Speed of Presidential and Senate Actions on Supreme Court Nominations, 1900-2006







Prepared for Members and Committees of Congress



The speed with which appointments to the Supreme Court move through various stages in the
nomination-and-confirmation process is often of great interest not only to all parties directly
involved, but, as well, to the nation as a whole. Shortly after his October 31, 2005, nomination of
Samuel A. Alito Jr. to fill the Associate Justice seat being vacated by Sandra Day O’Connor,
President Bush called on the Senate to “act promptly on this important nomination so that an up
or down vote is held before the end of this year.” On November 3, 2005, Judiciary Committee
Chairman Arlen Specter and Ranking Member Patrick Leahy announced that hearings on the
Alito nomination would begin on January 9, 2006, with final Senate action scheduled for January
20, 2006. Judiciary Committee hearings on the Alito nomination began and concluded as
scheduled. Although the schedule announced in November 2005 called for a committee vote on
the nomination on January 17, the committee vote was postponed until January 24, 2006. The full
Senate confirmed Judge Alito by a vote of 58-42 on January 31, 2006, making him the nation’s th

110 Supreme Court Justice.


This report provides information on the amount of time taken to act on all Supreme Court
nominations occurring between 1900 and the present. It focuses on the actual amounts of time
that Presidents and the Senate have taken to act (as opposed to the elapsed time between official
points in the process). For example, rather than starting the nomination clock with the official
notification of the President of a forthcoming vacancy (e.g., via receipt of a formal retirement
letter), this report focuses on when the President first learned of a Justice’s intention to leave the
Court (e.g., via a private conversation with the outgoing Justice), or received word that a sitting
Justice had died. Likewise, rather than starting the confirmation clock with the transmission of the
official nomination to the Senate, this report focuses on when the Senate became aware of the
President’s selection (e.g., via a public announcement by the President).
The data indicate that the entire nomination-and-confirmation process (from when the President
first learned of a vacancy to final Senate action) has generally taken almost twice as long for
nominees after 1980 than for nominees in the previous 80 years. From 1900 to 1980, the entire
process took a median of 59 days; from 1981 through 2006, the process took a median of 113
days. Although Presidents after 1980 have moved more quickly than their predecessors in
announcing nominees after learning of vacancies (a median of 12 days compared with 34 days
before 1980), the Senate portion of the process (i.e., from the nomination announcement to final
Senate action) now appears to take much longer than before (a median of 84 days from 1981
through 2006, compared with 17 days from 1900 through 1980). Most notably, the amount of
time between the nomination announcement and first Judiciary Committee hearing has more than
tripled—from a median of 12.5 days (1900-1980) to 52 days.
This report will be updated as additional historical information becomes available or another
Supreme Court vacancy is announced.






Introduc tion ..................................................................................................................................... 1
Recent Nominations........................................................................................................................1
The Roberts Nomination...........................................................................................................2
The Miers Nomination..............................................................................................................3
The Alito Nomination...............................................................................................................4
Measuring the Pace of Supreme Court Appointments.....................................................................4
Official and Unofficial Timetables............................................................................................5
Objectives of This Report.........................................................................................................6
How Supreme Court Vacancies Occur............................................................................................7
Death of a Sitting Justice...........................................................................................................7
Retirement or Resignation of a Sitting Justice..........................................................................7
Nomination of a Sitting Justice to Another Position.................................................................8
Controversial, Withdrawn, and Rejected Nominations.............................................................9
Data Presentation.............................................................................................................................9
Date of Actual or Prospective Vacancy...................................................................................10
Announcement-of-Nominee Date............................................................................................11
Use of Medians to Summarize Intervals............................................................................11
The Duration of the Nomination-and-Confirmation Process..................................................12
Changes Since 1981..........................................................................................................12
Factors Influencing the Speed of the Process..........................................................................14
How the Vacancy Occurs..................................................................................................14
The Senate’s Schedule......................................................................................................15
Committee Involvement and Institutional Customs..........................................................16
Controversial Nominations...............................................................................................18
Discussion and Conclusions....................................................................................................18
Figure 1. Speed in Days of Intervals Surrounding Supreme Court Nominations and
Confir ma tions ............................................................................................................................. 13
Table 1. Major Events in the Supreme Court Nomination-and-Confirmation Process,
1900-2006................................................................................................................................... 20
Table 2. Duration in Days Between Major Events in the Supreme Court Nomination-and-
Confirmation Process, 1900-2006..............................................................................................30
Table 3. Median Duration in Days Between Major Events in the Supreme Court
Nomination-and-Confirmation Process, 1900-2006..................................................................42





