The Supreme Court has a legacy as old as this nation (the Supreme Court Historical Society provides information about the Court’s history). History has been privy to various changes including the location of the Court which has shifted from New York to Philadelphia to Washington D.C. The Justices also ceased riding the circuits which took up much of their time in the 19th century. Supreme Court nominations and confirmations have been a mainstay of national politics since the nation’s founding. Since then Senate voting rules and requirements have changed as have the criteria on which the Senators base their voting decisions.
Over time, additional states led to additional Senators and changes in the absolute number of votes required to confirm or reject candidates. Through the history of nominations, seventy-three Justices have been confirmed by voice votes (to either associate positions or elevated within the Court). Fifty have been confirmed by Senate roll-call votes. Only thirteen Justices have been rejected out of hand although no vote was even held in fourteen other instances (think Harriet Miers). The current pending nomination of Judge Gorsuch to the Supreme Court brings up many questions that also affected prior confirmation processes.
Some of these questions go to a nominee’s qualifications. Others deal with partisanship in Congress. Still more are rooted in the appointing president. This brief article provides historic clarity to some of these questions as well as (hopefully) additional context to the Gorsuch confirmation process. Much of the data comes from the Supreme Court Justices Database Project.
How successful have Presidents been over time with their nominations? Who has been most successful? The least? The graph below looks at successes and failures by appointing President.
It makes intuitive sense that the first president, George Washington, had the most confirmed nominees of all Presidents. The Supreme Court was formed based on a six Justice model. This increased over time to ten and then decreased to nine which is the size decreed by the current statute.
In historic terms, recent Presidents have not made an overwhelming relative number of nominations to the Court, although part of this is related to the two-term Presidential limit established by the Twenty-Second Amendment in 1951. Looking across Presidents, President Franklin Roosevelt was the most successful based on his nominations with nine confirmations and no rejections, followed by President Taft who made six successful nominations with no rejections. On the opposite end of the spectrum President Tyler had eight rejections and only one successful nominations.
Why are some Presidents more successful at having their nominees confirmed than others? One reason has to do with the party of the President and that of the majority of the Senate. Theoretically a President of the same party as the majority of the Senate should have more success with nominations than a President of a different party – especially if the voting requirements are only a bare majority vote in the Senate. The table below catalogs rejected nominees based on whether or not the President’s and Senate’s parties were aligned.
As the table shows, historically, many failed nominations came during times of a divided government in this fashion including all of President Tyler’s rejections. Now, however, the party of the majority of the Senate is aligned with the President. The Senate voting rule will play a pivotal role in the current confirmation process as the requirement for confirmation – either three-fifths majority or a base majority – will necessarily dictate the outcome.
We are currently in one of the most partisan political environments of all time. This partisanship is highlighted within Congress. In the current confirmation process, all Republicans and three Democrats pledged support for the Gorsuch nomination. Under current voting requirements, this does not meet the sixty vote threshold. Since this tabulates to fifty-five votes though, it secures a bare majority which is likely going to be the decisive number of votes necessary to secure a confirmation as the Senate is likely to amend the current majority vote rules.
Over the history of the Court and as described above, many of the confirmations were through voice votes where we lack accurate counts of the Senators votes to confirm or reject a nominee. For the nominees who went to roll-call votes we have the disparity of votes between Senators voting to confirm and to reject the nominee.
Justice Stanley Matthews, nominated in 1881, was the Justice confirmed with the slightest majority of only one vote. Justice Fortas lost in his bid for Chief Justice with a two-vote majority. Jeremiah Black, nominated in 1861 by President Buchanan was the only nominee to be rejected by a single vote against him. Justice Thomas is the only modern Justice to be confirmed by a four (or fewer) vote majority. Other Justices confirmed by less than ten votes (the number needed under the current rules for confirmation although this is relative to the 100 seat Senate) include Justices Clifford (nominated 1857), Lamar (nominated 1887) and Smith (nominated 1837).
Hearing Length and Candidate Quality
Two other factors recently mentioned in relation to the Gorsuch confirmation include the length of the confirmation hearings and the ABA Quality Score of the candidate. Compared to other nominees, Judge Gorsuch is in good shape both with a highly qualified rating from the ABA and with four days of confirmation hearings. Since the ABA has put out ratings of Supreme Court nominees, it has rated candidates with the lower ranking of “qualified” only three times.
Of the three times, two include Justices Thomas and Rehnquist (the rating for Rehnquist was when he was nominated to the associate Justice position). The third was Nixon nominee, Harrold Carswell, who although ranked “qualified” by the ABA, had six more votes against his nomination than for it. Finally, although Robert Bork was rated by the ABA as highly qualified, the rating committee was divided with several members voting to classify Bork as “not qualified.”
In terms of hearing length there is a noticeable correlation between longer hearings and rejected nominees.
Although Justice Brandeis who sat through the longest set of hearings was eventually confirmed, many nominees with lengthy hearing processes were not as successful. These include Bork, Thornberry, Fortas (for Chief Justice), and Haynsworth.
The Gorsuch confirmation has a variety of intriguing components. Although prior nominees have been confirmed with disparities of less than five votes, this list includes only a small minority of prior nominees. The current tenor of the Senate with fervent partisanship is not likely to go away soon which brings with it the possibility of at least several more confirmations to the Supreme Court by less than three-fifths majorities. This will make it increasingly important for nominating presidents to lead at a time when Senate majorities are of the same party if they should have any hope of future confirmations.
On Twitter: @AdamSFeldman
Fixes to Senate/President alignment table: 4/5/2017