Fortas
07/28/1965bb
08/05/1965
08/10/1965
08/11/1965
Johnson
Goldberg
appointment to
other public
officeaa
Lyndon B.
Thomas C.
02/28/1967
Outgoing Justice
Thurgood
06/13/1967dd
07/13/1967
08/03/1967
08/30/1967
Johnson
Clark
notified President
Marshall
of intention to
retirecc
Lyndon B.
Earl Warren
06/13/1968ee
Retirement letter
Abe Fortas
06/26/1968
07/11/1968
09/17/1968
10/01/1968
Johnson
Chief Justice
submitted to
(Cloture
President
motion
rejected)

---

CRS-31
Actual or Prospective Vacancy
President’s Announcement of
Apparently Became Known to
Senate Action Dates on Nomination
Nominee
Nominating
Outgoing
President
President
Justice
First
Committee
When
How
Nominee
Date
Senate Final Action
Hearing
Final Action
Lyndon B.
Abe Fortas
06/26/1968ff
Fortas
Homer
06/26/1968
07/11/1968
No record of
Nomination
Johnson
nomination to be
Thornberry
committee
withdrawn by
Chief Justice
vote
President,
10/04/1968
Richard M.
Earl Warren
01/20/1969gg
Fortas Chief
Warren E.
05/21/1969
06/03/1969
06/03/1969
06/09/1969
Nixon
Chief Justice
Justice
Burger
nomination
withdrawn by
President Johnson
(10/04/1968)

---

CRS-32
Actual or Prospective Vacancy
President’s Announcement of
Apparently Became Known to
Senate Action Dates on Nomination
Nominee
Nominating
Outgoing
President
President
Justice
First
Committee
When
How
Nominee
Date
Senate Final Action
Hearing
Final Action
Richard M.
Abe Fortas
05/14/1969
Resignation
Clement F.
08/18/1969hh
09/16/1969
10/09/1969
11/21/1969
Nixon
letter submitted
Haynsworth,
(Rejected)
to President
Jr.
11/21/1969
Haynsworth
G. Harrold
01/19/1970
01/27/1970
02/16/1970
04/08/1970
nomination
Carswell
(Rejected)
rejected by
Senate
04/08/1970
Carswell
Harry A.
04/14/1970
04/29/1970
05/06/1970
05/12/1970
nomination
Blackmun
rejected by
Senate
Richard M.
Hugo L. Black
09/17/1971
Retirement letter
Lewis F.
10/21/1971
11/03/1971
11/23/1971
12/06/1971
Nixon
submitted to
Powell, Jr.
President
Richard M.
John Marshall
09/23/1971
Retirement letter
William H.
10/21/1971
11/03/1971
11/23/1971
12/10/1971
Nixon
Harlan II
submitted to
Rehnquist
President

---

CRS-33
Actual or Prospective Vacancy
President’s Announcement of
Apparently Became Known to
Senate Action Dates on Nomination
Nominee
Nominating
Outgoing
President
President
Justice
First
Committee
When
How
Nominee
Date
Senate Final Action
Hearing
Final Action
Gerald R. Ford
William O.
11/12/1975ii
Retirement letter
John Paul
11/28/1975jj
12/08/1975
12/11/1975
12/17/1975
Douglas
submitted to
Stevens
President
Ronald Reagan
Potter Stewart
05/18/1981kk
Retirement letter
Sandra Day
07/07/1981ll
09/09/1981
09/15/1981
09/21/1981
submitted to
O’Connor
President
Ronald Reagan
Warren E.
05/27/1986mm
Chief Justice
William H.
06/17/1986
07/29/1986
08/14/1986
09/17/1986
Burger
privately
Rehnquist
Chief Justice
alerted
President of
intention to
retire
Ronald Reagan
William H.
05/27/1986nn
Rehnquist
Antonin
06/17/1986
08/05/1986
08/14/1986
09/17/1986
Rehnquist
nomination by
Scalia
Reagan to be
Chief Justice

---

CRS-34
Actual or Prospective Vacancy
President’s Announcement of
Apparently Became Known to
Senate Action Dates on Nomination
Nominee
Nominating
Outgoing
President
President
Justice
First
Committee
When
How
Nominee
Date
Senate Final Action
Hearing
Final Action
Ronald Reagan
Lewis F.
06/26/1987oo
Press conference
Robert H.
07/01/1987
09/15/1987
10/06/1987
10/23/1987
Powell, Jr.
held by Powell
Bork
(Rejected)
announcing
retirement
10/23/1987
Bork nomination
Douglas H.
10/29/1987
Ginsburg withdrew (11/07/1987)
rejected by
Ginsburg
before official nominationpp
Senate
11/07/1987
Ginsburg
Anthony M.
11/11/1987
12/14/1987
01/27/1988
02/03/1988
withdrawal
Kennedy
George H.W.
William J.
07/20/1990
Retirement letter
David H.
07/23/1990qq
09/13/1990
09/27/1990
10/02/1990
Bush
Brennan
submitted to
Souter
President
George H.W.
Thurgood
06/27/1991
Retirement letter
Clarence
07/01/1991
09/10/1991
09/27/1991
10/15/1991
Bush
Marshall
submitted to
Thomas
President
William J.
Byron R.
03/19/1993rr
Retirement letter
Ruth Bader
06/14/1993ss
07/20/1993
07/29/1993
08/03/1993
Clinton
White
submitted to
Ginsburg
President

---

CRS-35
Actual or Prospective Vacancy
President’s Announcement of
Apparently Became Known to
Senate Action Dates on Nomination
Nominee
Nominating
Outgoing
President
President
Justice
First
Committee
When
How
Nominee
Date
Senate Final Action
Hearing
Final Action
William J.
Harry A.
01/01/1994tt
Justice privately
Stephen G.
05/13/1994
07/12/1994
07/19/1994
07/29/1994
Clinton
Blackmun
alerted President
Breyer
of forthcoming
retirement
George W. Bush
Sandra Day
07/01/2005
Retirement letter
John G.
07/19/2005
Nomination was withdrawn by President (09/05/2005)
O’Connor
submitted to
Roberts
before the start of Judiciary Committee hearings; re-
President
nominated as Chief Justice (09/05/2005)
09/05/2005
Announcement of
Harriet E.
10/03/2005
Roberts
Miers
Miers withdrew as nominee (10/27/2005) before the
nomination
start of Judiciary Committee hearings
withdrawal and
re-submission by
President
10/27/2005
Announcement of
Samuel A.
10/31/2005
01/09/2006
01/24/2006
01/31/2006
Miers withdrawal
Alito, Jr.
George W. Bush
William H.
09/03/2005
Death of
John G.
09/05/2005
09/12/2005
09/22/2005
09/29/2005
Rehnquist
outgoing Justice
Roberts
Sources: As described in the text, this research relied on historical newspapers, official presidential papers, and CRS correspondence with Presidential Libraries. Ward’s Deciding
to Leave was especially useful in compiling data on the reasons why Justices left the bench. Additional source information appears in the table notes below.

