Supreme Court Nominations: Senate Floor
Procedure and Practice, 1789-2009

Richard S. Beth
Specialist on Congress and the Legislative Process
Betsy Palmer
Analyst on Congress and the Legislative Process
June 5, 2009
Congressional Research Service
7-5700
www.crs.gov
RL33247
CRS Report for Congress
P
repared for Members and Committees of Congress

Supreme Court Nominations: Senate Floor Procedure and Practice, 1789-2009

Summary
From 1789 through 2006, the President submitted to the Senate 158 nominations for positions on
the Supreme Court. Of these nominations, 146 received action on the floor of the Senate, and 122
were confirmed. On June 1, 2009, the Senate received the nomination of federal judge Sonia
Sotomayor to be an Associate Justice of the Supreme Court. The data presented in this report do
not include this nomination.
The forms of proceeding by which the Senate considered the 146 nominees to reach the floor
break down relatively naturally into five patterns over time. First, from 1789 through about 1834,
the Senate considered the nominations on the floor a day after they were received from the
President. The second period (1835-1867) was distinguished by the beginning of referral of
nominations to the Committee on the Judiciary. The third period (1868-1921) was marked by rule
changes that brought about more formalization of the process. During the fourth period (1922-
1967), the Senate began using the Calendar Call to manage the consideration of Supreme Court
nominations, and the final time period, 1968 to the present, is marked by routine roll call votes on
confirmation and the use of unanimous consent agreements to structure debate.
Of the 122 votes by which the Senate confirmed nominees, 73 took place by voice vote and 49 by
roll call, but on only 24 of the roll calls did 10 or more Senators vote against. Of the 36
nominations not confirmed, the Senate rejected 11 outright, and 12 others never received floor
consideration (some because of opposition; others were withdrawn). The remaining 13
nominations reached the floor but never received a final vote, usually because some procedural
action terminated consideration before a vote could occur (and the President later withdrew some
of these). Including those that received incomplete consideration, were rejected, or drew more
than 10 negative votes, just 48 of the 158 total nominations experienced opposition that might be
called “significant.”
Of the 146 nominations that reached the floor, 100 received one day of consideration, while 25
received more than two days, including four on which floor action took seven days or more. Of
these 146 nominations, optional procedural actions that could have been used to delay or block a
confirmation vote occurred on 58, of which 26 involved procedural roll calls. Among a wide
variety of procedural actions used, the more common ones have included motions to postpone,
recommit, and table; motions to proceed to consider or other complications in calling up; live
quorum calls, and unanimous consent agreements.
Neither extended consideration, the presence of extra procedural actions, nor the appearance of
“significant” opposition affords definitive evidence, by itself, that proceedings were contentious.
For example, some nominations considered for one day still faced procedural roll calls, some
considered for three days or more faced no optional procedures, and some opposed by more than
10 Senators were still considered only briefly and without optional procedures. Of the 146
nominations to reach the floor, however, 76 were confirmed in a single day of action with neither
optional procedural actions nor more than scattered opposition.
This report will be updated to reflect action on additional nominees.

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Supreme Court Nominations: Senate Floor Procedure and Practice, 1789-2009

Contents
Introduction ................................................................................................................................ 1
Historical Trends in Floor Consideration ..................................................................................... 2
Beginning Patterns, 1789-1834 ............................................................................................. 3
The Original Court, 1789 ................................................................................................ 4
John Crittenden, 1828 ..................................................................................................... 4
Committee Referral, 1835-1867 ............................................................................................ 5
Robert C. Grier, 1846...................................................................................................... 6
Tyler Presidency, 1844-1845 ........................................................................................... 6
Increased Formalization, 1868-1922...................................................................................... 7
William B. Woods, 1880 ................................................................................................. 8
George E. Badger, 1853 .................................................................................................. 8
Ebenezer Rockwood Hoar, 1869 ..................................................................................... 9
The Calendar Call Becomes Formalized, 1922-1967 ........................................................... 10
William O. Douglas, 1939............................................................................................. 10
Unanimous Consent Agreements, 1968 to present ............................................................... 11
William H. Rehnquist, 1971 .......................................................................................... 12
Characteristics of Floor Action .................................................................................................. 12
Forms of Disposition........................................................................................................... 13
Varieties of Disposition ................................................................................................. 13
Dispositions and the Extent of Opposition ..................................................................... 17
Length of Floor Action........................................................................................................ 19
Days of Floor Action..................................................................................................... 19
Extended Consideration and Opposition ........................................................................ 20
Procedural Complexity........................................................................................................ 21
Optional Procedural Actions.......................................................................................... 21
Calling Up Nominations................................................................................................ 24
Proceedings in the Course of Floor Action..................................................................... 25
Procedural Complexity and Opposition ......................................................................... 29
Relation Among Characteristics of Proceedings................................................................... 30

Tables
Table 1. Supreme Court Nominations That Received No Vote on Confirmation ......................... 14
Table 2. Dispositions of Supreme Court Nominations, Types of Vote, and Extent of
Opposition Indicated .............................................................................................................. 18
Table 3. Length of Floor Action on Supreme Court Nominations ............................................... 20
Table 4. Procedural Actions Occurring During Floor Action on Supreme Court
Nominations .......................................................................................................................... 23
Table A-1. Selected Characteristics of Floor Proceedings on Supreme Court Nominations ........ 32
Table A-2. Selected Characteristics of Committee Action on Supreme Court Nominations......... 37

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Appendixes
Appendix. Selected Characteristics of Senate Action on Supreme Court Nominations................ 31

Contacts
Author Contact Information ...................................................................................................... 42

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Supreme Court Nominations: Senate Floor Procedure and Practice, 1789-2009

Introduction
The nomination of a Justice to the Supreme Court of the United States is one of the rare moments
when all three branches of the federal government come together: the executive branch
nominates, and the legislative branch considers the nomination, deciding whether the nominee
will become a member of the high court. Presidents and Senators have said that, short of
declaring war, deciding who should be on the Supreme Court is the most important decision they
will make while in office.
The Constitution, in Article II, Section 2, divides the responsibility for selecting and confirming
members of the Supreme Court between the President and the Senate. It says that the President
“shall nominate, and by and with the Advice and Consent of the Senate, shall appoint
Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other
Officers of the United States, whose Appointments are not herein otherwise provided for.... ”
The Senate has traditionally deferred to the President on nominations to the Cabinet, but they
have shown less deference to a President’s choice for the Supreme Court.1 Of the 158
nominations Presidents made to the Supreme Court since 1789, 36 were not confirmed. Of the
hundreds of cabinet officials nominated over the same time period, just 15 failed of
confirmation.2
Some nominations to the Supreme Court have won confirmation with little debate and no
procedural complications, while others have been debated extensively, with significant resort to
parliamentary procedures during consideration. It appears that the Senate has never felt strictly
bound by past practice in considering these nominations, but that it has used procedures and
forms of consideration that the body has at the time deemed appropriate to each individual case.
Nothing in Senate rules, procedures, or practice requires that the Senate proceed to a final vote on
a nomination, for example, although in most instances it has done so. Of the 158 nominations for
the Supreme Court, 12 never reached the floor and 13 others never received a final vote, although
they were debated on the floor. The remaining 11 nominations that failed of confirmation reached
a final vote, but were rejected by the Senate.
This report examines the ways in which the Senate has handled the 158 Supreme Court
nominations the President has sent to the Senate in the past.3 As the purpose of this report is to
examine the forms taken by Senate proceedings on these 158 nominations, it treats each
nomination as a separate case.4 It is not couched in terms of the smaller number of different

1 Michael J. Gerhardt, The Federal Appointment Process: A Constitutional and Historical Analysis (Durham, NC:
Duke University Press, 2000), p. 162; archived CRS Report 89-253, Cabinet and Other High Level Nominations that
Failed to be Confirmed, 1789-1989
, by Rogelio Garcia. For more information, Members of Congress and their staff
should contact Betsy Palmer.
2 CRS Report RL31171, Supreme Court Nominations Not Confirmed, 1789-2008, by Henry B. Hogue; archived CRS
Report 89-253, Cabinet and Other High Level Nominations that Failed to be Confirmed, 1789-1989.
3 On June 1, 2009, the Senate received the nomination of federal judge Sonia Sotomayor to be an Associate Justice of
the Supreme Court. The data presented in this report do not include this nomination.
4 A list of all 158 nominations appears as Table A-1 in the Appendix to this report, giving for each the full name, year,
disposition, and information on the form of consideration. Discussion in the text identifies nominations by surname and
year, facilitating reference to fuller information in the Appendix. In cases in which an individual was nominated twice
in the same year, the suffixes “-1” and “-2” are used after the date to distinguish the first from the second nomination.
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individuals nominated or the ultimate outcome the confirmation process may have had for each
individual.5
Supreme Court confirmation debates, of course, do not occur in a vacuum. They are a product of
the President making the choice, the state of the Senate at the time, the nominee and his or her
views, and the prevailing mood of the country. These elements, while critical to understanding
specific cases, are not considered in this report, and discussions of them can be found in other
reports on the Supreme Court.6 This report focuses on the kinds of actions the Senate has taken
during consideration of Supreme Court nominees, how they have changed over time, and how
they have affected the process of confirmation.
The emphasis of this report is on the 146 nominations on which some form of formal proceedings
took place on the Senate floor, not on the ways in which the nominations might have been
handled in committee or other pre-floor stages.7 The information presented was drawn from a
comprehensive search of the Executive Journals of the Senate, which are its official record of
procedural actions taken in relation to executive business (i.e., nominations and treaties, which
are the forms of business submitted to the Senate by the President). For recent Congresses for
which the Journal was not yet available, information was taken from the Congressional Record
and the Nominations data base of the congressional Legislative Information System.
The following discussion first sketches the changing patterns of consideration that have been
normal in successive historical periods since 1789, noting their relation to changes in the
procedural rules and practice of the Senate. For each period, it not only describes normal and
exceptional practice, but also provides examples of proceedings that were either typical or
notable. The report then successively addresses three key characteristics of floor action on these
nominations: the dispositions the Senate made of them, the length of floor consideration, and the
kinds of procedural action taken during consideration.
Historical Trends in Floor Consideration
Although the Constitution mandates a role for the Senate in the consideration of nominees to the
Supreme Court, it does not include any specific method for doing so. The process by which the
Senate has considered these nominations has typically included several stages, from receipt and
committee referral through committee consideration and reporting, to scheduling for floor action,
followed by floor debate and a final vote. Within this broad outline, the Senate has answered the

5 The 158 nominations involved only 139 different individuals, because on 11 occasions, a President resubmitted the
name of an individual previously nominated but not confirmed, and on another eight occasions, a President nominated
either a sitting or a former Justice to be Chief Justice. Of the 139 individuals nominated, the Senate confirmed 116,
leaving 23 on whom the Senate never took favorable action. Of the 116 confirmed, five never served because they
declined the office, and one died before assuming it, so that 110 people (all but two of them men) have served as
Justices of the Supreme Court. See CRS Report RL33225, Supreme Court Nominations, 1789 - 2009: Actions by the
Senate, the Judiciary Committee, and the President
, by Denis Steven Rutkus and Maureen Bearden.
6 See CRS Report RL31989, Supreme Court Appointment Process: Roles of the President, Judiciary Committee, and
Senate
, by Denis Steven Rutkus, and CRS Report RL32821, The Chief Justice of the United States: Responsibilities of
the Office and Process for Appointment
, by Denis Steven Rutkus and Lorraine H. Tong.
7 Table A-2 in the Appendix, however, provides some general information on committee consideration of Supreme
Court nominees.
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basic question—what should the procedure be for consideration of nominations?—in different
ways at different times.
A review of all Supreme Court nominations since 1789 yields two general conclusions about the
procedures used. First, the Senate has not felt bound to consider each nomination in exactly the
same way that the others before it were considered. Although some Supreme Court nominations,
for example, never reached the Senate floor (and hence, did not receive a vote), the Senate spent
numerous days debating other nominations. Neither of those practices has been routine, but their
use shows how the Senate has reserved to itself the right to take the course of action that it
believes best suits consideration of a particular nomination. This stance becomes even more
evident when the Senate considers a well-known person for a Supreme Court seat. The Senate
received, debated and confirmed the nomination of former President William Howard Taft to be
Chief Justice on the same day, for example.
Second, although the form of confirmation proceedings has varied, the Senate’s process has
tended to become longer and more formal over time. Although members of the first Supreme
Court were confirmed just two days after their nominations were received, the norm in modern
times has tended toward weeks, if not months, between the receipt of the nomination and
disposition by the Senate.8 Early in the Senate’s history, it was not typical for Supreme Court
nominations to be referred to committee at all; by modern times, it was the norm for the Senate
Committee on the Judiciary to spend significant time reviewing nominees.
A study of the 158 nominations sent to the Senate finds that the Senate’s floor consideration of
Supreme Court nominations breaks down relatively naturally into five patterns over time.
Beginning Patterns, 1789-1834
In the earliest years, the Senate normally considered a Supreme Court nomination, as a matter of
course, on the second day after it had been received from the President. There was no routine
referral to committee, although at least one nominee, Alexander Wolcott, was referred to a select
committee in 1811 (his nomination was defeated). From the beginning, the Senate has considered
nominations in executive session, that portion of the Senate’s business that was established to
consider business that comes directly from the President (nominations and treaties). At this time,
executive session also meant that the doors were closed, only Senators and select staff were
permitted to be in the chamber and the proceedings were to remain secret.9
The first set of Senate rules, developed and adopted in 1789, did not include any specific
provisions for handling nominations. In 1806, the Senate adopted a general revision of its rules,
which included a new provision on nominations. This rule required that “when nominations shall
be made in writing by the President of the United States to the Senate, a future day shall be
assigned, unless the Senate unanimously direct otherwise, for taking them into consideration.”10