Author Contact Information..........................................................................................................44






The nomination and confirmation of a Chief Justice or an Associate Justice to the U.S. Supreme
Court is an infrequent event of major significance in American public life. To receive what may
be lifetime appointment to the Court, a candidate must first be nominated by the President and
then confirmed by the Senate. Midway in the appointment process, intensive hearings on a
Supreme Court nomination, often taking at least three or four days, are routinely held by the
Senate Judiciary Committee, which then can vote on whether to report the nomination to the
Senate with a favorable recommendation.
Nominating and confirming Supreme Court Justices is an interdependent process. Neither the
President nor the Senate acts alone. The decisions that each branch makes determine how quickly
nominations are made and considered, and whether the nomination is successful. This report
provides information on the pace of all Supreme Court nominations and confirmations since
1900, focusing on the actual amounts of time that Presidents and the Senate have taken to act (as
opposed to the elapsed time between official points in the process). Events during 2005 and early

2006 underscored concerns about the speed with which the President makes Supreme Court 1


nominations and the Senate acts on those nominations.

Late 2005 and early 2006 marked a period of transition among Supreme Court Justices. Associate
Justice Sandra Day O’Connor’s July 2005 retirement announcement marked the first pending
Court vacancy since 1994. Within a few months, however, the Senate considered three
nominations. As is discussed below, Judge John G. Roberts was initially nominated to replace
O’Connor, but that nomination was withdrawn when Chief Justice William H. Rehnquist died in
early September. The Roberts nomination was withdrawn and re-submitted for the Chief Justice
vacancy. The Senate confirmed Roberts in September 2005. Then-White House Counsel Harriet
Miers was initially nominated to fill the again-pending O’Connor vacancy, but the Miers
nomination was eventually withdrawn. Judge Samuel Alito was confirmed to the O’Connor seat
in January 2006.
As is noted throughout this report, media accounts and other research suggest that when these and
other Court vacancies arise, the President, members of the Senate, and their staffs, can begin
work on nominations immediately, even if official nominations are days or weeks away.
Particularly when multiple vacancies occur in close succession or simultaneously, as they did in
2005, the President and the Senate might have different preferences about how quickly new
nominees should be considered. Until 1980, the President often took longer to announce a
nominee than the Senate did to take final action on nominees. By contrast, since 1981, Presidents
have been quicker to announce nominations than the Senate has been to confirm or reject those
nominations. The President and members of the Senate (especially the Judiciary Committee) each
proposed their own timetables regarding the Roberts, Miers, and Alito nominations. The
following discussion provides additional details.

1 For a discussion of official actions for all Supreme Court nominations since 1789, see CRS Report RL33225, Supreme
Court Nominations, 1789 - 2006: Actions by the Senate, the Judiciary Committee, and the President, by Denis Steven
Rutkus and Maureen Bearden.