---

CRS-36
a. It is unclear when President Theodore Roosevelt learned of Justice Shiras’s intention to retire. However, Washington Post coverage suggests that Shiras’s forthcoming departure
was well known in Washington, DC by at least Aug. 20, 1902 (“Knox May Not Want It: Belief that He Would Decline Justice Shiras’s Position,” Washington Post, Aug. 20,
1902, p. 1).
b. President Roosevelt did not formally announce Day’s nomination until Feb. 19, 1903. However, the Washington Post reported as early as Jan. 14, 1903 that President Roosevelt
had already offered Day the nomination, after William Howard Taft declined the offer in favor of continuing his position as Civil Governor of the Philippine Islands (“Declined
by Taft,” Washington Post, Jan. 14, 1903, p. 1).
c. According to the Washington Post, Justice Brown notified the President, on Mar. 8, 1906, that he wished to retire (“To Leave the Bench: Justice Brown Will Retire in the Fall,”
Washington Post, Mar. 8, 1906, p. 3).
d. It is unclear from the historical record whether the President learned of Justice Brown’s desire to retire by letter, personal conversation, etc.
e. Despite the delay between Justice Peckham’s death and President William Howard Taft’s nomination of Horace H. Lurton, President Taft, in nominating Lurton, was reportedly
“adhering to his original purpose to promote Judge Lurton, whom he has known for years, and with whom he served on the bench,” (“Taft Names Lurton,” Washington Post,
Dec. 14, 1909, p. 3).
f. Justice Moody did not actually depart the Court until Nov. 20, 1910 (Ward, Deciding to Leave, p. 5). However, “Illness of a serious nature has kept Justice Moody from his duties
in the Supreme Court for almost a year. There have been occasional rumors of retirement, but Senator Lodge [on June 15, 1910] presented the real harbinger of that action, in
the form of a bill extending the statute relating to retirement from the Supreme Court to cover the case of Mr. Moody” (“Moody Will Retire,” Washington Post, June 15, 1910,
p. 1).
g. Although Justice McReynolds’s nomination was not announced until Aug. 20, 1914, the Washington Post reported on Aug. 19 that President Woodrow Wilson had “definitely
decided” on McReynolds (“Picks M’Reynolds,” Washington Post, Aug. 19, 1914, p. 1), thereby informally alerting Congress to the President’s choice.
h. On June 10, 1916, Justice Hughes resigned to pursue the 1916 Republican presidential nomination (“Hughes, With Words That Ring, Obeys Call to Lead Republicans,” Washington
Post, June 11, 1916, p. 1). Although historical media research does not indicate that President Wilson knew for certain that Justice Hughes would resign, media reports had hinted
at a Hughes resignation throughout the spring of 1916.
i. Day did not leave the Court until Nov. 13, 1922. However, the Washington Post reported that Day’s consideration of retirement was mentioned at a White House briefing on Sept.
5, 1922 (“Justice Day May Leave the Bench,” Washington Post, Sept. 6, 1922, p. 1).
j. After the Senate took no final action on Butler’s nomination by the end of the third session of the 67th Congress on Dec. 4, 1922, President Warren Harding re-nominated Butler on
Dec. 5, 1922. See “Fight Over Butler’s Nomination Forecast,” Washington Post, Dec. 6, 1922, p. 12; and “Fight Against Butler Opened by Shipstead,” Washington Post, Dec.
9, 1922, p. 2.
k. Although Justice Pitney’s resignation was effective as of Dec. 31, 1922, the White House announced Pitney’s forthcoming departure on Dec. 16, 1922 ( “Resigns,” Chicago Daily
Tribune, Dec. 17, 1922, p. 17).
l. President Warren Harding did not officially nominate Sanford until Jan. 24, 1923. However, the media reported as early as Jan. 9, 1923, that President Harding intended to nominate
Sanford (“E.T. Sanford Choice for Supreme Court,” Washington Post, Jan. 9, 1923, p. 1).
m. Justice McKenna did not officially retire until Jan. 5, 1925. However, the media reported his imminent retirement on Dec. 25, 1924 (“M’Kenna to Retire Soon as a Justice of the
Supreme Court,” Washington Post, Dec. 25, 1924, p. 2).

---

CRS-37
n. For an account of Justice Van Devanter privately alerting a reporter of his decision to retire on the morning of the announcement, see “News ‘Beat’ Aided by Van Devanter,” New
York Times, May 23, 1937, p. 40.
o. Justice Reed had also been a frontrunner for the 1937 seat that eventually went to Justice Hugo Black. This perhaps explains President Franklin D. Roosevelt’s relatively quick
nomination of Reed, despite what many reporters considered to be a surprise retirement announcement from Sutherland. See Robert C. Albright, “Sutherland, 75, Quits U.S.
Supreme Court,” New York Times, Jan. 6, 1938, p. X1; and Franklyn Waltman, “Stanley F. Reed Named to U.S. Supreme Court.” New York Times, Jan. 16, 1938, p. 1.
p. Although Justice Cardozo had been ill and away from the bench since December 1937 (United Press, “Supreme Court Liberal Succumbs to Heart Ailment in N.Y.,” Washington
Post, July 10, 1938, p. M1), a definite need to nominate a new Justice did not occur until Cardozo’s death on July 9, 1938.
q. Justice Brandeis had been away from the bench for a month, recovering from a heart attack, prior to announcing his retirement (United Press, “Justice Brandeis, Dean of Supreme
Court, Quits,” Los Angeles Times, Feb. 14, 1939, p. 1). Nonetheless, his retirement was considered abrupt, suggesting that President Roosevelt had little advance notice to consider
a successor.
r. It is unclear from the historical record whether the President learned of Justice McReynolds’s desire to retire by letter, personal conversation, etc.
s. Although Chief Justice Hughes’s retirement due to age and poor health had been “rumored some months” prior to submission of his formal retirement letter (Walter Trohan, “Hughes
Retires From Court,” Chicago Daily Tribune, June 3, 1941, p. 1), the definite need for a new nominee did not arise until Hughes announced his retirement.
t. Justice Byrnes resigned at President Roosevelt’s request on Oct. 3, 1942, becoming Director of Economic Stability. Roosevelt was, therefore, aware of an impending vacancy on
the Court prior to the formal resignation, although the precise date is unclear. For a summary of Byrnes’s transition from the Court to his new post, see Associated Press, “Byrnes
Resigns From Bench in Letter to President,” New York Times, Oct. 4, 1942, p. 45.
u. Although President Truman did not announce Justice Roberts’s intention to retire until July 5, 1945 (United Press, “Morganthau and Roberts Resign,” Los Angeles Times, July 6,
1945, p. 1), Justice Roberts’s retirement letter is dated July 30, 1945. Truman received the letter on that date “or soon thereafter” (e-mail communication between CRS Information
Specialist Dana Ely and Truman Library Archivist Randy Sowell, Sept. 2, 2005).
v. The Senate took no final action on the Harlan nomination before the 83rd Congress’s final adjournment on Dec. 2, 1954. President Eisenhower re-nominated Harlan to the Court
on Jan. 10, 1955, five days after the start of the first session of the 84th Congress. Evidence does not suggest that another announcement of the nomination was made.
w. Whether President Eisenhower first learned of Justice Reed’s retirement through the press conference or a letter from Reed is unclear. Contemporary media coverage mentioned
a press conference and a letter to Eisenhower (Edward T. Folliard, “Reed Is Retiring From High Court,” Washington Post, Feb. 1, 1957, p. A1). However, political scientist
Artemus Ward’s account asserts that Reed announced his retirement through a press conference (Ward, Deciding to Leave, pp. 162-163). Regardless, both events occurred on
Jan. 31, 1957. For the Jan. 31 correspondence between Reed and Eisenhower, see “Letter to Stanley Reed Regarding His Retirement From Active Service as An Associate Justice
of the Supreme Court,” U.S. National Archives and Records Administration, Office of the Federal Register, Public Papers of the Presidents of the United States: Dwight D.
Eisenhower, 1957 (Washington: GPO, 1958), pp. 109-110.
x. This information is based on e-mail communication between CRS Information Specialist Dana Ely and Kennedy Library Reference Technician Sharon Kelly, Sept. 14, 2005.
y. According to a press account, President Kennedy’s decision to nominate White “was apparently made just a few hours before the selection was announced Friday night” (on March
30, 1962) (James E. Clayton, “White Was One of Three In Line for High Court,” Washington Post, Apr. 1, p. A1). Given the relatively quick action, however, Kennedy might
have considered White as a Supreme Court candidate in advance of the Mar. 28, 1962, announced vacancy.