8 CRS Report RL33118, Speed of Presidential and Senate Actions on Supreme Court Nominations, 1900-2009, by R.
Sam Garrett and Denis Steven Rutkus.
9 The Senate decided to open its deliberations to the public on treaties and nominations in 1929. See “The Calendar
Call Becomes Formalized, 1922-1967,” below.
10 U.S. Congress, Senate, History of the Committee on Rules and Administration, Senate Doc. 96-27, 96th Cong., 1st
sess., prepared by Floyd M. Riddick, Parliamentarian Emeritus, with the assistance of Louise M. McPherson
(Washington: GPO, 1980), p. 10. The Senate has adopted general revisions of its rules just seven times since 1789, and
(continued...)
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Despite adoption of this rule, however, there is no indication that the Senate either fixed a date for
consideration of nominations when they were received, or that the Senate waived this rule.
The journal which records the Senate’s action on nominations, the Executive Journal, records no
motion to consider these early nominations, instead stating simply that “the Senate proceeded to
consider” the message from the President. The message from the President became the de facto
method of organizing the nominations, apparently representing a precursor of the Calendar Call
the Senate was to employ later. Of the 31 Supreme Court nominations sent to the Senate during
this period, all 28 confirmations occurred by voice vote; the two rejections were by roll call (one
nomination was considered by the Senate but left unfinished).
Also, the normal period of floor consideration during this period was one day for each
nomination. Five nominations were considered for more than one day: the three nominations not
confirmed, Wolcott, John Rutledge (1795) and John J. Crittenden (1828), and two others, that of
Alfred Moore (1799) and Robert Trimble (1826).
This pattern of consideration is shown in the confirmation of the very first Supreme Court, in the
following case study.
The Original Court, 1789
The court’s first six members, a Chief Justice and five Associate Justices, were nominated by
President George Washington on September 24, 1789. The nominations were not referred to
committee. These men were personally known to many, if not all, members of the Senate, and
there was no extensive investigation into their background. On September 26, the Senate
proceeded to consider each of the six men, and on each, “on the question to advise and consent
thereto, it passed in the affirmative.”11 There is no indication of lengthy debate; all six
nominations were confirmed on the same day, in the same way. John Jay was confirmed as Chief
Justice, and John Rutledge, of South Carolina, James Wilson, of Pennsylvania, William Cushing,
of Massachusetts, Robert H. Harrison, of Maryland, and John Blair, of Virginia, were confirmed
as Associate Justices.
Although the vast majority of nominations during this time was handled in the same way as the
above, there were instances of extraordinary procedure, particularly when the nomination
appeared to be controversial, as shown in the following case study.
John Crittenden, 1828
On December 17, 1828, President John Quincy Adams nominated John Crittenden, a Kentucky
lawyer, to be an Associate Justice of the Supreme Court, to replace Justice Robert Trimble, who
had died. The nomination took place after Adams’ successor, Andrew Jackson, had been elected

(...continued)
this book sets forth each of these revisions. The Senate routinely makes changes to its rules in a piecemeal fashion, and
sometimes the general revisions include changes that had actually been made earlier in time. To date, however, this
book is the best source for changes in Senate rules over time.
11 Journal of the Executive Proceedings of the Senate, Sept. 26, 1789, p. 29, available at http://memory.loc.gov/cgi-bin/
query/r?ammem/hlaw:@field(DOCID+@lit(ej00135)), accessed on Jan. 20, 2006. (Hereafter cited as Senate Executive
Journal
).
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in November. Opposition to Crittenden by supporters of Jackson prevented the Senate from
confirming him.12
Crittenden’s supporters did not give in without a fight, and the Senate debated the nomination for
nine days. In an unusual proceeding, rather than consider the nomination itself, the Senate
debated a resolution, offered by opponents of the nomination. It read:
Resolved, That it is not expedient to act upon the nomination of John I. Crittenden, as a
Justice of the Supreme Court of the United States, until the Senate shall have acted finally on
the report of the Judiciary Committee, relative to the amendment of the Judicial System of
the United States.13
One purpose of the above report was to address the question of whether to change the size of the
Supreme Court, which might have had the effect of abolishing the seat to which Adams had
nominated Crittenden. Supporters of the nomination offered a lengthy amendment to the
resolution, which, in essence, said that it was the duty of the President to fill vacant slots no
matter at what point in a Presidency they occurred. An amendment to this amendment was then
offered, declaring:
That the duty of the Senate to confirm or reject the nominations of the President, is as
imperative as his duty to nominate; that such has heretofore been the settled practice of the
government; and that it is not now expedient or proper to alter it.14
The Senate rejected this amendment to the amendment by voice vote, voted 17-24 to reject the
original amendment, and then voted 23-17 on February 12, 1829, to adopt the original resolution
declaring it “not expedient” to act on the Crittenden nomination. By this action, the early Senate
declined to endorse the principle that proper practice required it to consider and proceed to a final
vote on every nomination.
Committee Referral, 1835-1867
A new pattern of bringing up and considering Supreme Court nomination emerged in 1835, when
the Senate began to refer nominations routinely to the Senate Committee on the Judiciary, which
had been created in 1816. Once the committee reported the nomination to the Senate, the chamber
tended to act upon it immediately. In most cases, the nomination was reported and then
confirmed, almost as one action. As with the previous practice, most of these confirmations were
accomplished by voice vote. The Senate followed this form of proceeding through 1867.
In some cases, a Senator, apparently opposed to a particular nomination, would move to table the
nomination immediately after it was reported from committee. The effect of a motion to table,
however, was not the same as it is in current Senate parliamentary practice, where the motion, if
successful, has the same effect as rejection. At this point in the development of the Senate, it
appears that the motion to table had an effect more like a motion to postpone, and was used as a
way to avoid taking action on the nomination on that day. When the Senate considered the

12 J. Myron Jacobstein and Roy M. Mersky, The Rejected: Sketches of the 26 Men Nominated for the Supreme Court
but Not Confirmed by the Senate
(Milpitas, CA: Toucan Valley Publications, 1993), pp. 19-23.
13 Senate Executive Journal, Jan. 26, 1829, p. 626.
14 Ibid, p. 638.
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nomination of Roger B. Taney to be Chief Justice in 1835, for example, the nomination was
immediately tabled after the committee reported it. Later, however, the Senate voted 25-19 to
proceed to consider the nomination, and he was confirmed.
The nomination of Robert C. Grier shows the typical features of this time period.
Robert C. Grier, 1846
President Polk nominated Grier on August 3, 1846 to replace Henry Baldwin, who had died. Grier
had served as president judge of the District of Allegheny Court in Pennsylvania. The nomination
was referred to the Judiciary Committee, which reported it out the next day. The Senate
considered the nomination immediately after it was reported and confirmed Grier by voice vote.15
Tyler Presidency, 1844-1845
The major departure from the normal pattern of consideration for Supreme Court nominations
during this time period took place during the presidency of John Tyler. He had been elected Vice
President on the Whig ticket with William Henry Harrison in 1840. Harrison died 31 days after
taking the oath of office, and Tyler became President. His relations with the Whig party were
strained, and after he vetoed a banking bill, Tyler’s entire cabinet but for one resigned, and Tyler
was later expelled from the Whig party. Not surprisingly, Tyler had difficulties winning
confirmation of his Supreme Court nominations from a Whig-dominated Senate.16
Tyler tried nine times to win Senate confirmation of a Supreme Court nomination, but he was
successful only once, with the nomination of Samuel Nelson in 1845. Tyler nominated four other
men over the course of more than a year to fill vacancies on the court. He sent the name of
Edward King to the Senate twice, that of John C. Spencer twice, and that of Reuben H. Walworth
three times. The Senate responded with disdain. Four times the Senate voted to table Tyler
nominations (and took no further action on them); one, the 1844 nomination of Spencer, the
Senate rejected outright by a vote of 21-26.
The standoff between the President and the Senate took on such intensity that in one day, June 17,
1844, Tyler changed his mind about whom to nominate twice. At the time, the Senate had tabled
the nomination of Walworth to be an Associate Justice. According to the Senate Executive
Journal
, Tyler sent the following message to the Senate:
I have learned that the Senate has laid on the table the nomination, heretofore made, of
Reuben H. Walworth, to be associate justice of the Supreme Court, in place of Smith
Thompson, deceased. I am informed that a large amount of business has accumulated in the
second district, and that the immediate appointment of a judge for that circuit is essential to
the administration of justice. Under those circumstances, I feel it is my duty to withdraw the
name of Mr. Walworth, whose appointment the Senate by their action seems not now
prepared to confirm, in the hopes that another name might be more acceptable. The
circumstances under which the Senate heretofore declined to advise and consent to the
nomination of John C. Spencer have so far changed as to justify me in my again submitting
his name to their consideration. I, therefore, nominate John C. Spencer, of New York, to be

15 David G. Savage, ed., Guide to the U.S. Supreme Court, 4th ed. (Washington: CQ Press, 2004), pp. 945-946.
16 Jacobstein and Mersky, The Rejected, pp. 33-41.
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appointed as an associate justice of the Supreme Court, in the place of Smith Thompson,
deceased.17
JOHN TYLER
Tyler then sent several other appointment messages to the Senate, which were read. The Senate
confirmed several of the other appointments. The journal then records a dispute over whether the
Senate should receive a further message from the President, as the time previously set to end the
Congress had arrived. Senators agreed to hear the message, which read “I withdraw the
nomination of John C. Spencer to be associate justice of the Supreme Court of the United States,
and I renominate Reuben H. Walworth to be associate justice of the Supreme Court of the United
States.”
A motion was made to consider Walworth, but objection was heard, and the Senate then
adjourned sine die.18
Increased Formalization, 1868-1922
In 1868, the Senate passed another general revision of its rules. It contained a lengthier and far
more specific method for dealing with nominations.
When nominations shall be made by the President of the United States to the Senate, they
shall, unless otherwise ordered by the Senate, be referred to appropriate committees; and the
final question on every nomination shall be “Will the Senate advise and consent to this
nomination?” which question shall not be put on the same day on which the nomination is
received nor on the day on which it may be reported by committee, unless by unanimous
consent of the Senate. Nominations neither approved nor rejected by the Senate during the
session at which they are made shall not be acted upon at any succeeding session without
being again made by the President; and if the Senate shall adjourn or take a recess for more
than thirty days, all nominations pending and not finally acted upon at the time of such
adjournment or recess shall be returned to the President and shall not be afterwards acted
upon, unless again submitted to the Senate by the President; and all motions pending to
reconsider a vote upon a nomination shall fall on such adjournment or recess; and the
Secretary of the Senate shall thereupon make out and furnish to the heads of departments and
other officers the list of nominations rejected or not confirmed, as required by law.19
This rule codified what had since 1835 become the practice of the Senate, at least in regard to
Supreme Court nominations, of referring the nomination to committee. It also called for a layover
of at least a one day from the time a committee reported on a nomination to Senate action on that
nomination, unless the Senate decided by unanimous consent to do otherwise.
Despite the rule, however, the Senate did tend to decide otherwise. Of the 41 nominations in this
period, nearly half, 18, were considered by the Senate by unanimous consent on the same day
they were reported out of committee. Nine other nominations were considered within two days of
the committee’s report. The remaining 10 nominations which saw floor action came up on the
floor more than two days after the committee reported, sometimes significantly more than two

17 Senate Executive Journal, June 17, 1844, p. 353.
18 Ibid, p. 354.
19 Riddick, History of the Committee on Rules and Administration, p. 26.
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days later. In the case of Melville W. Fuller to be Chief Justice (1888), for example, the Senate
took up the nomination 17 days after the committee reported it.
In a change from past practice, the Senate Committee on the Judiciary began issuing reports that
characterized the committee’s support for the nomination: the committee would usually report
favorably, but sometimes adversely. Prior to 1869, the committee had simply reported the
nomination, without such characterizations.
Roll call votes on the confirmation of the pending nomination became more common during this
period, occurring on 16 of the 41 nominations. The Senate rejected three nominations decided by
roll call votes and confirmed the 13 others.
The nomination of William B. Woods illustrates the key patterns of consideration at this time.
William B. Woods, 1880
When Associate Justice William Strong resigned, President Rutherford B. Hayes looked for a
southerner to replace him. Woods was born and educated in the north, and had been a leader in
the Ohio legislature and subsequently a Union general. After the war, however, he had settled in
Alabama, and had become a circuit court judge on the Fifth Circuit. Hayes nominated Woods on
December 15, 1880. The nomination was referred to the Judiciary Committee, which reported it
favorably on December 20. The next day the Senate considered the nomination and, by a vote of
39-8, confirmed it.20
Also during this period, however, confirmation ceased to be virtually automatic for Supreme
Court nominations, even when the nominee was a sitting Senator, as illustrated by the case of
George E. Badger.
George E. Badger, 1853
On January 10, 1853, President Millard Fillmore nominated George E. Badger to be an Associate
Justice, to replace Justice John McKinley, who had died. Although Fillmore, a Whig, was a “lame
duck” President following the fall election of Democrat Franklin Pierce, he nevertheless desired
to place a nominee on the Supreme Court. Badger, who was an incumbent Senator from North
Carolina and who had served as Secretary of the Navy under Presidents Harrison and Tyler,
would seem to have been a good choice. “It was thought that the Senate would exercise
Senatorial courtesy and not reject a fellow a Senator,” according to historians.21
The Senate, however, was controlled by Democrats, by a margin of 38 Democrats to 22 Whigs
and 2 Free Soilers. The Senate debated the Badger nomination for portions of four days. The
Senate postponed consideration several times, and in the course of one day’s debate on the
nomination, it voted 26-25 to adjourn. Finally, on February 11, the Senate agreed by a vote of 26-
25 to postpone consideration of the nomination until March 4, the date when the term of the
Congress would expire and the new President would take office.

