Supreme Court Nominations: Senate Floor Procedure and Practice, 1789-2005

Publication Date: January 2006

Publisher: Library of Congress. Congressional Research Service

Author(s):

Research Area: Government

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Abstract:

From 1789 through 2005, the President submitted to the Senate 157 nominations for positions on the Supreme Court (exclusive of the nomination of Samuel Alito, still pending at the end of 2005). Of these nominations, 145 received consideration on the floor of the Senate, and 121 were confirmed.

Senate floor consideration of the 145 nominees to reach the floor breaks down relatively naturally into five patterns over time. First, from 1789 through about 1834, the Senate considered the nominations on the floor a day after they were received from the President. The second period (1835-1867) was distinguished by the beginning of referral of nominations to the Senate Committee on the Judiciary. The third period (1868-1921) was marked by rule changes that brought about more formalization of the process. During the fourth period (1922-1967), the Senate began using the Calendar Call to manage the consideration of Supreme Court nominations, and the fifth and final time period, 1968 to the present, is marked by more roll call votes on confirmations and the use of unanimous consent agreements to structure debate.

Of the 121 votes by which the Senate confirmed nominees, 75 took place by voice vote and 46 by roll call, but on only 22 of the roll calls did 10 or more Senators vote against. Of the 36 nominations not confirmed, the Senate rejected 11 outright, and 12 others never received floor consideration (some because of opposition; others were withdrawn). The remaining 13 reached the floor but never received a final vote, usually because some procedural action terminated consideration before a vote could occur (and the President later withdrew some of these). Including nominations that received incomplete consideration, were rejected, or drew more than 10 negative votes, just 47 of the 157 experienced opposition that might be called "significant."

Of the 145 nominations that reached the floor, 100 received one day of consideration, while 24 received more than two days, including four on which floor action took seven days or more. Of these 145 nominations, optional procedural actions that could have been used to delay or block a confirmation vote occurred on 55, of which 25 involved procedural roll calls. Among a wide variety of procedural actions used, the more common ones have included motions to postpone and recommit, live quorum calls, and unanimous consent agreements.

Neither extended consideration, the presence of extra procedural actions, nor the appearance of "significant" opposition affords definitive evidence, by itself, that proceedings were contentious. Some nominations considered for one day still faced procedural roll calls, and some considered for three days or more faced no optional procedures. On the other hand, nominations that underwent both more than two days of consideration and procedural roll calls were also most likely to experience "significant" opposition. At the other extreme, 76 of the 145 nominations to reach the floor were confirmed in a single day of action with neither optional procedural actions nor more than scattered opposition. This report will be updated to reflect action on additional nominees.