---

CRS-38
z. Aug. 28, 1962, is the only definitive date which can be established based on available data, as the earliest point at which President Kennedy learned of Justice Frankfurter’s intention
to retire. However, President Kennedy’s quick nomination of Goldberg, and Justice Frankfurter’s poor health in the weeks leading up to his retirement, suggest that President
Kennedy was considering prospective nominees well before Frankfurter stepped down. Kennedy’s letter to Justice Frankfurter accepting his retirement references a visit the
President paid to Frankfurter to check on his health sometime during the summer of 1962 (U.S. National Archives and Records Administration, Office of the Federal Register,
Public Papers of the Presidents of the United States: John F. Kennedy, 1962, (Washington: GPO, 1963), p. 656). According to Kennedy Library Reference Technician Sharon
Kelly, Kennedy’s office files suggest that correspondence between Frankfurter, Special Assistant for National Security Affairs McGeorge Bundy, and the President would have
alerted Kennedy to Frankfurter’s declining health around May 17, 1962 (e-mail communication between CRS Information Specialist Dana Ely and Kennedy Library Reference
Technician Sharon Kelly, Sept. 14, 2005).
aa. President Lyndon B. Johnson unexpectedly nominated Justice Goldberg to be U.S. Ambassador to the United Nations following the death on July 14, 1965, of the previous
ambassador, Adlai E. Stevenson. See Carroll Kilpatrick, “Goldberg is Named to Stevenson Post,” Washington Post, July 21, 1965, p. A1.
bb. Although Justice Fortas was not nominated until July 28, 1965, President Johnson apparently decided to nominate Fortas long before the Goldberg vacancy, making the gap of
only one week between Goldberg’s resignation and Fortas’s nomination unsurprising. At the press conference announcing Fortas’s nomination, President Johnson said that he
and Fortas had discussed the nomination “on numerous occasions in the 20 months,” (U.S. National Archives and Records Administration, Office of the Federal Register, Public
Papers of the Presidents of the United States: Lyndon B. Johnson, 1966, vol. 2 (Washington: GPO), 1967, p. 798).
cc. Despite the fact that Justice Clark announced his forthcoming retirement on Feb. 28, 1967, historical evidence suggests that Johnson might have prompted Clark’s retirement as
early as Jan. 1967, when the President prepared to nominated Justice Clark’s son, Ramsey, to be Attorney General. “On January 25, 1967, Johnson told Ramsey that he could
only be named the permanent attorney general if his father stepped down from the Court” (Ward, Deciding to Leave, p. 170).
dd. Like the 1965 Fortas nomination, Marshall’s nomination was no surprise, since Johnson was reportedly considering Marshall for appointment to the Court before the formal
nomination. According to a 1967 Washington Post report, “Marshall’s resignation two years ago, at the President’s request, from a lifetime seat on the 2d U.S. Circuit Court
of Appeals to become Solicitor General, had seemed clearly a move to groom him for the Nation’s highest court” (John P. MacKenzie, “LBJ Names Marshall to Court,” June
14], 1967, Washington Post, p. A1).
ee. Although President Johnson did not announce Chief Justice Warren’s retirement until June 26, he received Warren’s retirement letter on June 13, 1968 (U.S. National Archives
and Records Administration, Office of the Federal Register, Public Papers of the Presidents of the United States: Lyndon B. Johnson, 1968-69, vol. 1 (Washington: GPO), 1970,
p. 746).
ff. Although a specific opportunity to name a new Associate Justice did not arise until the Fortas Chief Justice nomination on June 26, 1968, it was reported that “[s]ome Texans at
the Capitol are sure that Mr. Johnson has planned for the last four years to name Thornberry to the Supreme Court before he [Johnson] left office,” (Richard L. Lyons, “Homer
Thornberry: ‘Constructive Liberal,’ Close LBJ friend,” Washington Post, June 27, 1969, p. 1).
gg. Jan. 20, 1969 (the date of Richard M. Nixon’s inauguration), is used as the starting date for the vacancy because it marks the beginning of President Nixon’s official decision-making
powers. After the Abe Fortas Chief Justice nomination failed, President Johnson announced on Oct. 2, 1968, that he would not name another nominee (U.S. National Archives
and Records Administration, Office of the Federal Register, Public Papers of the Presidents of the United States: Lyndon B. Johnson, 1968-69, vol. 2 (Washington: GPO), 1966,
p. 509). Eight days later, Johnson elaborated on his decision. The President wrote that although he would have made another nomination in “ordinary times,” the situation was
extraordinary and that, “Under the circumstances, the foundations of government would be better served by the present Chief Justice [Earl Warren] remaining [in office] until

---

CRS-39
emotionalism subsides, reason and fairness prevail (U.S. National Archives and Records Administration, Office of the Federal Register, Public Papers of the Presidents of the
United States: Lyndon B. Johnson, 1968-69, vol. 2 (Washington: GPO, 1970), p. 1024). On Dec. 3, 1968, Chief Justice Warren informed President-elect Richard M. Nixon that
he was willing to continue serving until a successor was confirmed (“Statement by the Chief Justice,” Dec. 4, 1968, Earl Warren Papers, Manuscript Division, Library of Congress,
Washington, DC). In a May 1969, conversation with reporters, President Nixon offered an unusually detailed discussion of his decision-making process surrounding the Burger
nomination. Nixon reported that he thought “it would not be a proper mark of respect for the Court and for the Chief Justice to have a nomination go down, say, in February
or March, and then have possibly the Senate hearings and the like at a time that the Court was sitting,” and that his target date for a nomination decision was between May 1 and
June 1, 1968 (U.S. National Archives and Records Administration, Office of the Federal Register, Public Papers of the Presidents of the United States: Richard Nixon, 1970,
(Washington: GPO), 1971, p. 390).
hh. Although President Richard M. Nixon waited until Aug. 18, 1969, to nominate Haynsworth, media accounts speculated that Haynsworth would be the nominee at least as early
as Aug. 6. See AP, “Possible High Court Choice Hit,” Washington Post, Aug. 7, 1969, p. B4.
ii. Chief Justice Warren Burger reportedly “hint[ed] at a possible vacancy” on the Court in a letter to President Gerald Ford on Nov. 10, 1975, and offered “factors for [the President]
to consider when appointing a new justice,” (e-mail communication between CRS Information Specialist Dana Ely and Ford Library Archivist Technician Joshua Cochran, Sept.
12, 2005). Justice Douglas’s health had been in question since Dec. 31, 1974, when he suffered a stroke (John P. MacKenzie, “Douglas Retires From Court,” Washington Post,
Nov. 13, 1975, p. A1). However, President Ford would have had relatively little time to consider a replacement Justice since he did not assume the presidency until Aug. 9, 1975,
and a vacancy did not officially arise until Justice Douglas’s Nov. 12, 1975 retirement letter.
jj. During a Nov. 29, 1975, press conference, White House Press Secretary Ron Nessen revealed that the President had decided to nominate, as well as announce his choice of, Stevens
the same day (Spencer Rich, “Ford Picks Chicago Jurist,” Washington Post, Nov. 29, 1975, p. A1). The announcement occurred on Nov. 28, 1975.
kk. Although Justice Stewart’s decision to retire was not made public until June 18, 1981, Stewart delivered a letter, stating his desire to retire, to President Ronald Reagan on May
18, 1981 (U.S. National Archives and Records Administration, Office of the Federal Register, Public Papers of the Presidents of the United States: Ronald Reagan, 1981
(Washington: GPO, 1982), p. 539.
ll. In this case, the distinction between the dates of announcement of the nominee and the formal nomination is particularly important. On July 7, 1981, President Reagan “announced
his intention” to nominate Judge O’Connor upon completion of a required FBI background check (U.S. National Archives and Records Administration, Office of the Federal
Register, Public Papers of the Presidents of the United States: Ronald Reagan, 1981, (Washington: GPO, 1982), p. 597). President Reagan did not formally nominate her until
Aug. 19, 1981, after she had passed the background check.
mm. Although Chief Justice Burger officially notified President Reagan, by letter on June 17, 1986, of his desire to retire, Burger privately informed Reagan of his plans on May 27,
1986 (“Remarks on the Resignation of Supreme Court Chief Justice Warren E. Burger and the Nominations of William H. Rehnquist To Be Chief Justice and Antonin Scalia
To Be an Associate Justice,” U.S. National Archives and Records Administration, Office of the Federal Register, Public Papers of the Presidents of the United States: Ronald
Reagan, 1986, vol. 2 (Washington: GPO, 1989), p. 781).