20 Savage, Guide to the U.S. Supreme Court, pp. 958-959.
21 Jacobstein and Mersky, The Rejected, pp. 53-59.
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Debates on Supreme Court nominations during these years still took place behind closed doors,
and Senators were supposed to maintain the secrecy of these proceedings. The nomination of
Ebenezer Rockwood Hoar is one of the few instances in which some information is available
about what went on during the Senate debate.
Ebenezer Rockwood Hoar, 1869
Hoar, who was serving as Attorney General, was nominated for the Supreme Court by President
Grant in 1869. Republicans then controlled the Senate by a large margin, 62-12, and it was
thought, at first, that Hoar would have no trouble winning confirmation. But, as it turned out,
Hoar had badly alienated the Senate as Attorney General during implementation of the law which
created the circuit court system in early 1869. The law created a series of new federal judgeships,
and Hoar was responsible for choosing names to recommend to the President for filling these
positions. Hoar undertook the job without consulting Senators on those positions. According to
Hoar’s biography, “Nearly every Senator had a candidate of his own for the Circuit Court, but in
almost every instance the President took the Attorney General’s advice.” The same biography also
notes that “Unhappily, the judge’s manner in discharging his duty was not engaging. He had the
plain speech and trying sincerity of latitude 42 degrees N., in an extreme degree, and it proved
hard to bear at Washington.”22
The Senate received Hoar’s nomination on December 15, 1869. It was referred to the Judiciary
Committee, and on December 22 the committee reported it out with an adverse recommendation.
The Senate began debate on the nomination on the same day it was reported. A motion was
offered to adjourn, which failed by a vote of 23-31, as was a motion to table the nomination,
which also failed 24-30. But supporters of the nomination evidently saw the writing on the wall
and eventually agreed later that same day, by voice vote, to table the nomination, which, at that
time, still meant only to delay its further consideration, and not necessarily to kill it.
In a letter to Hoar, Massachusetts Senator Henry Wilson said it had been a difficult fight. “I write
simply to say that your friends for more than four hours battled for you, that all was said and done
that could be. When it was clearly seen that a majority had determined on a vote of rejection, we
struggled for more than two hours against coming to a vote, before we secured an adjournment.
Never have I seen such action in the Senate.” Another letter, from J.D. Cox, a former House
Member who was then Secretary of the Interior, said he had met with several senators about the
nomination fight. He said of those opposed to Hoar: “They were determined to be content with
nothing but a prompt rejection, and did not even consent to a motion to table the business, after
four hours exciting struggle, until [Alexander G.] Cattell [a Senator from New Jersey] told them
he would make dilatory motions all night before he would permit such an outrage. The result was
the tabling of the question, with (as the opposition claim) an understanding that it shall not be
again taken up.”23
The Senate reconvened in 1870 and, on February 3, rejected Hoar’s nomination by a vote of 24-
33.

22 Moorfield Storey and Edward W. Emerson, Ebenezer Rockwood Hoar: A Memoir (Boston: Houghton Mifflin
Company, 1911), p. 182.
23 Ibid., pp.189-190, 191.
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The Calendar Call Becomes Formalized, 1922-1967
Beginning in 1922, the Senate began to call up Supreme Court nominations under a system
known as the Call of the Calendar or a Calendar Call. Under this procedure, the Senate would
consider the nominations that had been reported by committee and placed on the Executive
Calendar
in the order in which they appeared on that calendar. Under this system, there was no
need to make a motion or ask unanimous consent to take up a Supreme Court nomination. The
Senate would instead begin with the first available nomination and work its way through the
calendar until reaching the Supreme Court nomination. If a nomination was experiencing
difficulty, the Senate could pass it over when it was reached on the Calendar Call. It would come
up again the next time the Senate took up the Calendar. Particularly in cases for which there was
no controversy, on the other hand, the Senate could call up a nomination out of order by
unanimous consent. These practices appear to represent a formalization of the process used from
1868 to 1922.
Twenty of the 30 Supreme Court nominations during this time period came up when their place
on the Calendar had been reached. Several others, in addition, were considered out of order by
unanimous consent, including Edward T. Sanford in 1923 and Byron White and Arthur J.
Goldberg in 1962.
Another major development, as well, took place early in this period: debate on nominations
became public. After years of debating the issue, in 1929 the Senate decided to conduct its
executive business (consideration of treaties and nominations) in open session. Increasingly in the
preceding years, although the doors had been closed and debate on nominations was supposed to
remain secret, very often detail of the sessions would leak out to the press. In addition, the rule of
secrecy had been set aside several times, so that certain debates, such as that on Louis D.
Brandeis to be an Associate Justice in 1916, could be opened to the public.
The immediate trigger for the rules change was the disclosure, by the United Press, of the roll call
vote on the nomination of Roy O. West to be Secretary of the Interior. Soon after, UP also
published the vote on the nomination of former Senator Irvine Lenroot to be a judge of the
Customs Court of Appeals. The Senate Rules Committee began an investigation into who leaked
the Lenroot vote, and, for a variety of reasons, it was forced to hold this inquiry in open session.
The reporter, Paul Mallon, refused to disclose who his source had been, and the committee came
to no conclusion on the matter. The Senate then considered a rules change that would have
allowed a majority to vote to open any executive session. An alternative was proposed to make all
debates open unless a majority voted to close them. The Senate approved this amendment, 69-5.24
The nomination of William O. Douglas shows how the Calendar Call operated when there was
controversy.
William O. Douglas, 1939
President Roosevelt nominated Douglas to be an Associate Justice on March 20, 1939, to replace
retiring Justice Louis D. Brandeis. Douglas was the head of the Securities and Exchange
Commission, and he seemed well-known to the Senate. The Senate Committee on the Judiciary

24 Joseph P. Harris, The Advice and Consent of the Senate (New York: Greenwood Press, 1968), pp. 249-255.
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referred the nomination to a subcommittee, which held a hearing at which no one testified. The
subcommittee unanimously reported the nomination to the full committee, which then
unanimously reported the nomination favorably to the full Senate on March 27. A news report
stated that Douglas attended the full committee’s meeting so that he could “meet the members.”25
Between the committee session and floor debate, however, opposition developed. Senator Lynn
Frazier of North Dakota argued Douglas had an improper relationship with the leaders of the New
York Stock Exchange. The nomination was passed over twice on the Call of the Calendar, in
order to facilitate fuller debate on the nomination. In particular, the first time the nomination was
passed over it was because Senator Frazier could not be in the chamber, and he wanted the Senate
to wait until he was able to be a part of the debate. Three live quorum calls were taken during
consideration of the nomination. The first of these was demanded at the start of the debate, and
the second during the middle of Senator Frazier’s speech. The third live quorum call was
demanded just prior to the final speech of the debate, made by Senator Maloney in favor of the
nomination. The vote to confirm Douglas was 62-4, with 30 Senators not voting.26
Unanimous Consent Agreements, 1968 to present
In the modern era, Senate practices of floor consideration generally have come to be dominated
by the use of unanimous consent agreements, under which Senators agree to limit their rights to
debate and to take procedural actions. The pervasiveness of these agreements has extended to the
consideration of Supreme Court nominations. From about 1968 to the present, unanimous consent
agreements have been reached that typically provide for when the Senate will take up
nominations, limit and structure the debate, and, in many instances, provide for a final
confirmation vote.
These agreements allow the Senate leadership to move to consider a nomination at a time, and in
a way, they desire, instead of waiting until the nomination is reached on the Calendar. In fact,
majority leaders began to ask unanimous consent to go into executive session to consider a
specific Supreme Court nomination. This proceeding had been used as early as 1959 for the
consideration of the nomination of Potter Stewart, and it was the method used, for example, when
Majority Leader Mike Mansfield called up Harry A. Blackmun for Senate floor consideration in
1970. Under a later precedent of the Senate, a motion to go into executive session to consider a
specific nomination is not debatable, though the nomination itself is.27
Another change also took place roughly around the same time. The Senate routinely began to
decide the question of confirmation by roll call votes. Since 1967, indeed, the Senate has
evidently come to consider it appropriate always to take roll call votes on Supreme Court
nominations. In addition, nominations during this period have typically received longer floor
consideration than in any previous period.

25 “Senators Approve the Nomination of William O. Douglas,” New York Times, Mar. 25, 1939, p. 3; Associated Press,
“Committee Approval Is Given to Douglas for Supreme Court,” Chicago Daily Tribune, Mar. 28, 1939, p. 3.
26 “Associate Justice of the Supreme Court of the United States,” remarks in Senate, Congressional Record, vol. 84,
Apr. 3 and 4, 1939, pp. 3705-3713, 3773-3788. For more on Frazier’s concerns, see “Frazier Attacks Choice of
Douglas,” New York Times, Apr. 4, 1939, p. 15.
27 Floyd M. Riddick and Alan S. Frumin, Riddick’s Senate Procedure, 101st Cong., 2nd sess., S. Doc. 101-28
(Washington: GPO, 1992), p. 941.
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A further characteristic of the modern era is the frequent resort to use of the cloture motion. The
Senate cloture rule, which permits a super-majority to limit the time for consideration of a matter
by a roll call vote, did not exist until 1917, and could not be applied to nominations until 1949.
Since then, supporters have attempted to use the motion to impose limits on the consideration of
only three Supreme Court nominations. Cloture was successful on one of the three nominations,
the 1986 nomination of William H. Rehnquist to Chief Justice. In 1971, Rehnquist had been
confirmed as an Associate Justice despite the failure of a cloture vote on his nomination. In 1968,
the Senate failed to get cloture on the motion to proceed to consider the nomination of Abe Fortas
to be Chief Justice, and the nomination was then withdrawn by the President.
The 1971 nomination of William H. Rehnquist illustrates the use of cloture on a Supreme Court
nomination.
William H. Rehnquist, 1971
President Nixon named Rehnquist to be an Associate Justice of the Supreme Court on October 26,
1971, to replace retiring Justice John Marshall Harlan. Rehnquist had been Assistant Attorney
General for two years and was well known on Capitol Hill, but opponents contended that he had
shown insufficient commitment to civil rights and civil liberties.28
The Judiciary Committee held five days of hearings on the Rehnquist nomination, and opponents
delayed the Committee vote on recommending the nomination to the full Senate for a week. The
Committee voted 12-4 to report the nomination favorably. The nomination was debated on the
Senate floor for five days. A motion to invoke cloture, and limit debate on the nomination, failed
on the fifth day by a vote of 52-42 (at that time, a two-thirds vote was required to succeed). A
motion that consideration of the nomination be postponed until mid-January was defeated by a
vote of 22-70. The Senate then agreed, by unanimous consent, to take a vote on the nomination at
5 p.m. that day. Rehnquist was confirmed by a vote of 68-26. (Subsequently, in 1986, he was
confirmed as Chief Justice of the United States by a Senate vote of 65-33, after proceedings in
which cloture was invoked).29
Characteristics of Floor Action
Senate floor proceedings on Supreme Court nominations might be distinguished in terms of a
wide variety of different characteristics. The present study focuses chiefly on three that are
readily identifiable and often referred to:
• the kind of vote (or other action) by which the Senate disposed of the
nominations;
• the amount of time the Senate spent considering them on the floor; and
• the forms of procedural action that occurred during their consideration.