On July 1, 2005, Associate Justice Sandra Day O’Connor surprised many in official Washington,
and possibly President George W. Bush, with a one-paragraph letter announcing her retirement 2
from the Supreme Court, effective upon the confirmation of her successor. Her announcement
created the first vacancy on the Court in 11 years. The Court had just concluded its 2004-2005
term, and the opening session of the Court’s next term, on October 3, 2005, was three months
away. Finding a new Associate Justice took on added urgency, given the failing health of then-
Chief Justice William H. Rehnquist. Departure of the Chief Justice as well as Justice O’Connor
could result in the need for two Court appointments, and create the possibility of at least one
vacancy on the Court when it reconvened in October—unless the new appointments were made
expeditiously.
Hours after Justice O’Connor announced her retirement, a senior aide to Senate Majority Leader
Bill Frist told reporters that, “Our goal is to have the court back at full strength by the first
Monday in October.” Senate Judiciary Committee staff were reportedly “poised to begin 3
reviewing background materials” on potential nominees. Nevertheless, appointment of a new
Justice in time for the Court’s opening session seemed like a challenging goal. In recent years, the
Senate Judiciary Committee, and the full Senate as well, had been embroiled in controversies
over some of the President’s nominations to the lower federal courts. Continued controversy
seemed likely surrounding any future nominations to the Supreme Court.
On July 19, 2005, 18 days after receiving Justice O’Connor’s retirement letter, President Bush
announced his selection of John G. Roberts, Jr., a federal appellate judge, to be the next Associate
Justice. Ten days later, on July 29, the President formally nominated Judge Roberts to the Court,
with the nomination document immediately transmitted to the Senate, where it was referred to the
Senate Judiciary Committee. Hearings on this nomination were scheduled to begin September 6,
but those hearings would never take place.
When Chief Justice William H. Rehnquist died on September 3, Judge Roberts became the first
Supreme Court nominee to be withdrawn by the President for one seat on the Court and re-
nominated for another. The Senate Judiciary Committee quickly cancelled its Associate Justice
hearings, and began Roberts’s Chief Justice hearings on September 12, 2005. After receiving a
favorable 13-5 vote by the Judiciary Committee on September 22, the nomination of Judge
Roberts to be Chief Justice was confirmed by the Senate on the morning of September 29, 2005,
by a 78-22 vote. Later that day, the confirmed nominee took both his constitutional and judicial 4
oaths of office at the White House.
Due to the speed with which Judge Roberts was nominated to be Chief Justice and considered by
the Senate Judiciary Committee and the full Senate, his appointment was completed in time for
the Court to be at full strength at the start of its 2005-2006 term. With the start of that term,

2 Justice O’Connor’s retirement letter is available at http://www.supremecourtus.gov/publicinfo/press/
oconnor070105.pdf.
3 “Senate GOP Leaders Seek Quick Action on Nominee to Replace Justice O’Connor, Daily Report for Executives,
July 5, 2005, p. A-33.
4 The judicial oath is required by the Judiciary Act of 1789, and the constitutional oath (which is administered to
Members of Congress and all executive and judicial officers) is required by Article VI of the Constitution of the United
States.





Justice O’Connor remained on the Court, in keeping with the intention stated in her retirement
letter of stepping down only upon the confirmation of her successor. For his part, President Bush
had declined to name a replacement for John Roberts to succeed Sandra Day O’Connor prior to
the Senate vote on September 29 confirming Judge Roberts as Chief Justice.
On October 3, 2005, President Bush announced his nomination of White House Counsel Harriet
E. Miers to succeed Sandra Day O’Connor as Associate Justice on the Supreme Court. The
President said that the Senate had shown during the confirmation of Chief Justice Roberts that it
could act promptly, and called upon the Senate to “review [Miers’s] qualifications thoroughly and 5
fairly and to vote on her nomination promptly.” At a press conference the next day, the President
said that he expected the Senate “to hold an up-or-down vote on Harriet’s nomination by 6
Thanksgiving” (i.e., by November 24, 2005). Similarly, Senate Majority Leader Bill Frist called
on his colleagues to move “expeditiously but carefully,” and encouraged a floor vote “by 7
Thanksgiving.” Several news reports suggested that confirmation hearings could begin as early
as November 7, 2005. Senator Arlen Specter, Chairman of the Senate Judiciary Committee, 8
reportedly told reporters that he hoped the committee would complete hearings by Thanksgiving,
but also reportedly emphasized that “thoroughness will be the objective,” as opposed to meeting a 9
particular timetable. He also reportedly said that the timing of hearings on the nomination would
in part be up to Miers, who would have to study “so that she would have the grasp of these very 10
complex decisions.”
On October 27, 2005, Miers delivered a letter to the President withdrawing her nomination as 11
Associate Justice, and the President “reluctantly accepted” her withdrawal. Both Miers and the
President indicated that the action was precipitated by the Senate’s request for documents about
her service in the White House. However, others suggested that other factors may have been 12
involved. In his statement accepting the withdrawal, the President said that he expected to fill
the vacancy “in a timely manner.”