---

CRS-40
nn. The May 27, 1986, date is used because Chief Justice Burger’s intention to retire (known to President Reagan on May 27) alerted the President of the forthcoming opportunity
to elevate Rehnquist from Associate Justice to Chief Justice, and in turn, of the opportunity to nominate someone to succeed Rehnquist as an Associate Justice.
oo. President Reagan reportedly “had no advance warning of the resignation” (Al Kamen, “Nixon-Appointed Democrat Cites Age, Health,” Washington Post, June 27, 1987, p. A1).
pp. Judge Ginsburg withdrew his name from consideration before being officially nominated, but after President Reagan had announced his intention to nominate Ginsburg. Among
other controversies surrounding the nomination, Ginsburg admitted shortly before withdrawing that he “had smoked marijuana while a Harvard law professor” (Lou Cannon
and Ruth Markus, “Judge Kennedy Likely Choice,” Washington Post, Nov. 9, 1987, p. A6).
qq. President George H. W. Bush stated in a July 23, 1990, press conference nominating Souter that he had not decided on a final nominee until that day (U.S. National Archives and
Records Administration, Office of the Federal Register, Public Papers of the Presidents of the United States: George Bush, 1990, vol. 2 (Washington: GPO, 1992), p. 1051).
rr. On the details of transferring Justice White’s retirement letter to the President beginning on Mar. 18, 1993, see Dennis J. Hutchinson, The Man Who Was Once Whizzer
White: A Portrait of Justice Byron R. White (New York: Free Press , 1998, p. 437) and Ward, Deciding to Leave, p. 183, n. 183. One of Justice White’s former law clerks,
by then working in the White House, delivered the letter on the Mar. 19, 1993.
ss. President William J. Clinton announced Ginsburg’s nomination on June 14, 1993. However, President Clinton noted in his nomination speech that he asked Ginsburg to accept
the nomination on the evening of June 13 (U.S. National Archives and Records Administration, Office of the Federal Register, Public Papers of the Presidents of the United States:
William J. Clinton, 1993, vol. 1 (Washington: GPO, 1994), p. 843).
tt. Jan. 1, 1994 is a slight estimation, since Justice Blackmun reportedly “told President Bill Clinton at Renaissance Weekend over the New Year’s holiday in Hilton Head, S.C., that
this would be his last term (Tony Mauro, “How Blackmun Hid Retirement Plans,” New Jersey Law Journal, Apr. 25, 1994, p. 18. ). Clinton publicly announced Blackmun’s
retirement on April 6, 1994. (U.S. National Archives and Records Administration, Office of the Federal Register, Public Papers of the Presidents of the United States: William
J. Clinton, 1994, vol. 1 (Washington: GPO, 1995), p. 597).

---

CRS-41
Table 2. Duration in Days Between Major Events in the Supreme Court Nomination-and-Confirmation Process, 1900-
2006
Actual or Prospective Vacancy
Apparently Became Known to
Number of days elapsed from...
President
Nominating
Outgoing
Nominee
President
Justice
Vacancy to
Nomination
First
Committee
Nomination
Starting
nomination
announce-
hearing to
final action
announce-
date to final
When
How
announce-
ment to first
committee
to Senate
ment to final
Senate
ment
hearing
final action
action
Senate action
action
Theodore
Horace Gray
09/15/1902
Death of outgoing
Oliver
78
No record of
No record of
0
2

80
Roosevelt
Justice
Wendell
hearing
hearing
Holmes
Theodore
George
08/20/1902a
Public reports of
William R.
147
No record of
No record of
0
40
187
Roosevelt
Shiras, Jr.
imminent
Day
hearing
hearing
retirement
Theodore
Henry B.
03/08/1906b
Outgoing Justice
William H.
244
No record of
No record of
2
35
279
Roosevelt
Brown
notified President
Moody
hearing
hearing
of intention to
retirec
William
Rufus W.
10/24/1909
Death of outgoing
Horace H.
50
No record of
No record of
4
7
59
Howard Taft
Peckham
Justice
Lurton
hearing
hearing

---

CRS-42
Actual or Prospective Vacancy
Apparently Became Known to
Number of days elapsed from...
President
Nominating
Outgoing
Nominee
President
Justice
Vacancy to
Nomination
First
Committee
Nomination
Starting
nomination
announce-
hearing to
final action
announce-
date to final
When
How
announce-
ment to first
committee
to Senate
ment to final
Senate
ment
hearing
final action
action
Senate action
action
William
David J.
03/28/1910
Death of outgoing
Charles
28
No record of
No record of
0
7
35
Howard Taft
Brewer
Justice
Evans
hearing
hearing
Hughes
William
Melville W.
07/04/1910
Death of outgoing
Edward D.
161
Nomination
Nomination
Nom. was
0
161
Howard Taft
Fuller
Chief Justice
White
was not
was not
not referred
referred to
referred to
to Judiciary
Chief Justice
Judiciary
Judiciary
Committee
Committee
Committee
William
Edward D.
12/12/1910
White nomination
Willis Van
0
No record of
No record of
0
3
3
Howard Taft
White
by President to be
Devanter
hearing
hearing
Chief Justice
William
William H.
06/15/1910d
Congressional
Joseph R.
180
No record of
No record of
0
3
183
Howard Taft
Moody
action authorizing
Lamar
hearing
hearing
retirement