28 Glen Elasser, “Rehnquist Assailed as Segregationist,” Chicago Tribune, Nov. 10, 1971, p. 5; Spencer Rich,
“Rehnquist Civil Liberties Stance Eyed,” Washington Post, Oct. 26, 1971, p. A1.
29 “Court Nominees: Powell and Rehnquist Confirmed,” Congressional Quarterly Almanac (Washington:
Congressional Quarterly Press, 1971), pp. 851-859.
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Each of these represents a salient element of the procedural context in which a nomination is
considered. Together, they may afford an indication of the amount of controversy, contention, or
opposition that surrounds a nomination. For example, if the Senate approves a nomination by a
voice vote after a single day of consideration, during which no procedural actions occur, one
might reasonably conclude that it involved little opposition or controversy. As the following
discussion indicates, however, none of these three characteristics, in itself, can simply be equated
with the level of controversy.
Forms of Disposition
Varieties of Disposition
An obvious initial distinction among the 158 nominations concerns the ways the Senate disposed
of them. In the broadest terms, the Senate confirmed 122 and failed to confirm the remaining 36.
This breakdown, however, conflates the 11 nominations that the Senate affirmatively rejected
with the 25 on which no final vote occurred. Further, the 25 without a final vote include 12 that
never received floor consideration at all and 13 that were called up, but on which the Senate never
finished action. The meaning and implications of each form of disposition may differ.
Nominations Confirmed
The 122 nominations confirmed make up 92% of the 133 on which the Senate reached a final
vote. Well over half the 122 confirmations (73, or 62% of the 122 confirmed) took place by voice
vote,30 and the remaining 49 (38% of confirmations) by roll call. In earlier periods of American
history, both voice and roll call votes occurred, but, as noted in the preceding section, in recent
decades roll calls have become universal. The closest vote by which a nomination was confirmed
was that of Matthews (1881-2), by 24-23; other close votes to confirm include those for Thomas
(1991), by 52-48; Lamar (1888), by 32-28; and Clifford (1857), by 26-23.
Nominations Rejected
The 11 Supreme Court nominations the Senate has rejected make up the remaining 8% of those
on which the Senate reached a final vote. All 11 of these rejections occurred on roll calls; the
Senate has never rejected a nominee by voice vote. As with confirmations, these 11 rejections
occurred at points scattered throughout American history. The earliest was Rutledge for Chief
Justice in 1795; the most recent, Bork in 1987. Bork’s was also the nomination rejected by the
widest margin (42-58); the closest was that of Parker (1930), who was rejected by 39-41. The
median margin of defeat, however, has been nine votes. Only in one instance (Spencer, 1844-2)
has a President resubmitted a nomination the Senate had previously rejected, and then, not
surprisingly, without success.


30 For this purpose, confirmation by unanimous consent is included with voice votes. At least 10 nominations have been
confirmed by unanimous consent, especially between 1923 and 1945.
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Table 1. Supreme Court Nominations That Received No Vote on Confirmation
Later Action
on Individual
Last Procedural
Floor Action
Nomination
With-
drawn?
Total
a
Renom-
Con-
inated?a
firmed?b
No Floor Action
12
None
Harriet Miers, 2005
yes



John Roberts, 2005
yes
yes
yes
Homer Thornberry, 1968
yes


John M. Harlan, 1954

yes
yes
Pierce Butler, 1922-1

yes
yes
William Hornblower, 1893-1

yes
rejected
Stanley Matthews, 1881-1

yes
yes
Caleb Cushing, 1874
yes


Henry Stanbery, 1866



William Micou, 1853



John C. Spencer, 1844-2
yes


William Paterson, 1793-1
yes
yes
yes
Floor Action Without Vote on Confirmation
13
Tabled
Edward A. Bradford, 1852




Edward King, 1845
yes


Reuben H. Walworth, 1845
yes


Reuben H. Walworth, 1844-1
yes
yes
no
Edward King, 1844
yes
no
Postponedc
George E. Badger, 1853



Roger B. Taney, 1835-1
yes
yes
John J. Crittenden, 1828
Motion to consider
Jeremiah S. Black, 1861



defeated
Motion to consider
Reuben H. Walworth, 1844-2

yes
no
met objection
Cloture failed on
Abe Fortas, 1968
yes


motion to consider
Recommitted George
H. Williams, 1874 yes

No procedures
John M. Read, 1845d



Totals
11 10 6 25
Source: Senate Executive Journal. For 21st century nominations, congressional Legislative Information System (LIS)
and Congressional Record.
a. Blanks indicate that the action in question did not occur. For details on the reasons for withdrawal, see
accompanying text.
b. “No” indicates that no final vote occurred on the subsequent nomination. Blanks appear when there was no
subsequent nomination.
c. For details on the means by which these postponements occurred, see section on “Procedural
Complexity.”
d. Nomination was taken up near the end of the session, and the Senate adjourned sine die before completing
consideration.

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Nominations Without Final Vote
The Senate conducted no final vote on 25 nominations. Table 1 lists these 25 nominations and
notes some pertinent contextual features of each. They make up 16% of the total number of high
court nominations submitted, an indication of the extent to which the Senate has not always
considered itself obligated to proceed to a final up-or-down vote on every Supreme Court
nomination presented to it.
These 25 nominations fall into two groups discussed separately in the following two subsections:
(1) 13 on which the Senate initiated floor action, but never completed it; and (2) 12 that never
reached the floor at all. For purposes of this report, all formal proceedings in the full Senate in
relation to a nomination, once it was available for floor consideration, were counted as floor
action. For example, a nomination was treated as receiving floor action even if the Senate never
actually proceeded to its consideration, but did decline to grant unanimous consent to do so.31
Overall, by this standard, the Senate has taken some floor action on 92% of all nominations
submitted, and proceeded to a final vote on 84%.
No Floor Action
The 12 occasions on which the Senate has failed to bring a nomination to the floor have also been
scattered throughout history. The circumstances of their occurrence have varied, as well. Five of
the 12 were submitted quite late in a session, so that the Senate may simply have lacked time to
act. Six others were withdrawn before floor consideration could commence, including instances
from Paterson in 1793 (first nomination) to Miers in 2005. The last of the 12 (Stanbery, 1866)
became moot because Congress reduced the size of the Court, thereby abolishing the vacancy.
This distribution of conditions for the lack of floor action suggests that the Senate has exhibited
little tendency to leave Supreme Court nominations without a final vote simply out of reluctance
to act, or to use inaction as an indirect means of denying confirmation. Four of the five
nominations late in a session, and two of the six withdrawn, were later resubmitted (usually at the
following session), and the Senate proceeded to a final vote on each of the resubmitted
nominations. The other four withdrawn nominations were never resubmitted. Overall, therefore,
only two of these 12 nominations continued to be available to the Senate and yet never received
floor action. These included one of the late-session nominations and the one that became moot.
These observations show that the simple absence of floor consideration cannot be taken to imply
that the Senate found the nomination less than acceptable. Of the five nominations in this group
that were later resubmitted, the Senate confirmed four, rejecting only one. In addition, at least
some of the withdrawals evidently occurred for reasons unrelated to Senate sentiment about the
nomination. Paterson (1793-1), for example, who was among those later resubmitted and
confirmed, was initially withdrawn only because he was constitutionally ineligible to sit on the
Court at that point, as he had previously been elected to a Senate term that had not yet expired,
and during which the salary of the Justices had been increased. The nomination of Roberts (2005-
1) was withdrawn because the President decided to nominate him instead for the post of Chief

31 The use of this inclusive criterion of floor action accounts for certain small differences between the figures presented
here and in CRS Report RL31171, Supreme Court Nominations Not Confirmed, 1789-2008, by Henry B. Hogue.
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Justice, which became available subsequent to his original submission of the Roberts’
nomination.32
Among nominations not resubmitted, Thornberry’s (1968) was withdrawn simply because his
vacancy was eliminated by the failure of a concurrent nomination of a sitting Justice to be Chief
Justice. The late nomination of Micou (1853) presents a more ambiguous case, but the immediate
reason it was not resubmitted was that the lame duck President who originally submitted it had
left office.
On other nominations in this group, circumstances suggest that the Senate’s inaction did reflect
the presence of opposition. Most clearly, the congressional action to abolish Stanbery’s vacancy
(1866) appears to reveal emphatic objection to his nomination.33 Also, after Hornblower’s initial
nomination received no action late in a session (1893-1), the Senate rejected his renomination
outright (1893-2). In the case of Spencer, as discussed earlier, the Senate had already rejected the
nomination once before President Tyler later resubmitted and withdrew it on the same day
(1844).34 There also appears reason to conclude that the withdrawals of both Cushing (1874) and
Miers (2005) represent responses to expressed opposition.35
Floor Action Without Final Vote
The 13 nominations that received floor action, but no final vote, reflect a different distribution of
circumstances. Consideration of one of the 13 (Read, 1845) appears simply to have begun too late
in a session to be completed, but the Senate appears to have laid aside each of the other 12 as a
consequence of unfavorable action on some procedural motion. The specific actions taken in
these cases, noted inTable 1 and described in more detail in the section on “Procedural
Complexity,” were seldom ones that conclusively precluded further consideration. Instead, the
Senate seems simply to have taken these actions as demonstrating a lack of sufficient support for
confirmation. The President, correspondingly, subsequently withdrew six of these nominations.
The frequency of these proceedings may indicate the extent to which the Senate, in the presence
of opposition to a Supreme Court nomination, has been willing to give it consideration and yet
decline to proceed to an “up-or-down” vote. In recent times, the Senate has not often resorted to
this form of proceeding. Nine of the 13 instances occurred in the decade from 1844 to 1853, and
only two took place after the Civil War. The earliest instance occurred in 1828, when the Senate
set aside the Crittenden nomination until after a reorganization of the Judiciary (by which point
the nominating President would have left office).36 The most recent case was the Fortas
nomination for Chief Justice, which President Johnson withdrew in 1968 after supporters
mustered only 45 votes for cloture on the motion to proceed to consider the nomination.37

32 Jacobstein and Mersky, The Rejected, p. 59.
33 Ibid., pp. 70-72. In the following session, nevertheless, Stanbery was nominated and confirmed as Attorney General.
34 Ibid., pp. 37-38.
35 Ibid, pp. 87-93; Robin Toner, David D. Kirkpatrick and Anne E. Kornblut, “Steady Erosion in Support Undercut
Nomination,” New York Times, Oct. 28, 2005, p. 16.
36 Jacobstein and Mersky, The Rejected, pp. 21-23.
37 Under the rule then in effect, two-thirds of Senators present and voting were needed to invoke cloture. On the vote in
question, the required number would have been 59.
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Dispositions and the Extent of Opposition
The left-hand group of columns in Table 2 summarizes the preceding discussion of how the
Senate has disposed of Supreme Court nominations, showing that the Senate has confirmed more
than three-quarters of all nominations submitted to it, and more than nine of every ten on which it
voted. Indeed, as the middle group of columns shows, the Senate has confirmed almost half of all
Supreme Court nominations ever submitted to it without even requiring a roll call vote. Roll calls,
on the other hand, have by no means been uncommon, occurring on three of every seven final
votes, including every one since 1967.
Neither the type nor the outcome of a vote, in itself, can be taken as affording a clear indication of
the extent of the opposition a nomination may have generated. In particular, although a voice vote
may reasonably be viewed as failing to indicate the presence of opposition, it could be rash to
presume that it demonstrates an absence of opposition.38 Conversely, although a roll call vote
may reflect the presence of extensive opposition, it may also occur when no such level of
opposition is present. In the years since 1968, for example, eight of the 18 roll calls have
registered fewer than four “no” votes. More broadly, as Table 2 shows, almost half of all roll call
votes on Supreme Court nominations throughout history have involved fewer than 10 votes in
opposition.
Taking the appearance of at least 10 “nay” votes as a rough threshold for the presence of
significant opposition permits a more meaningful judgment of the significance of these data on
the disposition of nominations.39 By this standard, 24 of the 49 roll calls by which nominations
were confirmed revealed “significant” opposition. Combining these 24 nominations with the 11
that were rejected, it may be said that just 35 of the Senate’s 133 votes on confirmation indicated
the presence of “significant” opposition.
By incorporating nominations that received no final vote into this approach, a unified account
may be given of what different outcomes on these nominations mean. The earlier discussion of
nominations that received floor action but no final vote suggested that this outcome typically
reflected the presence of opposition. The discussion of nominations that received no floor action,
on the other hand, concluded that this outcome has come about, on different occasions, both when
significant opposition was present and not. Accordingly, this disposition cannot, in itself, be taken
as an indicator of either circumstance.


38 A salient example is provided by the confirmation of Goldberg in 1962, when one Senator explicitly asked to be
recorded in opposition even though the Senate was acting by voice vote.
39 In early days, when the Senate was much smaller, fewer than 10 negative votes might still have represented a
significant level of opposition. In practice, however, the rough standard proposed may reasonably be applied to all
periods, because until 1870, all nominations opposed by fewer than 14 Senators were opposed by fewer than five.
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Table 2. Dispositions of Supreme Court Nominations, Types of Vote, and Extent of Opposition Indicated
Extent of Opposition Indicated by Form of
Outcome
Type of Vote
Disposition (see text)
Form of Disposition
Confirmed Rejected No Final
Action
Voicea Roll
Call None Scattered or
None
“Significant” Indeterminate
Confirmed, voice votea
73
73 73


Confirmed, roll call vote,
fewer than 10 opposed
25
25

25

Confirmed, roll call vote,
10 or more opposed
24
24
24

Rejected (all by roll call vote)

11


11


11

Floor action without final vote


13


13

13

No floor action


12


12


12
Total 122
11
25
73
60
25
98
48
12
Percent of 158 total nominations
77
7
16
46
38
16
62
30
8
Percent of 133 nominations
reaching a vote
92 8
55 45



Percent of 146 nominations
receiving floor action






67 33

Source: Senate Executive Journal; Table A-1.
a. Includes unanimous consent.