---

CRS-43
Actual or Prospective Vacancy
Apparently Became Known to
Number of days elapsed from...
President
Nominating
Outgoing
Nominee
President
Justice
Vacancy to
Nomination
First
Committee
Nomination
Starting
nomination
announce-
hearing to
final action
announce-
date to final
When
How
announce-
ment to first
committee
to Senate
ment to final
Senate
ment
hearing
final action
action
Senate action
action
William
John
10/14/1911
Death of outgoing
Mahlon
128
No record of
No record of
9
23
151
Howard Taft
Marshall
Justice
Pitney
hearing
hearing
Harlan
Woodrow
Horace H.
07/12/1914
Death of outgoing
James C.
38
No record of
No record of
5
10
48
Wilson
Lurton
Justice
McReynolds
hearing
hearing
Woodrow
Joseph R.
01/02/1916
Death of outgoing
Louis D.
26
12
105
8
125
151
Wilson
Lamar
Justice
Brandeis
Woodrow
Charles
06/10/1916e
Resignation to
John H.
34
No record of
No record of
0
10
44
Wilson
Evans
pursue political
Clarke
hearing
hearing
Hughes
office

---

CRS-44
Actual or Prospective Vacancy
Apparently Became Known to
Number of days elapsed from...
President
Nominating
Outgoing
Nominee
President
Justice
Vacancy to
Nomination
First
Committee
Nomination
Starting
nomination
announce-
hearing to
final action
announce-
date to final
When
How
announce-
ment to first
committee
to Senate
ment to final
Senate
ment
hearing
final action
action
Senate action
action
Warren
Edward D.
05/19/1921
Death of outgoing
William
42
Nomination
Nomination
Nomination
0
42
Harding
White
Justice
Howard Taft
was not
was not
was not
referred to
referred to
referred to
Judiciary
Judiciary
Judiciary
Committee
Committee
Committee
Warren
John H.
09/05/1922
Resignation letter
George
0
Nomination
Nomination
Nomination
0
0
Harding
Clarke
submitted to
Sutherland
was not
was not
was not
President
referred to
referred to
referred to
Judiciary
Judiciary
Judiciary
Committee
Committee
Committee
Warren
William R.
09/05/1922f
Public reports of
Pierce Butler
79
No record of
No record of
No record
No Senate
No final
Harding
Day
imminent
hearing
hearing
of hearing
action
action
retirement
12/04/1922
Lack of action on
Pierce Butler
1
No record of
No record of
3
16
4
first nomination
hearing
hearing
of Butler

---

CRS-45
Actual or Prospective Vacancy
Apparently Became Known to
Number of days elapsed from...
President
Nominating
Outgoing
Nominee
President
Justice
Vacancy to
Nomination
First
Committee
Nomination
Starting
nomination
announce-
hearing to
final action
announce-
date to final
When
How
announce-
ment to first
committee
to Senate
ment to final
Senate
ment
hearing
final action
action
Senate action
action
Warren
Mahlon
12/16/1922
White House
Edward T.
24
No record of
No record of
0
20
44
Harding
Pitney
announced
Sanford
hearing
hearing
forthcoming
retirementg
Calvin
Joseph
12/25/1924h
Public reports of
Harlan F.
11
23
5h
3
31
42
Coolidge
McKenna
imminent
Stone
retirement
Herbert Hoover
William
02/03/1930
Retirement letter
Charles
0
No record of
No record of
3
10
10
Howard Taft
submitted to
Evans
hearing
hearing
President
Hughes
Herbert Hoover
Edward T.
03/08/1930
Death of outgoing
John J.
13
15
16
16
47
60
Sanford
Justice
Parker
Herbert Hoover
Edward T.
05/07/1930
Parker
Owen J.
2
No record of
No record of
1
11
13
Sanford
nomination
Roberts
hearing
hearing
rejected by Senate

---

CRS-46
Actual or Prospective Vacancy
Apparently Became Known to
Number of days elapsed from...
President
Nominating
Outgoing
Nominee
President
Justice
Vacancy to
Nomination
First
Committee
Nomination
Starting
nomination
announce-
hearing to
final action
announce-
date to final
When
How
announce-
ment to first
committee
to Senate
ment to final
Senate
ment
hearing
final action
action
Senate action
action
Herbert Hoover
Oliver
01/12/1932
Outgoing Justice
Benjamin N.
34
4
4
1
9
43
Wendell
notified President
Cardozo
Holmes, Jr.
of intention to
retire
Franklin D.
Willis Van
05/18/1937i
Retirement letter
Hugo L.
86
No record of
No record of
1
5
91
Roosevelt
Devanter
submitted to
Black
hearing
hearing
President
Franklin D.
George
01/05/1938
Retirement letter
Stanley F.
10
5
4
1
10
20
Roosevelt
Sutherland
submitted to
Reed
President
Franklin D.
Benjamin N.
07/09/1938j
Death of outgoing
Felix
180
5
6
1
12
192
Roosevelt
Cardozo
Justice
Frankfurter
Franklin D.
Louis D.
02/13/1939k
Retirement letter
William O.
35
4
3
8
15
50
Roosevelt
Brandeis
submitted to
Douglas
President
Franklin D.
Pierce Butler
11/16/1939
Death of outgoing
Frank
49
7
4
1
12
61
Roosevelt
Justice
Murphy

---

CRS-47
Actual or Prospective Vacancy
Apparently Became Known to
Number of days elapsed from...
President
Nominating
Outgoing
Nominee
President
Justice
Vacancy to
Nomination
First
Committee
Nomination
Starting
nomination
announce-
hearing to
final action
announce-
date to final
When
How
announce-
ment to first
committee
to Senate
ment to final
Senate
ment
hearing
final action
action
Senate action
action
Franklin D.
James C.
01/22/1941
Outgoing Justice
James F.
141
Nomination
Nomination
Nomination
0
141
Roosevelt
McReynolds
notified President
Byrnes
was not
was not
was not
of intention to
referred to
referred to
referred to
retirel
Judiciary
Judiciary
Judiciary
Committee
Committee
Committee
Franklin D.
Charles
06/02/1941m
Retirement letter
Harlan F.
10
9
2
4
15
25
Roosevelt
Evans
submitted to
Stone
Hughes
President
Chief Justice
Franklin D.
Harlan F.
06/12/1941
Stone nomination
Robert H.
0
9
9
7
25
25
Roosevelt
Stone
by President to be
Jackson
Chief Justice
Franklin D.
James F.
10/03/1942n
Byrnes
Wiley B.
100
11
10
7
28
128
Roosevelt
Byrnes
appointment to
Rutledge
other public
office

---

CRS-48
Actual or Prospective Vacancy
Apparently Became Known to
Number of days elapsed from...
President
Nominating
Outgoing
Nominee
President
Justice
Vacancy to
Nomination
First
Committee
Nomination
Starting
nomination
announce-
hearing to
final action
announce-
date to final
When
How
announce-
ment to first
committee
to Senate
ment to final
Senate
ment
hearing
final action
action
Senate action
action
Harry. S.
Owen J.
06/30/1945o
Retirement letter
Harold H.
80
No record of
No record of
0
1
81
Truman
Roberts
submitted to
Burton
hearing
hearing
President
Harry S.
Harlan F.
04/22/1946
Death of outgoing
Fred M.
45
8
5
1
14
59
Truman
Stone
Chief Justice
Vinson
Chief Justice
Harry S.
Frank
07/19/1949
Death of outgoing
Thomas C.
9
12
3
6
21
30
Truman
Murphy
Justice
Clark
Harry S.
Wiley B.
09/10/1949
Death of outgoing
Sherman
5
12
6
1
19
24
Truman
Rutledge
Justice
Minton
Dwight D.
Fred M.
09/08/1953
Death of outgoing
Earl Warren
24
Recess appointment, 10/02/1953
Eisenhower
Vinson
Chief Justice
Chief Justice
125p
22
22
5
49
174