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The results of these considerations are summarized in the right-hand columns of Table 2. The 13
nominations on which floor action failed to result in a final vote are counted as cases of
“significant” opposition, but the 12 that never reached the floor are treated as permitting no
definite conclusion about opposition. This classification yields a total of 48 nominations with
dispositions that imply “significant” opposition.40 From this perspective, accordingly, it can be
held that just about two-thirds of the 146 Supreme Court nominations reaching the Senate floor
have met no more than scattered opposition.
Length of Floor Action
Days of Floor Action
Another salient characteristic in terms of which Supreme Court nominations vary is the length of
consideration they receive on the floor. As with forms of disposition, of course, length of
consideration can be established only for those nominations on which consideration occurs.
Accordingly, the data discussed in this section again reflect only the 146 nominations that reached
the floor.
The length of consideration of Supreme Court nominations is identified in Table 3 in terms of the
number of calendar days on which Senate floor action took place on the nomination.41 In general,
each day was counted on which any formal procedural action in relation to a nomination
occurred, even if the nomination itself was not formally under consideration on that day. For
example, a day was counted on which a motion to proceed to consider a nomination was offered
or debated, even if the motion was defeated, or was not adopted until the following day.
Otherwise, for example, all Senate floor action on the Fortas nomination for Chief Justice (1968),
which occurred in its entirety pending a motion to proceed to consider the nomination, would not
be counted. Similarly, in relation to the 1828 Crittenden nomination, days on which the Senate
debated the resolution to postpone action are counted as days of floor action on the nomination.
On the other hand, days were not counted on which Senators made individual speeches in relation
to a nomination, but the Senate did not formally have it under consideration on the floor, as
happened extensively, for example, on the Rehnquist nomination for Associate Justice (1971).

40 Alternatively, the 12 nominations without floor action might be incorporated into the classification on the basis of the
individual circumstances identified in their earlier discussion. The observations offered there suggest that five of the 12
might be taken as representing responses to opposition. The addition of these five would result in counting 53
nominations with “significant” opposition out of a total of 158, or 36%, a result but slightly different from that
displayed for only those nominations that reached the floor.
41 A more detailed measure, such as the number of hours consumed, would have been impracticable to compile,
especially for the years before 1929, when the Senate typically did all executive business in closed session. Number of
days, however, could be readily and definitively ascertained from the Executive Journal.
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Table 3. Length of Floor Action on Supreme Court Nominations
Days
Number of
For Chief
Nominations
Nominations
Disposition (if
not confirmed)
Justice?
1
100
[individuals not listed]
2
21
[individuals not listed]


3
10
[individuals not listed]
4
5
John G. Roberts, 2005

Charles Evans Hughes, 1930

yes
Harlan F. Stone, 1925

yes
Joseph P. Bradley, 1870

Alexander Wolcott, 1811
rejected
5
4
Samuel A. Alito, 2005
Clarence Thomas, 1991
William H. Rehnquist, 1986


yes
William H. Rehnquist, 1971
6
2
Abe Fortas, 1968
unfinished
George E. Badger, 1853
unfinished
yes
7
1
Clement Haynsworth Jr., 1970
rejected

8
1
John J. Parker, 1930
rejected

9
1
John J. Crittenden, 1828
unfinished

10-13 0


14 1
G.
Harrold
Carswell, 1970 rejected

Total 146

Source: Senate Executive Journal; Table A-1.
The data presented, accordingly, are more precisely described as presenting the length of “floor
action” than of formal “consideration” or of “debate.” In compiling these data, however, a few
actions were treated as exceptions to the standard just identified. Especially during the first half of
the 19th century, for example, the Senate commonly referred newly received nominations to
committee through action taken on the floor. In more recent times, the Senate has sometimes
reached a unanimous consent agreement setting terms for consideration of a nomination in
advance of any actual consideration. When either such action was the only one taken in relation
to a nomination on a given day, the day was not counted as a day of consideration. A contrary
practice would tend to overstate the length of consideration of these nominations relative to others
to which the Senate actually devoted similar time, but on which similar actions occurred not on a
preceding day, but on the same day as other steps.
Extended Consideration and Opposition
Table 3 shows that, historically, the Senate has found a single day sufficient for floor action on
nearly two-thirds of all the nominations submitted (although this form of action has ceased to be
the norm in the years since 1967). For nominations receiving longer consideration, numbers
decline quickly as length of consideration rises, so that barely 10% of those reaching the floor
remained there for more than three days.
The more extended consideration given to this relative handful of nominations may rest on a
variety of causes. Assessment of their nature is likely to begin from the well understood
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circumstance that opponents of a matter in the Senate may engage in extended debate as a means
of delaying or blocking final action.42 Accordingly, it might be natural to take the length of floor
action as an indicator of the intensity of opposition to a nomination, and specifically of the
determination with which opponents attempted to delay its confirmation. Such a supposition
might be supported by the observation that none of the six nominations receiving more than five
days’ consideration was confirmed.
Other considerations, however, also may be pertinent. It may be significant, for example, that four
of the 15 nominations considered for more than three days were for Chief Justice; it may
plausibly be supposed that the Senate has generally tended to find these nominations as
necessitating more sustained consideration. More broadly, the Senate may well have been likely
to devote more time to nominations that were considered particularly important, for example, to
the balance or future course of the Court.
In addition, the data in Table 3 also suggest a trend toward longer consideration in more recent
times. Although extended consideration was not unheard of even in very early years (e.g.,
Wolcott, 1811, and Crittenden, 1828), seven of the 10 nominations receiving more than four days’
consideration occurred in 1968 or later, beginning with the Fortas nomination for Chief Justice.
This trend may be associated either with generally observable developments in the way the
Senate handles its business or with increases in controversy specifically over nominations to the
Court.
These considerations suggest that the occurrence of extended consideration on Supreme Court
nominations cannot, in itself, be taken as a reliable indicator of strong opposition. Not only may
extended consideration occur for other reasons, but it is also not necessarily the case that even
determined opponents have always expressed their position by attempting to protract proceedings.
On the other hand, lengthy consideration may reasonably be viewed as a sign of the possibility
that opposition may have been present. Correspondingly, although the completion of
consideration on a single day cannot be taken to demonstrate an absence of opposition, it may
appropriately be viewed, more cautiously, as failing to afford evidence that significant opposition
was present.
Procedural Complexity
Optional Procedural Actions
Senate floor proceedings on Supreme Court nominations, like those on other matters, are
distinguishable not only in terms of the means of disposition and the length of time consumed,
but also by the procedural actions that may occur in the course of consideration. As with these
other characteristics of floor action, procedural actions can be identified only for the 146
nominations that reached the floor. Table 4 lists various forms of procedural action that have
occurred in the course of Senate floor consideration on these nominations and how often each has
appeared. It shows that no single procedure was used on more than about one in seven of the
Supreme Court nominations reaching the floor, but also that a half-dozen different procedures