---

CRS-49
Actual or Prospective Vacancy
Apparently Became Known to
Number of days elapsed from...
President
Nominating
Outgoing
Nominee
President
Justice
Vacancy to
Nomination
First
Committee
Nomination
Starting
nomination
announce-
hearing to
final action
announce-
date to final
When
How
announce-
ment to first
committee
to Senate
ment to final
Senate
ment
hearing
final action
action
Senate action
action
Dwight D.
Robert H.
10/09/1954
Death of outgoing
John
30
No record of
No record
No record
No record of
No record of
Eisenhower
Jackson
Justice
Marshall
hearing
committee
of
final action
final action
Harlan II
action
committee
after
after
action
committee
committee
referral
referral
5
45
14
6
65
70
Dwight D.
Sherman
09/07/1956
Retirement letter
William J.
38
Recess appointment, 10/15/1956
Eisenhower
Minton
submitted to
Brennan
President
129q
43
6
15
64
193
Dwight D.
Stanley F.
01/31/1957
Press conference
Charles E.
30
16
0
1
17
47
Eisenhower
Reed
held by Reed
Whittaker
announcing
retirementr
Dwight D.
Harold H.
10/06/1958
Retirement letter
Potter
8
Recess appointment, 10/14/1958
Eisenhower
Burton
submitted to
Stewart
President
103s
82
11
15
108
211

---

CRS-50
Actual or Prospective Vacancy
Apparently Became Known to
Number of days elapsed from...
President
Nominating
Outgoing
Nominee
President
Justice
Vacancy to
Nomination
First
Committee
Nomination
Starting
nomination
announce-
hearing to
final action
announce-
date to final
When
How
announce-
ment to first
committee
to Senate
ment to final
Senate
ment
hearing
final action
action
Senate action
action
John F.
Charles E.
03/28/1962
Retirement letter
Byron R.
2
12
0
0
12
14
Kennedy
Whittaker
received by
White
Presidentt
John F.
Felix
08/28/1962u
Retirement letter
Arthur J.
1
13
14
0
27
28
Kennedy
Frankfurter
submitted to
Goldberg
President
Lyndon B.
Arthur J.
07/20/1965
Goldberg
Abe Fortas
8
8
5
1
14
22
Johnson
Goldberg
appointment to
other public
officev
Lyndon B.
Thomas C.
02/28/1967
Outgoing Justice
Thurgood
105
30
21
27
78
183
Johnson
Clark
notified President
Marshall
of intention to
retirew
Lyndon B.
Earl Warren
06/13/1968x
Retirement letter
Abe Fortas
13
15
68
14
97
110
Johnson
submitted to
Chief Justice
President

---

CRS-51
Actual or Prospective Vacancy
Apparently Became Known to
Number of days elapsed from...
President
Nominating
Outgoing
Nominee
President
Justice
Vacancy to
Nomination
First
Committee
Nomination
Starting
nomination
announce-
hearing to
final action
announce-
date to final
When
How
announce-
ment to first
committee
to Senate
ment to final
Senate
ment
hearing
final action
action
Senate action
action
Lyndon B.
Abe Fortas
06/26/1968y
Fortas nomination
Homer
0
15
No record of
No record
Nomination
Nomination
Johnson
by Johnson to be
Thornberry
committee
of final
withdrawn by
withdrawn
Chief Justice
vote
committee
by
action
President
(10/04/1968)
President
Richard M.
Earl Warren
01/20/1969z
Fortas Chief
Warren E.
121
13
0
6
19
140
Justice
Burger
Nixon
Chief Justice
nomination
withdrawn by
President
(10/4/1968)

---

CRS-52
Actual or Prospective Vacancy
Apparently Became Known to
Number of days elapsed from...
President
Nominating
Outgoing
Nominee
President
Justice
Vacancy to
Nomination
First
Committee
Nomination
Starting
nomination
announce-
hearing to
final action
announce-
date to final
When
How
announce-
ment to first
committee
to Senate
ment to final
Senate
ment
hearing
final action
action
Senate action
action
Richard M.
Abe Fortas
05/14/1969
Resignation letter
Clement F.
96
29
23
43
95
191
Nixon
submitted to
Haynsworth,
President
Jr.
11/21/1969
Haynsworth
G. Harrold
59
8
20
51
79
138
nomination
Carswell
rejected by Senate
04/08/1970
Carswell
Harry A.
6
15
7
6
28
34
nomination
Blackmun
rejected by Senate
Richard M.
Hugo L.
09/17/1971
Retirement letter
Lewis F.
34
13
20
13
46
80
Nixon
Black
submitted to
Powell, Jr.
President
Richard M.
John
09/23/1971
Retirement letter
William H.
28
13
20
17
50
78
Nixon
Marshall
submitted to
Rehnquist
Harlan II
President

---

CRS-53
Actual or Prospective Vacancy
Apparently Became Known to
Number of days elapsed from...
President
Nominating
Outgoing
Nominee
President
Justice
Vacancy to
Nomination
First
Committee
Nomination
Starting
nomination
announce-
hearing to
final action
announce-
date to final
When
How
announce-
ment to first
committee
to Senate
ment to final
Senate
ment
hearing
final action
action
Senate action
action
Gerald R. Ford
William O.
11/12/1975
Retirement letter
John Paul
16
10
3
6
19
35
Douglas
aa
submitted to
Stevens
President
Ronald Reagan
Potter
05/18/1981
Retirement letter
Sandra Day
50
64
6
6
76
126
Stewart
bb
submitted to
O’Connor
President
Ronald Reagan
Warren E.
05/27/1986
Justice privately
William H.
21
42
16
34
92
113
Burger
cc
alerted President
Rehnquist
of intention to
Chief Justice
retire
Ronald Reagan
William H.
05/27/1986
Rehnquist
Antonin
21
49
9
34
92
113
Rehnquist
dd
nomination by
Scalia
Reagan to be
Chief Justice

---

CRS-54
Actual or Prospective Vacancy
Apparently Became Known to
Number of days elapsed from...
President
Nominating
Outgoing
Nominee
President
Justice
Vacancy to
Nomination
First
Committee
Nomination
Starting
nomination
announce-
hearing to
final action
announce-
date to final
When
How
announce-
ment to first
committee
to Senate
ment to final
Senate
ment
hearing
final action
action
Senate action
action
Ronald Reagan
Lewis F.
06/26/1987
Press conference
Robert H.
5
76
21
17
114
119
Powell, Jr.
ee
held by Powell
Bork
announcing
retirement
10/23/1987
Bork nomination
Douglas H.
6
Ginsburg withdrew (11/07/1987)
rejected by Senate
Ginsburg
before official nominationff
11/07/1987
Ginsburg
Anthony M.
4
33
44
7
84
88
withdrawal
Kennedy
George
William J.
07/20/1990
Retirement letter
David H.
3
52
14
5
71
74
Brennan
submitted to
Souter
H. W. Bush
President
George
Thurgood
06/27/1991
Retirement letter
Clarence
4
71
17
18
106
110
Marshall
submitted to
Thomas
H. W. Bush
President
William J.
Byron R.
03/19/1993
Retirement letter
Ruth Bader
87
36
9
5
50
137
Clinton
White
gg
submitted to
Ginsburg
President

---

CRS-55
Actual or Prospective Vacancy
Apparently Became Known to
Number of days elapsed from...
President
Nominating
Outgoing
Nominee
President
Justice
Vacancy to
Nomination
First
Committee
Nomination
Starting
nomination
announce-
hearing to
final action
announce-
date to final
When
How
announce-
ment to first
committee
to Senate
ment to final
Senate
ment
hearing
final action
action
Senate action
action
William J.
Harry A.
01/01/1994
Justice privately
Stephen G.
132
60
7
10
77
209
Clinton
Blackmun
hh
alerted President
Breyer
George W.
Sandra Day
07/01/2005
Retirement letter
John G.
18
Nomination withdrawn by President (09/05/2005) before the first Judiciary
Bush
O’Connor
submitted to
Roberts
Committee hearing; re-nominated as Chief Justice (09/05/2005)
President
09/05/2005
Announcement of
Harriet Miers
28
Miers withdrew as nominee (10/27/2005) before the start of Judiciary Committee
Roberts
hearings
nomination
withdrawal and
re-submission by
President
10/27/2005
Announcement of
Samuel A.
4
70
15
7
92
96
Miers withdrawal
Alito, Jr.
George W.
William H.
09/03/2005
Death of outgoing
John G.
2
7
10
7
24
26
Rehnquist
Justice
Roberts
Bush

---

CRS-56
Sources: Durations for major intervals in the nomination-and-confirmation process were computed by the CRS authors. As described in the text, this research relied on historical
newspapers, official presidential papers, and CRS correspondence with Presidential Libraries. Ward’s Deciding to Leave was especially useful in compiling data on the reasons why
Justices left the bench. Additional source information appears in the table notes below.
a. It is unclear when President Theodore Roosevelt learned of Justice Shiras’s intention to retire. However, Washington Post coverage suggests that Shiras’s forthcoming departure
was well known in Washington by at least Aug. 20, 1902 (“Knox May Not Want It: Belief that He Would Decline Justice Shiras’ Position,” Washington Post, Aug. 20, 1902,
p. 1).
b. According to the Washington Post, Justice Brown notified the President, on Mar. 8, 1906, that he wished to retire (“To Leave the Bench: Justice Brown Will Retire in the Fall,”
Washington Post, Mar. 8, 1906, p. 3).
c. It is unclear from the historical record whether the President learned of Justice Brown’s desire to retire by letter, personal conversation, etc.
d. Justice Moody did not actually depart the Court until Nov. 20, 1910 (Ward, Deciding to Leave, p. 5). However, “Illness of a serious nature has kept Justice Moody from his duties
in the Supreme Court for almost a year. There have been occasional rumors of retirement, but Senator Lodge [on June 15, 1910] presented the real harbinger of that action, in
the form of a bill extending the statute relating to retirement from the Supreme Court to cover the case of Mr. Moody” (“Moody Will Retire,” Washington Post, June 15, 1910,
p. 1).
e. On June 10, 1916, Justice Hughes resigned to pursue the 1916 Republican presidential nomination (“Hughes, With Words That Ring, Obeys Call to Lead Republicans,” Washington
Post, June 11, 1916, p. 1). Although historical media research does not indicate that President Wilson knew for certain that Justice Hughes would resign, media reports had hinted
at a Hughes resignation throughout the spring of 1916.
f. Day did not leave the Court until Nov. 13, 1922. However, the Washington Post reported that Day’s consideration of retirement was mentioned at a White House briefing on Sept.
5, 1922 (“Justice Day May Leave the Bench,” Washington Post, Sept. 6, 1922, p. 1).
g. Although Justice Pitney’s resignation was effective as of Dec. 31, 1922, the White House announced Pitney’s forthcoming departure on Dec. 16, 1922 (“Resigns,” Chicago Daily
Tribune, Dec. 17, 1922, p. 17).
h. Justice McKenna did not officially retire until Jan. 5, 1925. However, the media reported his imminent retirement on Dec. 25, 1924 (“M’Kenna to Retire Soon as a Justice of the
Supreme Court,” Washington Post, Dec. 25, 1924, p. 2). Duration calculations for final Senate action on Stone are based on the Feb. 5, 1925, confirmation date shown in Table
1, not the Jan. 26, 1925, recommittal.
i. For an account of Justice Van Devanter privately alerting a reporter of his decision to retire on the morning of the announcement, see “News ‘Beat’ Aided by Van Devanter,” New
York Times, May 23, 1937, p. 40.
j. Although Justice Cardozo had been ill and away from the bench since December 1937 (United Press, “Supreme Court Liberal Succumbs to Heart Ailment in N.Y.,” Washington
Post, July 10, 1938, p. M1), a definite need to nominate a new Justice did not occur until Cardozo’s death on July 9, 1938.

---

CRS-57
k. Justice Brandeis had been away from the bench for a month, recovering from a heart attack, prior to announcing his retirement (United Press, “Justice Brandeis, Dean of Supreme
Court, Quits,” Los Angeles Times, Feb. 14, 1939, p. 1). Nonetheless, his retirement was considered abrupt, suggesting that President Roosevelt had little advance notice to consider
a successor.
l. It is unclear from the historical record whether the President learned of Justice McReynolds’s desire to retire by letter, personal conversation, etc.
m. Although Chief Justice Hughes’s retirement due to age and poor health had been “rumored some months” prior to submission of his formal retirement letter (Walter Trohan, “Hughes
Retires From Court,” Chicago Daily Tribune, June 3, 1941, p. 1), the definite need for a new nominee did not arise until Hughes announced his retirement.
n. Justice Byrnes resigned at President Roosevelt’s request on Oct. 3, 1942, becoming Director of Economic Stability. Roosevelt was, therefore, aware of an impending vacancy on
the Court prior to the formal resignation, although the precise date is unclear. For a summary of Byrnes’s transition from the Court to his new post, see Associated Press, “Byrnes
Resigns From Bench in Letter to President,” New York Times, Oct. 4, 1942, p. 45.
o. Although President Truman did not announce Justice Roberts’s intention to retire until July 5, 1945 (United Press, “Morganthau and Roberts Resign,” Los Angeles Times, July 6,
1945, p. 1), Justice Roberts’s retirement letter is dated June 30, 1945. Truman received the letter on that date “or soon thereafter” (e-mail communication between CRS
Information Specialist Dana Ely and Truman Library Archivist Randy Sowell, Sept. 2, 2005).
p. Congress was not in session when Chief Justice Vinson died on Sept. 8, 1953 (U.S. Congress, Joint Committee on Printing, 2003-2004 Official Congressional Directory: 108th
Congress (Washington: GPO), p. 519). President Eisenhower recess-appointed Earl Warren as Chief Justice on Oct. 2, 1953 and nominated him to the Court, on Jan. 11, 1954,
after Congress reconvened for the second session of the 83rd Congress. Therefore, although the interval between the starting date (Sept. 8, 1953, as shown in Table 1) and
announcement date (Jan. 11, 1954) is 125 days, and the entire interval from the starting date until final Senate action (Mar. 1, 1954) is 174 days, the President’s actual decision-
making timetable could also be classified as 24 days, or the interval between Vinson’s death (Sept. 8, 1953) and Eisenhower’s recess appointment of Chief Justice Warren (Oct.
2, 1953). Both intervals are used to calculate the median elapsed time from vacancy to nomination announcement. Nonetheless, the long intervals have a minimal impact on
computing the median durations between stages in the process because the median is less sensitive than the mean to extremely high or low values.
q. Congress was not in session when Justice Minton submitted his retirement letter to the President on Sept. 7, 1956 (U.S. Congress, Joint Committee on Printing, 2003-2004
Official Congressional Directory: 108th Congress,\ (Washington: GPO), p. 519). President Eisenhower recess-appointed William J. Brennan as Associate Justice on Oct. 15,
1956, and nominated him to the Court, on Jan. 14, 1957, after Congress convened for the first session of the 85th Congress. Therefore, although the interval between the starting
date (Sept. 7, 1956, as shown in Table 1) and announcement date (Jan. 14, 1957) is 129 days, and the entire interval from the starting date until final Senate action (Mar. 19,
1957) is 193 days, the President’s actual decision-making timetable could also be classified as 38 days, or the interval between Brennan’s retirement announcement (Sept.
7, 1956) and Eisenhower’s recess appointment of Justice Brennan (Oct. 15, 1956). Both intervals are used to calculate the median elapsed time from vacancy to nomination
announcement. Nonetheless, the long intervals have a minimal impact on computing the median durations between stages in the process because median is less sensitive
than the mean to extremely high or low values.
r. Whether President Eisenhower first learned of Justice Reed’s retirement through the press conference or a letter from Reed is unclear. Contemporary media coverage mentioned
a press conference and a letter to Eisenhower (Edward T. Folliard, “Reed Is Retiring From High Court,” Washington Post, Feb. 1, 1957, p. A1). However, political scientist