42 These possibilities are discussed in more detail in CRS Report RL30360, Filibusters and Cloture in the Senate, by
Richard S. Beth and Stanley Bach.
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were used at least half that often. No single procedure either stands out as especially characteristic
of proceedings on these nominations or clearly identifies any distinctive subgroup among them.
Instead, floor proceedings on Supreme Court nominations are more readily categorized, in this
respect, simply in terms of whether or not any procedural actions at all occurred beyond those
required in the course of consideration itself. Throughout history, floor action on Supreme Court
nominations has most often remained procedurally simple in this sense. Proceedings on 78 of the
146 nominations were procedurally simple in the sense of involving no optional procedural
actions. The remaining 68 nominations (47% of the total) may be identified, in this minimal
sense, as “procedurally complex.”
Procedurally complex nominations might be further distinguished in several ways, such as by the
number of procedural actions that occurred in the course of floor action or the extent to which
procedural actions were applied to other procedural actions (e.g., a motion to table a motion to
postpone). A more readily applicable criterion for this purpose, however, is whether any of the
procedural actions taken resulted in a roll call vote. Again as Table 4 shows, procedural roll calls
occurred on 26 of the 68 nominations on which any optional procedures were used (18% of the
total 146 nominations on which floor action occurred). This further distinction affords a rough
indicator of the intensity with which procedural action was pursued.
For some kinds of optional procedure used in relation to Supreme Court nominations, the
principal effect would have been to expedite rather than delay consideration. These included
chiefly (1) actions, taken either by motion or unanimous consent, to proceed to consider a
nomination on the same day reported; and (2) consent agreements assuring a final vote (either by
limiting debate or setting a time certain) that were reached before consideration began or on its
first day. In order to examine the potential use of optional procedures as means of pursuing
opposition to Supreme Court nominations, it is appropriate to exclude these forms of action from
consideration. The second column of Table 4 presents a count of optional procedures that could
potentially have been used for purposes of delay or opposition.
Using this criterion, 88 of the total 146 nominations reaching the floor (60%) may be said to have
been subject to no optional procedures that could have had the effect of delaying or terminating
consideration. This percentage is comparable to the 62% of nominations that faced no significant
opposition and the 68% that received action on only a single day. As with those other
characteristics of consideration, it would not be appropriate to take the absence of procedural
complexity as demonstrating the absence of opposition. It could reasonably be said, nevertheless,
that when nominations involve no procedural complexity, no positive inference may be drawn
from the procedural features of consideration that opposition or contention was present.
Conversely, the occurrence of procedural complexity, or even of procedural roll calls, cannot be
regarded as sufficient in itself to demonstrate the presence of opposition or contention, but may
reasonably be taken as cause to think that such opposition may have been present.
The occurrence of optional procedural actions is also related to the occasions, previously detailed
in Table 1, on which nominations reached the floor but failed to reach a final vote on
confirmation. In 12 of the 13 cases of incomplete consideration listed in Table 1, some optional
procedural action was the last one that occurred, and had the effect of terminating consideration.
In order to indicate some potential effects of optional procedural actions, the last column of Table
4
reproduces this information in summary form.
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Table 4. Procedural Actions Occurring During Floor Action on Supreme
Court Nominations
Number of Nominations on Which
the Procedural Action—
Procedural Action
Had Effect of
Occurred
Potentially
Received a Roll
Involved Delay
Call Vote
Terminating
Consideration
Motion to postpone
19
19
8
3
Motion to recommit (or commit)
14
14
8
1
Intervention in calling up
23a 13b n.a.c n.a.c
Motion to proceed to consider
13d 13d 3 2
Motion to lay on the table
13
13
4
5
Live quorum cal
11
11
n.a.c n.a.c
Motion to adjourn or recess
7e
7 6 0
Consent agreement for final vote
17f
6g n.a.c n.a.c
Motion for cloture
4
4
4
1
Motion
to
reconsider 3
3 1 0
Total number of nominations
68h 58h 26h 12
Source: Senate Executive Journal. For 21st century nominations, congressional Legislative Information System (LIS)
and Congressional Record.
a. Includes only the following: (1) objections to a request, made either by motion or by unanimous consent, to
proceed to consider a nomination on the same day reported; (2) passing a nomination over on calendar cal ;
and (3) unanimous consent arrangements (including those made by special order) providing for
consideration at a future time.
b. Includes only the fol owing: (1) objections to a request, made either by motion to unanimous consent, to
proceed to consider a nomination on the same day reported; (2) passing a nomination over on calendar cal ;
and (3) unanimous consent arrangements before 1967 (including those made by special order) providing for
consideration at a future time.
c. Not applicable (see accompanying text).
d. Includes special orders for consideration that were established by vote; excludes motions that could have
been defeated by objection, which are included under (a)(1) and (b)(1) as “Interventions in calling up.”
e. Includes only those motions to adjourn or recess that were offered in executive session, and so could have
delayed or protracted consideration more than would normally have occurred.
f.
Includes only consent agreements that assured the occurrence of a final vote, either by limiting total debate
time, setting a time certain for a final vote, or otherwise.
g. Includes only consent agreements that assured the occurrence of a final vote and were not reached until
after the first day of consideration.
h. For the first three data columns, the total displayed is less than the sum of the cel entries, because some
nominations involved more than one procedural action.
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These 12 instances show that the effect of a procedural action in any individual case depends only
in part on the prescribed effect of the action. It is also affected, in some cases, by the procedural
context in which the action is undertaken, and in particular on whether it is integral to or
divergent from the routine practice of the time. Procedural context changes from case to case,
normal practice also has changed over the course of Senate history, and in some cases, the
prescribed effect of procedural actions has changed as well. Accordingly, the potential
significance of optional procedural actions may be clarified by reference to some of the points
initially developed in the section on “Historical Trends.” For this purpose, it is useful to look
separately at actions that affect how the Senate has taken up nominations and those that can occur
in the course of consideration. In both cases, however, the periods during which distinctive
patterns of optional procedural action characteristically appear differ from those discussed in
earlier sections, which were defined by changes in the normal terms of consideration. Each of the
following sections, accordingly, is couched in terms of its own appropriate periodization.
Calling Up Nominations
The Senate has always taken up nominations under procedures that govern action in executive
session, which are in some respects separate from those regulating legislative action. It has
usually done so by going into executive session to consider the nomination, but occasionally by
granting unanimous consent to consider the nomination “as in” executive session, without
actually leaving legislative session for the purpose. As described earlier, in the section on
“Historical Trends in Floor Consideration,” it appears that the normal practice of the Senate for
most of its history (from 1789 until roughly 1967) was to take up each nomination automatically
when it was reached in the course of considering executive business. In order to be eligible for
consideration under this procedure, a nomination apparently had to have become available for
floor action at least one day previously. Initially, nominations became available when received
from the President; after 1835, when nominations to the Supreme Court began routinely to be
referred to committee, they normally became available for consideration when reported. After
about 1922, it appears, this proceeding was formalized as a Call of the Calendar of nominations.
Sometimes, however, by unanimous consent, the Senate has taken up a nomination on the same
day reported or submitted. As previously noted, in fact, this proceeding was used for nearly half
of all nominations reaching the floor (18 of 41) from 1868 to 1922.
No departure from these routine forms of proceeding occurred before 1835, when the
nominations of Taney and Barbour, though eligible for the normal procedures, were called up
instead by a roll call vote on a motion to proceed to consider. Complications of a similar kind
were faced by Badger in 1853, when the Senate was unable to reach a vote on a motion to
proceed, and by Black in 1861, when the Senate defeated a motion to proceed on a roll call vote.
During roughly this same period, however (1844-1874), motions to proceed to consider were also
offered on seven other nominations that were eligible for normal consideration, but the Senate
adopted these motions in short order and by voice vote.
In the cases of both Badger and Black, the Senate also attempted to bring the nomination to the
floor through a special order providing that it proceed to consideration on a specified later day.
The Senate ultimately adopted a special order of this kind for Badger by voice vote, but never
accepted one for Black. On five Supreme Court nominations thereafter, through 1930, the Senate
used unanimous consent to establish special orders of this kind. These special orders represent
forerunners of the contemporary practice of reaching agreements in advance, by unanimous
consent, to take a matter up. In these earlier times, however, special orders seem to have been
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used for these nominations only in unusual circumstances, to overcome difficulties in bringing a
matter to the floor, and their effect was to put off its consideration until after the point at which it
would normally have come up.
Another form of action that indicated an attempt to delay consideration appeared on four scattered
occasions before 1967 when an attempt to call a nomination up on the same day it was reported or
submitted was prevented by objection. A more definite, though still only temporary, form of delay
was imposed on five nominations during this period (all after 1880), each of which was passed
over for consideration at least once, upon demand of a Senator, when reached in its normal order.
From 1968 on, the Call of the Calendar of nominations fell into disuse for the consideration of
Supreme Court nominations, and a different set of practices for initiating floor action on these
nominations has become standard. All but one of the 18 nominations that have reached the floor
since that time did so pursuant to a request for unanimous consent that the Senate proceed to
consider it. For nine nominations, this consent agreement provided for immediate consideration;
for the remaining eight, it provided, like the earlier special orders, for consideration to begin at
some future date. In addition, some of these consent agreements provided for the Senate not only
to take up the nomination, but to go into executive session for the purpose, and some also limited
debate or set a time certain for a final vote. Whether or not they included these additional
provisions, however, these agreements represent a routine proceeding for taking up the
nomination and fail to suggest any potential difficulties in bringing it to the floor. The only
nomination in this recent period to experience difficulty at the point of calling up has been that of
Fortas in 1968, on which a motion to proceed to consider was found necessary and could not be
brought to a vote.
Proceedings in the Course of Floor Action
Senate rules do not establish separate procedures for the consideration of nominations and of
legislation to the same extent that they do for calling up business of the two kinds. The most
evident differences in forms of proceeding between the two kinds of matter may be that
nominations, of course, cannot be amended. Otherwise, most of the same procedural mechanisms
used for legislative business are also available on nominations.
1789-1835
The only optional procedures used during consideration of Supreme Court nominations in these
years were motions to postpone temporarily, to commit with instructions, and to lay on the table.
The use of any of these motions was rare, occurring on only five of the 31 nominations reaching
the floor before 1835. Motions to postpone temporarily, however, were used as early as 1795,
motions to commit with instructions by 1811, and motions to table by 1826.
During this period, a motion to postpone or table was sometimes offered at the point when the
Senate was just proceeding to consider a nomination, so that the motions might in these instances
have been treated as part of the proceedings for calling up nominations. In order to present a
consolidated view of the use of each motion, however, the present discussion views all of them as
having been offered in the course of consideration.
Occasionally, as well, action with effect similar to one of these motions also was proposed by
resolution. For example, the Senate several times entertained a resolution that it postpone or table
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a nomination until enactment of legislation reorganizing the circuit courts (which could have the
effect of eliminating the nominee’s vacancy), or one that directed a committee to investigate a
nominee further, but did not formally recommit the nomination. Table 4 includes these
proceedings in the count of corresponding motions.
In most instances during this period, when motions to postpone, commit, or table were offered,
the Senate adopted them by voice vote. At that time, adoption of a motion to table evidently did
not have the effect of a final negative disposition, as it does today, but only of putting off action
for the time being. The normal effect of adopting any of these motions, accordingly, was only to
delay further action by taking the nomination off the floor temporarily. The only exception to this
pattern occurred in 1828, when adoption (by roll call) of the resolution postponing the Crittenden
nomination until after a circuit court reorganization effectively terminated consideration of the
nomination.
1835-1845
During the decade between 1835 and 1845, by contrast with earlier years, only five of the 16
Supreme Court nominations that reached the floor were considered without the intervention of
optional procedures. The procedures used continued to include only motions to postpone,
commit, and table, but the consequences of their use became more varied. Some of these motions
continued to be adopted by voice vote, but others were either adopted or rejected on roll call
votes. Adoption by voice vote may most likely suggest that supporters of the nomination may
have been using the motion either to gain time or for routine purposes of agenda management;
rejection by roll call suggests that the motions may have been offered by opponents seeking to
bring about delays in consideration. Either of these results, however, normally permitted
consideration to continue.
Especially when one of these motions was adopted by roll call, on the other hand, it often had the
effect of terminating consideration before an up-or-down vote could occur. In 1835, the Senate
tabled a resolution to postpone the Taney nomination until a circuit court reorganization, then
adopted a motion to postpone it indefinitely. In 1844, the Senate, by roll call votes, tabled
President Tyler’s nominations of Walworth and King, and in the following year it did the same to
their renominations, but by voice vote. The motion for indefinite postponement has the explicit
purpose of terminating consideration, but, under the practice of the time, a similar consequence
followed from adopting the motions to table only because the Senate never subsequently chose to
resume consideration of the nomination. It appears highly likely that in taking these actions, the
Senate understood that leaving consideration unfinished was their proponents’ intent and would
be the practical effect.
1845-1890
In the decades after 1845, political circumstances varied widely, but the overall incidence of
procedural complexity on Supreme Court nominations declined, although not to early levels. A
solid majority of the nominations reaching the floor between 1845 and 1890 (20 of 31)
experienced no optional procedural action at all after being called up. (This figure, however,
includes the five nominations confirmed during the Civil War, when any substantial opposition to
the administration was absent from the Senate.)
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During this period, the motions to postpone, to commit, and to table continued to be used on
Supreme Court nominations, except that, because initial committee referral had become routine,
the motion to recommit largely replaced the motion to commit. These three motions continued to
be used in ways similar to the previous period, and continued to have a similar range of
consequences. In 1870, however, a resolution was offered to lay two Supreme Court nominations
on the table until Congress completed a circuit court reorganization, and this proved to be the last
occasion on which an attempt was made in the Senate to table such a nomination. The Senate,
accordingly, has never attempted to use this motion on Supreme Court nominations during the era
when it would have the effect of a final negative disposition.
Beginning in 1853, however, the Senate also started to use motions to adjourn with the effect or
apparent intent of putting off consideration of a Supreme Court nomination.43 On the Badger
nomination in 1853, such a motion was adopted by a roll call vote. Thereafter, the motion to
adjourn was offered on six other nominations through 1889. On one occasion it was adopted by
voice vote, but otherwise a roll call always rejected it.
For a brief period beginning in 1870, motions to reconsider a vote to confirm also appeared. The
first such motion (on Strong in 1870) was withdrawn after three days’ debate and the failure of a
motion to postpone it. The second (on Harlan in 1877) never reached a vote. The last (on Woods
in 1880) was tabled by roll call after a quorum failed on an initial roll call on the motion itself.
After this third unsuccessful attempt, the Senate abandoned use of this motion in this context as
well.
Neither the motion to adjourn nor the motion to reconsider was ever used with the effect of
terminating consideration. The motions to postpone, to recommit, and to table, on the other hand,
which had continued to appear since earlier times, were still occasionally used with this effect.
The Bradford nomination was tabled in 1852 and received no further action, and the Badger
nomination in the following year was postponed until a date after Congress was to adjourn. In
1873, the Williams nomination became the only one on which a recommittal ever terminated
consideration.
On only one subsequent occasion (Fortas, 1968; see below) has the Senate ever again resorted to
optional procedural actions to terminate action on a Supreme Court nomination short of an up-or-
down vote. With this one exception, accordingly, such terminations came about only in the half
century from 1828 through 1873. This period included not only the nine nominations on which
floor action was terminated before a vote through optional procedures during consideration, but
also the two on which this effect followed from Senate action on a motion to proceed to
consider.44 As already suggested in the case of the tabled Tyler nominations, it appears likely that
in these instances, even when the procedures used did not, in themselves, definitively terminate
consideration, the Senate understood in using them that this would be their practical effect.

43 Routine adjournments and recesses by voice vote or unanimous consent, most of which occurred outside executive
session in any case, were not taken into account for this purpose.
44 It also included the single case in which consideration lapsed without a vote in the absence of any procedural action
(Read, 1845; see Table 1).
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1890-1967
After 1890, the frequency of optional procedural action during consideration declined further;
from then through 1967, such action appeared on just 14 of the 50 nominations that reached the
floor. Additional shifts also occurred in the forms of procedural action used. These shifts
amounted principally to a substantial decline in the use of motions that required a vote of the
Senate, and an increasing resort instead to live quorum calls, which can be demanded by a single
Senator, and unanimous consent agreements, which require the absence of objection by any single
Senator. Although the votable motions could potentially be used in ways that would have the
effect of terminating consideration, such a result was not likely from either of these procedures
that newly came into use on Supreme Court nominations during this period.
Early in this period, the Senate continued to adopt motions to recommit and to postpone by voice
vote, and to reject them by roll call. After 1930, however, these motions became more unusual,
and the motion to adjourn ceased to be used at all in this context. A motion to recommit or
postpone has been offered on just four nominations since 1930, most recently in 1971 (on
Rehnquist for Associate Justice), and all have been rejected on roll calls. Only routine motions to
adjourn or recess have been offered during consideration of any Supreme Court nomination since
1890, except for one occasion (on the nomination of Hughes for Chief Justice in 1930) on which
a roll call rejected a motion to recess. As noted earlier, the motion to reconsider had already
become disused in this context, perhaps because the Senate now routinely tables this motion
immediately after every successful action.
Beginning with the Stone nomination for Associate Justice in 1925, live quorum calls came to be
used with some regularity during consideration (although a single such call had already occurred
once previously, on the Woods nomination of 1880). At least 10 such calls each were demanded
on the Hughes and Parker nominations in 1930. This procedure can be used to incur a certain
amount of delay even if it succeeds in producing a quorum, although only once (in the
consideration of Parker) did such a call ever result in the actual failure of a quorum. After 1930,
live quorum calls occurred on seven more nominations, most recently in 1971, but no more than
three times on any single nomination.
The unanimous consent agreements that are to be taken into account in this connection include
only those that assured the ability of the Senate to reach a final vote on a nomination, usually by
setting either a time certain for the vote or an overall limit on the time for debate.45 Such an
agreement was first reached for Brewer (1889), but appeared on just three other nominations
between then and 1967. Three of these four agreements were reached either in advance of
consideration or on its first day, and accordingly appear likely to represent consensual
arrangements to facilitate consideration. The fourth agreement, by contrast (on Parker in 1930),
was not reached until the seventh day of consideration, and so appears more likely to represent a
response to attempts to delay or extend consideration.