---

CRS-58
Artemus Ward’s account asserts that Reed announced his retirement through a press conference (Ward, Deciding to Leave, pp. 162-163). Regardless, both events occurred on
Jan. 31, 1957. For the Jan. 31 correspondence between Reed and Eisenhower, see “Letter to Stanley Reed Regarding His Retirement From Active Service as An Associate Justice
of the Supreme Court,” U.S. National Archives and Records Administration, Office of the Federal Register, Public Papers of the Presidents of the United States: Dwight D.
Eisenhower, 1957 (Washington: GPO, 1958), pp. 109-110.
s. Congress was not in session when Burton submitted his retirement letter to the President on Oct. 6, 1958 (U.S. Congress, Joint Committee on Printing,2003-2004 Official
Congressional Directory: 108th Congress (Washington: GPO), p. 519). President Eisenhower recess-appointed Potter Stewart as Associate Justice on Oct. 14, 1958, and nominated
him to the Court, on Jan. 17, 1959, after Congress convened for the first session of the 86th Congress. Therefore, although the interval between the starting date (Oct. 6,
1958, as shown in Table 1) and nomination date (Jan. 17, 1959) is 103 days, and the entire interval from the starting date until final Senate action (May 5, 1959) is 211 days,
the President’s actual decision-making timetable could also be classified as eight days, or the interval between Burton’s retirement announcement (Oct. 6, 1958) and Eisenhower’s
recess appointment of Justice Stewart (Oct. 14, 1958). Both intervals are used to calculate the median elapsed time from vacancy to nomination announcement. Nonetheless,
the long intervals have a minimal impact on computing the median durations between stages in the process because the median is less sensitive than the mean to extremely high
or low values.
t. This information is based on e-mail communication between CRS Information Specialist Dana Ely and Kennedy Library Reference Technician Sharon Kelly, Sept. 14, 2005.
u. Aug. 28, 1962, is the only definitive date which can be established based on available data, as the earliest point at which President Kennedy learned of Justice Frankfurter’s intention
to retire. However, President Kennedy’s quick nomination of Goldberg, and Justice Frankfurter’s poor health in the weeks leading up to his retirement, suggest that President
Kennedy was considering prospective nominees well before Frankfurter stepped down. Kennedy’s letter to Justice Frankfurter accepting his retirement references a visit the
President paid to Frankfurter to check on his health sometime during the summer of 1962 (U.S. National Archives and Records Administration, Office of the Federal Register,
Public Papers of the Presidents of the United States: John F. Kennedy, 1962, (Washington: GPO, 1963), p. 656). According to Kennedy Library Reference Technician Sharon
Kelly, Kennedy’s office files suggest that correspondence between Frankfurter, Special Assistant for National Security Affairs McGeorge Bundy, and the President would have
alerted Kennedy to Frankfurter’s declining health around May 17, 1962 (e-mail communication between CRS Information Specialist Dana Ely and Kennedy Library Reference
Technician Sharon Kelly, Sept. 14, 2005).
v. President Lyndon B. Johnson unexpectedly nominated Justice Goldberg to be U.S. Ambassador to the United Nations following the death on July 14, 1965, of the previous
ambassador, Adlai E. Stevenson. See Carroll Kilpatrick, “Goldberg is Named to Stevenson Post,” Washington Post, July 21, 1965, p. A1.
w. Despite the fact that Justice Clark announced his forthcoming retirement on Feb. 28, 1967, historical evidence suggests that Johnson might have prompted Clark’s retirement as
early as Jan. 1967, when the President prepared to nominated Justice Clark’s son, Ramsey, to be Attorney General. “On January 25, 1967, Johnson told Ramsey that he could
only be named the permanent attorney general if his father stepped down from the Court” (Ward, Deciding to Leave, p. 170).
x. Although President Johnson did not announce Chief Justice Warren’s retirement until June 26, he received Warren’s retirement letter on June 13, 1968 (U.S. National Archives and
Records Administration, Office of the Federal Register, Public Papers of the Presidents of the United States: Lyndon B. Johnson, 1968-69, vol. 1 (Washington: GPO, 1966),
p. 746).

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

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

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Table 3. Median Duration in Days Between Major Events in the Supreme Court Nomination-and-Confirmation
Process, 1900-2006
Median number of days elapsed from...a
President
President Apparently
Nomination
Apparently Learned
Time period
Learned of Actual or
Nomination
First Hearing to
Committee Final
Announcement
of Actual or
Prospective Vacancy to
Announcement to
Committee Final
Action to Final
to Final Senate
Prospective Vacancy
Nomination
First Hearing
Action
Senate Action
Action
to Final Senate
Announcement
Action
1900-1980
34
12.5
6
3
17
59
1981-2006
12
52
14
7
84
113
1900-2006
28
15
9
5
22
76
Sources: Durations for major intervals in the nomination-and-confirmation process were computed by the CRS authors. As described in the text, this research relied on historical
newspapers, official presidential papers, and CRS correspondence with Presidential Libraries. Artemus Ward’s, Deciding to Leave: The Politics of Retirement from the United States
Supreme Court (Albany: State University of New York Press, 2003) was especially useful in compiling data on the reasons why Justices left the bench.
a. In Table 3, the median amount of time from vacancy to final Senate action within each time period does not necessarily equal the sum of the medians for each stage in the nomination-
and-confirmation process. Likewise, the median length of time for all Senate actions (i.e., from nomination announcement to final Senate action) within each time period does not equal
the sum of the medians for each stage. The median identifies the mid-point for individual sets of observations. Because each stage of the process can have a different number of
observations, and because the data are also not a “normal” (i.e., “bell-shaped”) distribution, the sum of the medians for individual stages generally is not equal to the median for the
entire period. For more information, see chapter 4 in Ya-lun Chou, Statistical Analysis for Business and Economics (New York: Elsevier, 1989). Due to updated data in Tables 1 and
2, some of the summary statistics in Table 3 have changed from previous versions of this report. This version of the report does not include, when calculating the interval for total
Senate action (nomination announcement to final Senate action), cases in which nominations lingered in the Senate, but on which the Senate took no final vote (e.g., the nomination
was withdrawn, recommitted, etc.). If the Judiciary Committee held hearings or held a final vote, those dates are included in median calculations.
Note: For a listing of all Supreme Court nominations made during the 1900-2006 period and, for each nomination, the dates of the “major events” accounted for in the columns in
Table 3, see the preceding Table 1. For a listing, for each nomination, of the duration in days between major events in the Supreme Court nomination-and-confirmation process, see
Table 2.

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