45 Consent agreements providing that the Senate proceed to consider a nomination at a subsequent point were addressed
in the previous section, on “Calling Up Nominations.” Agreements that involved both features are counted in both
groups and considered separately under both heads.
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1968-Present
From 1968 onward, however, consent agreements became the standard means of regulating
consideration of Supreme Court nominations, as they increasingly did for other major matters.
Such agreements appeared on 15 of the 19 nominations that have reached the floor during this
period, and six of the 15 were established only after the first day of consideration. Many of these
agreements, on the other hand, may have represented collegial arrangements rather than attempts
to overcome any difficulties in consideration, especially inasmuch as, on 10 of the 15
nominations in question, the consent agreement was the only optional procedural action taken.
Overall, indeed, consideration of 14 of the 19 nominations reaching the floor since 1968 involved
no optional procedural actions other than the consent agreement.
On the remaining five of these 19 recent nominations, the only optional procedures used were to
postpone (once), to recommit (once), and for cloture. The motion for cloture, which allows a
super-majority to limit the time for consideration of a matter, started to be used on Supreme Court
nominations at about the same time as consent agreements became routine. As explained in the
section on “Historical Trends in Floor Consideration,” this motion did not become available for
use on nominations until 1949. It was not used on any nomination, however, until 1968, when the
Senate rejected cloture on a motion to proceed to consider the Fortas nomination for Chief Justice
(and thereafter abandoned action on the nomination). This action represents the only time since
1873 when the Senate has terminated floor action on a Supreme Court nomination short of an up-
or-down vote. Subsequently, cloture was moved also on the two Rehnquist nominations, as noted
in the case study presented earlier. On the 1971 nomination for Associate Justice the motion
failed, but a consent agreement was subsequently reached that permitted the Senate to reach a
vote on confirmation. On the 1986 nomination for Chief Justice, the Senate invoked cloture, the
first time it had done so on a Supreme Court nomination. Cloture was invoked also on the fourth
Supreme Court nomination on which it was moved, that of Alito in 2006.
Procedural Complexity and Opposition
As was the case for forms of disposition and length of consideration, the significance of
procedural complexity is more difficult to ascertain than is its occurrence. The preceding
discussion shows that, on some occasions, optional procedures may have been used routinely,
with the apparent purpose of managing the flow of business, and with a potential effect only of
expediting action. On other occasions, optional procedures may have been used as means of
delaying consideration or even placing obstacles in the way of a final disposition. In cases when
the occurrence of optional procedural action resulted in consideration being terminated before a
final vote, for example, it might reasonably be conjectured that the procedural action in question
could have been undertaken with the intent of bringing about this result. It is equally reasonable
to suppose that similar actions, undertaken on other nominations, may at least sometimes have
reflected similar intentions, even if the results did not successfully fulfill those intentions.
No definitive conclusions, of course, might be drawn about the purpose of optional procedural
actions in any specific case in the absence of information about the intentions of Senators
undertaking them. Even to offer inferences about specific occasions on which such intentions
were present would require examination of the political and historical circumstances surrounding
each nomination, a task beyond both the scope and the purpose of this report. The preceding
discussion, nevertheless, permits some assessment about which optional procedures may have
afforded the possibility of delaying consideration or forestalling a final vote, and, accordingly,
which of them might, in principle, have been used in some instances for such a purpose.
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As with the level of opposition manifested in the final vote and the length of floor action, it is
plausible to consider the occurrence of procedural actions, or procedural roll calls, as an
indication that contention or controversy may have been present, but it is insufficient to
demonstrate that substantial contentiousness actually was present. At most, it may be appropriate
to consider that the absence of optional procedural actions that could have been used for delay
presents an absence of indication of controversy.
Relation Among Characteristics of Proceedings
That none of the three indicators examined in this part of the report may be taken as a definitive
demonstration of the presence or absence of controversy is substantiated by the observation that
these three criteria do not always identify the same nominations as possibly controversial. On the
other hand, substantial overlap does exist among the nominations picked out by each indicator.
This circumstance suggests that a more reliable and comprehensive measure of the level of
controversy on each nomination might be derived from a simultaneous consideration of all three
indicators together. Such an analysis, however, is beyond the scope of this report.
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Appendix. Selected Characteristics of Senate Action
on Supreme Court Nominations

Selected Characteristics of Floor Proceedings
Table A-1 provides information on the extent of opposition to, length of consideration of, and
procedural actions taken on, each Supreme Court nomination submitted by the President from
1789 through 2005. This table identifies each nomination by the name of the nominee, and
nominations for Chief Justice are distinguished by italics. Each nomination is also identified by
the year in which it was submitted (action on some nominations extended into the following
year).
Nominations that received no floor consideration, or that were withdrawn by the President, are
identified in the “Notes” column, and for those that received no floor consideration, the columns
for characteristics of floor proceedings are blank.
The column on “final vote” gives the tally of each roll call vote on confirmation. Nominations
confirmed by a voice vote are identified by the entry of “voice” in this column. If no vote on
confirmation occurred, the column is left blank.
For nominations confirmed by voice vote, by unanimous consent, or with fewer than 10 “nay”
votes, the “Extent of Opposition” column is left blank. Other entries in this column identify those
nominations that
• received no final vote, by an entry of “unfinished;”
• were rejected, by an entry of “rejected;” and
• were confirmed with more than more than 10 “nay” votes, by an entry of
“opposition.”
The column on “Optional Procedural Actions” is blank only for those nominations on which no
floor action occurred. For nominations on which floor action occurred, the extent of optional
procedural actions is identified by entries of:
• “n” if no such actions occurred;
• “op” if such actions occurred, but with no procedural roll calls; and
• “opr” if procedural actions with roll calls occurred.
Congressional Research Service
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Supreme Court Nominations: Senate Floor Procedure and Practice, 1789-2009

Table A-1. Selected Characteristics of Floor Proceedings on Supreme
Court Nominations
Optional
Year Nominee Final
Extent of
Floor
Vote
Opposition
Days
Procedural
Notes
Actiona
1789
John Jay
Voice 1 n
1789 John
Rutledge
Voice

1
n

1789 William Cushing
Voice

1
n

1789
Robert H. Harrison
Voice

1
n
Declined to serve
1789 James
Wilson
Voice

1
n

1789 John
Blair
Voice

1
n

1790 James
Iredel
Voice

1
n

1791 Thomas
Johnson
Voice

1
n

1793-1 William Paterson




No floor action;
withdrawn
1793-2 William Paterson
Voice

1
n

1795
John Rutledge
10-14 Rejected 2
op
1796
William Cushing
Voice 1 n Declined
to
serve
1796 Samuel
Chase
Voice

1
n

1796
Oliver Ellsworth
21-1 1 n

1798 Bushrod
Washington
Voice

1
n

1799 Alfred
Moore
Voice

3
op
1800
John Jay
Voice 1 n Declined
to
serve
1801
John Marshall
Voice 1 n
1804 William Johnson
Voice 1 n
1806 H.
Brockholst
Livingston Voice

1
n

1807 Thomas
Todd
Voice

1
n

1811
Levi Lincoln
Voice

1
n
Declined to serve
1811 Alexander
Wolcott
9-24 Rejected 4
op
1811
John Quincy Adams
Voice

1
n
Declined to serve
1811 Joseph
Story
Voice

1
n

1811 Gabriel
Duval
Voice

1
n

1823 Smith
Thompson
Voice

1
n

1826 Robert
Trimble

27-5

2
opr
1828 John
J.
Crittenden
Unfinished 9
opr
1829 John
McLean
Voice

1
n

1830 Henry
Baldwin
41-2

1
n

1835
James M. Wayne
Voice

1
n

1835-1
Roger B. Taney

Unfinished
3
opr

Congressional Research Service
32

Supreme Court Nominations: Senate Floor Procedure and Practice, 1789-2009

Optional
Year Nominee Final
Extent of
Floor
Vote
Opposition
Days
Procedural
Notes
Actiona
1835-2
Roger B. Taney
29-15 Opposition 3
opr

1835 Philip P. Barbour
30-11
Opposition
1
opr

1837 William Smith
23-18
Opposition 2
op Declined
to
serve
1837 John
Catron
28-15 Opposition 2
op
1837 John
McKinley
Voice

1
n

1841
Peter V. Daniel
22-5

1
opr

1844-1
John C. Spencer
21-26
Rejected
1
n

1844-1 Reuben
H.
Walworth

Unfinished
1
opr
Withdrawn
1844 Edward
King
Unfinished 1
opr
1844-2
John C. Spencer




No floor action;
withdrawn
1844-2 Reuben
H.
Walworth

Unfinished
1
op

1845 Reuben
H.
Walworth
Unfinished 1
op Withdrawn
1845 Edward
King
Unfinished 1
op Withdrawn
1845 Samuel
Nelson
Voice

1
op
1845 John
M.
Read
Unfinished 1
op
1845
George W. Woodward
20-29
Rejected
2
opr

1845 Levi
Woodbury
Voice

1
n

1846 Robert
C.
Grier
Voice

1
n

1851
Benjamin
R.
Curtis Voice
1 n

1852
Edward A. Bradford

Unfinished
1
op

1853 George
E.
Badger
Unfinished 6
opr
1853 William C. Micou




No floor action
1853 John
A.
Campbel
Voice

1
n

1857 Nathan
Clifford
26-23 Opposition 2
op
1861
Jeremiah S. Black

Unfinished
3
opr

1862 Noah
H.
Swayne
38-1

1
n

1862 Samuel
F. Miller
Voice

1
n

1862 David
Davis
Voice

1
n

1863
Stephen J. Field
Voice

1
n

1864
Salmon P. Chase
Voice 1 n
1866
Henry Stanbery




No floor action
1869
Ebenezer R. Hoar
24-33
Rejected
2
opr

1869
Edwin M. Stanton
46-11
Opposition
1
n
Did not serve
1870 William Strong
Voice

3
opr

1870
Joseph P. Bradley
46-9

4
opr

Congressional Research Service
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Supreme Court Nominations: Senate Floor Procedure and Practice, 1789-2009

Optional
Year Nominee Final
Extent of
Floor
Vote
Opposition
Days
Procedural
Notes
Actiona
1872 Ward
Hunt
Voice

1
n

1874
George H. Williams
Unfinished 2
op Withdrawn
1874
Caleb Cushing




No floor action;
withdrawn
1874
Morrison R. Waite
63-0 1 op

1877
John M. Harlan
Voice

1
op

1880 William B. Woods
39-8 2 opr

1881-1
Stanley Matthews




No floor action
1881-2 Stanley
Matthews
24-23 Opposition 3
op

1881 Horace
Gray
51-5

1
n

1882
Roscoe Conkling
39-12
Opposition
1
n
Declined to serve
1882 Samuel
Blatchford
Voice

1
n

1888 Lucius
Q.C.
Lamar
32-28 Opposition 1
n

1888
Melville W. Fuller
41-20 Opposition 1
n

1889
David J. Brewer
53-11
Opposition
2
opr

1890
Henry B. Brown
Voice

1
n

1892 George
Shiras,
Jr.
Voice

1
n

1893
Howel E. Jackson
Voice

2
op

1893-1 William B. Hornblower




No floor action
1893-2 William B. Hornblower 24-30
Rejected 2
op
1894
Whel er H. Peckham
32-41
Rejected
3
op

1894
Edward D. White
Voice

1
n

1895 Rufus
W.
Peckham
Voice

1
n

1898 Joseph
McKenna
Voice

2
op
1902
Oliver W. Holmes
Voice

1
n

1903 William R. Day
Voice

1
n

1906 William H. Moody
Voice

1
n

1909 Horace
Lurton
Voice

1
n

1910 Charles
E.
Hughes
Voice

1
n

1910
Edward D. White
UC 1 n

1910 Willis Van Devanter Voice 1 n

1910 Joseph
R.
Lamar
Voice

1
n

1912 Mahlon
Pitney
50-26 Opposition 3
n

1914
James C. McReynolds
44-6

2
n

1916 Louis
D.
Brandeis
47-22 Opposition 1
op
1916
John H. Clarke
UC

1
n

Congressional Research Service
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Supreme Court Nominations: Senate Floor Procedure and Practice, 1789-2009

Optional
Year Nominee Final
Extent of
Floor
Vote
Opposition
Days
Procedural
Notes
Actiona
1921
William H. Taft
60-4 1 n

1922 George
Sutherland
Voice

1
n

1922-1
Pierce Butler




No floor action
1922-2 Pierce
Butler
61-8

1
opr

1923
Edward T. Sanford
UC

1
n

1925 Harlan
F.
Stone
71-6

4
op
1930
Charles E. Hughes
52-26 Opposition 4
opr

1930 John
J.
Parker
39-41 Rejected 8
op
1930 Owen
J.
Roberts
UC

1
n

1932
Benjamin N. Cardozo
UC

1
n

1937
Hugo L. Black
63-16
Opposition
1
opr

1938 Stanley
F.
Reed
UC

1
n

1939 Felix
Frankfurter
Voice

1
n

1939 William O. Douglas
62-4

2
op

1940 Frank
Murphy
UC

1
n

1941
Harlan F. Stone
UC 1 n

1941
James F. Byrnes
UC

1
n

1941
Robert H. Jackson
Voice

1
op

1943
Wiley B. Rutledge
Voice

1
n

1945 Harold
H.
Burton
UC

1
n

1946
Fred M. Vinson
Voice 1 n
1949
Tom C. Clark
73-8

2
n

1949 Sherman
Minton
48-16 Opposition 1
opr
1954
Earl Warren
Voice 1 n see
noteb
1954
John M. Harlan




No floor action
1955
John M. Harlan
71-11
Opposition
2
op

1957 William J. Brennan, Jr.
Voice

2
op

1957 Charles
E.
Whittaker
Voice

1
n

1959 Potter
Stewart
70-17 Opposition 1
op
1962 Byron
R.
White
Voice

1
n

1962
Arthur J. Goldberg
Voice

1
n
see notec
1965 Abe
Fortas
Voice

1
n

1967 Thurgood
Marshal
69-11 Opposition 2
n

1968
Abe Fortas
Unfinished 6
opr Withdrawn
1968 Homer
Thornberry




No floor action;
withdrawn
Congressional Research Service
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Supreme Court Nominations: Senate Floor Procedure and Practice, 1789-2009

Optional
Year Nominee Final
Extent of
Floor
Vote
Opposition
Days
Procedural
Notes
Actiona
1969
Warren E. Burger
74-3 1 n

1970
Clement Haynsworth, Jr.
45-55
Rejected
6
op

1970 G.
Harrold
Carswel
45-51 Rejected 14
opr
1970
Harry A. Blackmun
94-0

2
n

1971
Lewis F. Powell, Jr.
89-1

3
n

1971 William H. Rehnquist 68-26
Opposition
5 opr

1975
John Paul Stevens
98-0

1
n

1981 Sandra
Day
O’Connor
99-0

1
n

1986
William H. Rehnquist
65-33 Opposition 5
opr

1986 Antonin
Scalia
98-0

1
n

1987 Robert
H.
Bork
42-58 Rejected 3
op
1988
Anthony M. Kennedy
97-0

1
n

1990
David H. Souter
90-9

2
n

1991 Clarence
Thomas
52-48 Opposition 6
op
1993
Ruth Bader Ginsburg
96-3

3
n

1994
Stephen G. Breyer
87-9

1
n

2005-1
John G. Roberts




No floor action;
withdrawn
2005-2
John G. Roberts
78-22 Opposition 4
n

2005 Harriet
Miers




No floor action;
withdrawn
2005
Samuel A. Alito
58-42
Opposition
5
opr

Source: Senate Executive Journal. For 21st century nominations, Legislative Information System (LIS) and
Congressional Record.
Notes:
a. Includes only procedural actions having the potential for delaying consideration. For details, see Table 4
and accompanying text.
b. Recorded as unanimous.
c. One Senator asked to be recorded in opposition.
Selected Characteristics of Committee Action
Table A-2 provides information about the course of committee action on Supreme Court
nominations which, like that in Table A-1, may shed light on the extent and intensity of
opposition thereto. Also like Table A-1, this table identifies nominees by name and by year of
submission (which in some cases is not the year in which action was concluded), distinguishing
nominations for Chief Justice by italics.
Table A-2 addresses only committee action that occurred before initial floor consideration. If a
nomination was not referred to committee before initial floor consideration, the columns on
Congressional Research Service
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Supreme Court Nominations: Senate Floor Procedure and Practice, 1789-2009

“Days from receipt to committee report (or other final action),” and on “”Form of reporting (or
other final committee action)” are left blank. Similarly, the column on “Days of open committee
hearings” is left blank for cases in which no open committee hearings are known to have been
held.
Finally, the column on “floor disposition” is left blank for nominations that were confirmed. For
nominations not confirmed, a summary indication of floor disposition appears in this column, but
greater detail appears in Table A-1, above.
The table provides the “Form of reporting (or other final committee action)” for each nomination
that was referred to committee. In cases in which the committee action took any form other than
the normal form of favorable action, the entry in this column is given in bold face. “Reported”
was the normal form of favorable committee action from 1835 to 1865; “reported favorably”
thereafter.
Table A-2. Selected Characteristics of Committee Action on Supreme Court
Nominations
Days from receipt
Days of open
Form of reporting
Year Nominee to committee
(or other final
report (or other
committee
committee
Floor Disposition
final action)
hearings
action)
1789
John Jay




1789 John
Rutledge




1789 William Cushing




1789
Robert H. Harrison




1789 James
Wilson




1789 John
Blair




1790 James
Iredel




1791 Thomas
Johnson




1793-1 William Paterson



no floor action;
withdrawn
1793-2 William Paterson




1795
John Rutledge

rejected
1796
William Cushing




1796 Samuel
Chase




1796
Oliver Ellsworth




1798 Bushrod
Washington




1799 Alfred
Moore




1800
John Jay




1801
John Marshall




1804 William Johnson




1806 H.
Brockholst
Livingston




1807 Thomas
Todd




Congressional Research Service
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Supreme Court Nominations: Senate Floor Procedure and Practice, 1789-2009

Days from receipt
Form of reporting
Days of open
Year Nominee to committee
(or other final
report (or other
committee
committee
Floor Disposition
final action)
hearings
action)
1811 Levi
Lincoln




1811 Alexander
Wolcott
see
notea
rejected
1811
John Quincy Adams




1811 Joseph
Story




1811 Gabriel
Duval




1823 Smith
Thompson




1826 Robert
Trimble





1828 John
J.
Crittenden
39

recommended
not to act
unfinished
1829 John
McLean




1830 Henry
Baldwin




1835
James M. Wayne
2

reported

1835-1
Roger B. Taney



unfinished
1835-2
Roger B. Taney
8
reported

1835 Philip P. Barbour
8

reported

1837 William Smith
5

reported
1837 John
Catron
5

reported

1837 John
McKinley
6

reported

1841
Peter V. Daniel




1844-1
John C. Spencer
21

reported
rejected
1844-1
Reuben H. Walworth
93

reported
unfinished; withdrawn
1844 Edward
King
9

reported
unfinished
1844-2
John C. Spencer



no floor action;
withdrawn
1844-2 Reuben
H.
Walworth



unfinished
1845
Reuben H. Walworth
42

reported
unfinished; withdrawn
1845
Edward King
42

reported
unfinished; withdrawn
1845 Samuel
Nelson
2

reported

1845 John
M.
Read
6

reported
unfinished
1845
George W. Woodward
28

reported
rejected
1845 Levi
Woodbury
11

reported

1846 Robert
C.
Grier
1

reported

1851 Benjamin
R.
Curtis
11

reported

1852
Edward A. Bradford
9

reported
unfinished
1853 George
E.
Badger



unfinished
1853 William C. Micou
1

discharged
no floor action
Congressional Research Service
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Supreme Court Nominations: Senate Floor Procedure and Practice, 1789-2009

Days from receipt
Form of reporting
Days of open
Year Nominee to committee
(or other final
report (or other
committee
committee
Floor Disposition
final action)
hearings
action)
1853 John
A.
Campbel
1

reported

1857 Nathan
Clifford
28

reported

1861
Jeremiah S. Black



unfinished
1862 Noah
H.
Swayne
2

reported

1862 Samuel
F.
Miller




1862 David
Davis
2

reported

1863
Stephen J. Field
2

reported

1864
Salmon P. Chase




1866
Henry Stanbery
see noteb

no action
no floor action
1869
Ebenezer R. Hoar
7

adversely

1869 Edwin
M.
Stanton




1870 William Strong
6

favorably

1870
Joseph P. Bradley
6

favorably

1872 Ward
Hunt
5

favorably

1874
George H. Williams
9 see
notec favorably unfinished;
withdrawn
1874
Caleb Cushing
0
favorably
no
floor
action;
withdrawn
1874
Morrison R. Waite
1
favorably

1877
John M. Harlan
40

favorably

1880 William B. Woods
5

favorably

1881-1 Stanley
Matthews
19d

no action
no floor action
1881-2 Stanley
Matthews
53

adversely

1881 Horace
Gray
1

favorably

1882 Roscoe
Conkling
6

favorably

1882 Samuel
Blatchford
9

favorably

1888 Lucius
Q.C.
Lamar
29

adversely

1888
Melville W. Fuller
61
without
recommendation

1889
David J. Brewer
12

favorably

1890
Henry B. Brown
6

favorably

1892 George
Shiras,
Jr.
6

without
recommendation

1893
Howel E. Jackson
11

favorably

1893-1 William B. Hornblower
see noteb

no action
no floor action
1893-2 William B. Hornblower 33
adversely
rejected
1894
Whel er H. Peckham
21

without
recommendation
rejected
Congressional Research Service
39

Supreme Court Nominations: Senate Floor Procedure and Practice, 1789-2009

Days from receipt
Form of reporting
Days of open
Year Nominee to committee
(or other final
report (or other
committee
committee
Floor Disposition
final action)
hearings
action)
1894
Edward D. White




1895 Rufus
W.
Peckham
6

favorably

1898 Joseph
McKenna
28

favorably

1902
Oliver W. Holmes
2

favorably

1903 William R. Day
4

favorably

1906 William H. Moody
7

favorably

1909 Horace
Lurton
3

favorably

1910 Charles
E.
Hughes
7

favorably

1910
Edward D. White




1910 Willis Van Devanter
3
favorably

1910 Joseph
R.
Lamar
3

favorably

1912 Mahlon
Pitney
14

favorably

1914
James C. McReynolds
5

favorably

1916 Louis
D.
Brandeis
117
19
favorably

1916
John H. Clarke
10

favorably

1921
William H. Taft




1922 George
Sutherland




1922-1
Pierce Butler
5

favorably
no floor action
1922-2 Pierce
Butler
13

favorably

1923
Edward T. Sanford
5

favorably

1925
Harlan F. Stone
28
see notee favorably
1930
Charles E. Hughes
7
favorably

1930 John
J.
Parker
27
1
adversely
rejected
1930 Owen
J.
Roberts
10

favorably

1932
Benjamin N. Cardozo
8

favorably

1937
Hugo L. Black
4

favorably

1938 Stanley
F.
Reed
9
1
favorably

1939 Felix
Frankfurter
11
4
favorably

1939 William O. Douglas
7
1
favorably

1940 Frank
Murphy
11

favorably

1941
Harlan F. Stone
11 1
favorably

1941
James F. Byrnes




1941
Robert H. Jackson
18
1
favorably

1943
Wiley B. Rutledge
21
1
favorably

1945 Harold
H.
Burton
1

favorably

Congressional Research Service
40

Supreme Court Nominations: Senate Floor Procedure and Practice, 1789-2009

Days from receipt
Form of reporting
Days of open
Year Nominee to committee
(or other final
report (or other
committee
committee
Floor Disposition
final action)
hearings
action)
1946
Fred M. Vinson
13 1
favorably

1949
Tom C. Clark
10
3
favorably

1949 Sherman
Minton
18
1
favorably

1954
Earl Warren
44 2
favorably

1954
John M. Harlan
see noteb

no action
no floor action
1955
John M. Harlan
59
2
favorably

1957 William J. Brennan, Jr. 49
2 favorably

1957 Charles
E.
Whittaker
16
1
favorably

1959 Potter
Stewart
93
2
favorably

1962 Byron
R.
White
8
1
favorably

1962 Arthur
J.
Goldberg
25
2
favorably

1965 Abe
Fortas
13
1
favorably

1967 Thurgood
Marshal
51
5
favorably

1968
Abe Fortas
83 11
favorably
unfinished;
withdrawn
1968
Homer Thornberry
see noteb 11 no action
no floor action;
withdrawn
1969
Warren E. Burger
11 1
favorably

1970 Clement
Haynsworth,
Jr
36 8
favorably
rejected
1970 G.
Harrold
Carswel
28
5
favorably
rejected
1970
Harry A. Blackmun
21
1
favorably

1971
Lewis F. Powell, Jr.
32
5
favorably

1971 William H. Rehnquist 32
5 favorably

1975
John Paul Stevens
10
3
favorably

1981 Sandra
Day
O’Connor
27
3
favorably

1986
William H. Rehnquist
55 4
favorably

1986 Antonin
Scalia
51
2
favorably

1987 Robert
H.
Bork
91
12
unfavorably
rejected
1988
Anthony M. Kennedy
58
3
favorably

1990
David H. Souter
64
5
favorably

1991 Clarence
Thomas
81
8f
without
recommendation

1993
Ruth Bader Ginsburg
37
4
favorably

1994
Stephen G. Breyer
63
4


2005-1
John G. Roberts
see noteb

no action
no floor action;
withdrawn
2005-2
John G. Roberts
16 4
favorably

Congressional Research Service
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Supreme Court Nominations: Senate Floor Procedure and Practice, 1789-2009

Days from receipt
Form of reporting
Days of open
Year Nominee to committee
(or other final
report (or other
committee
committee
Floor Disposition
final action)
hearings
action)
2005 Harriet
Miers
see
noteb

no action
no floor action;
withdrawn
2005
Samuel A. Alito
75
5
favorably

Source: CRS Report RL33225, Supreme Court Nominations, 1789 -2009: Actions by the Senate, the Judiciary
Committee, and the President, by Denis Steven Rutkus and Maureen Bearden. Also, for 21st century nominations,
Legislative Information System (LIS) and Congressional Record.
Notes:
a. The Senate referred the Wolcott nomination to a special committee only subsequent to the start of floor
consideration.
b. The nomination was referred, but the committee took no final action.
c. The committee held two days of closed hearings on the Williams nomination after it was recommitted
subsequent to the start of floor consideration.
d. The committee took no action to report the first Matthews nomination, but at the end of the period stated
voted to postpone it.
e. The committee held one day of hearings on the Stone nomination after it was recommitted subsequent to
the start of floor consideration.
f.
The committee held three additional days of hearings on the Thomas nomination subsequent to the start of
floor consideration, although the nomination was not formally recommitted.

Author Contact Information

Richard S. Beth
Betsy Palmer
Specialist on Congress and the Legislative Process
Analyst on Congress and the Legislative Process
rbeth@crs.loc.gov, 7-8667
bpalmer@crs.loc.gov, 7-0381




Congressional Research Service
42