5 See http://www.whitehouse.gov/news/releases/2005/10/20051003.html for the President’s nomination statement and
Miers’s remarks.
6 See http://www.whitehouse.gov/news/releases/2005/10/20051004-1.html for the text of this press conference.
7 See http://frist.senate.gov/index.cfm?FuseAction=Speeches.Detail&Speech_id=293 for a copy of Senator Frist’s
statement.
8 Kimberly Heffling, “Specter Decries BushPummeling’ on Miers,Washington Post, Oct. 11, 2005
http://www.washingtonpost.com/wp-dyn/content/article/2005/10/11/AR2005101101310.html.
9 John Stanton, “Leaders Seeking To Place Miers On Court By Thanksgiving, CongressDailyPM, Oct. 3, 2005.
10 Sheryl Gay Stolberg, “Some Liberals and Conservatives Find Themselves in Awkward Spots, New York Times, Oct.
4, 2005, p. A23.
11 For a copy of the President’s statement, see http://www.whitehouse.gov/news/releases/2005/10/20051027-2.html.
12 For example, former Senator Daniel R. Coats, who shepherded Miers in the Senate, said “It was not all about the
documents. It was a cumulation of things. See Keith Perine and Seth Stern, “Bush Faces Dilemma With New Pick,
CQ Today, Oct. 27, 2005. See http://www.cq.com/display.do?dockey=/cqonline/prod/data/docs/html/news/109/
news109-000001936032.html@allnews&metapub=CQ-NEWS&searchIndex=0&seqNum=1.





Four days after Harriet Miers’s withdrawal, on October 31, 2005, President George W. Bush
announced his nomination of Samuel A. Alito, Jr., a judge on the U.S. Court of Appeals for the
Third Circuit, to replace Justice O’Connor. President Bush called on the Senate to “act promptly 13
on this important nomination so that an up or down vote is held before the end of this year.”
Senate Majority Leader Bill Frist also predicted a relatively quick timetable for Senate 14
consideration, but other Senators, including Minority Leader Harry Reid, suggested that Senate 15
consideration of the nomination could last into the new year.
On November 3, 2005, Senate Judiciary Committee Chairman Arlen Specter and Ranking
Minority Member Patrick Leahy announced that confirmation hearings on Judge Alito’s
nomination would not begin until January 9, 2006, with a vote by the committee scheduled for
January 17, 2006, after five days of hearings. They said that the full Senate would vote on the 16
nomination on January 20, 2006. Judiciary Committee hearings on the Alito nomination began
and concluded as scheduled, although a targeted January 17 committee vote was postponed until
January 24, 2006. A final floor vote was anticipated before President George W. Bush’s January 17
31, 2006, State of the Union address. After Senators Specter and Leahy reportedly reached
agreement on the revised committee schedule over the January 14-16 weekend, Majority Leader
Bill Frist announced that “as soon as the Judiciary Committee reports the nomination, the full
Senate will begin debate on Judge Alito the next day and move swiftly to a fair up-or-down 18
vote.” Voting mainly along party lines (10-8), the Senate Judiciary Committee reported Alito’s
nomination to the full Senate on January 24, which confirmed Alito (58-42) on January 31, 2006.


For many Supreme Court appointments, the timing of individual events is determined by the
decisions of various key players—by sitting Justices planning to leave the Court; by the
President, who selects nominees to fill Court vacancies; and by Senate committee and party
leaders, who respectively schedule committee and floor action on Supreme Court nominations.
First, Justices who retire or resign from the Court must decide whether to provide the President

13 For President George W. Bush’s nomination remarks and Judge Alito’s response, see http://www.whitehouse.gov/
news/releases/2005/10/print/20051031.html.
14 For a copy of Senator Frist’s press release, see http://frist.senate.gov/
index.cfm?FuseAction=PressReleases.Detail&PressRelease_id=2144&Month=10&Year=2005.
15 See The Associated Press, “Reaction to the Alito Nomination,” Washington Post, Oct. 31, 2005, available at
http://www.nexis.co m/ research /home? ke y=1130786095&_session=9 eef720a-4 a42-11da-9 394-
00008a0c593e.1.3308238895.29 6188.%20.0.0 &_ state=&wchp=dGLb Vtb-
zSkBl&_md5=93f06c0fe1c37fbd5b4c52fe4519bbbb.
16 SeeSenate Judiciary Will Begin Alito Hearings Jan. 9, Vote Jan. 17; Floor Vote Set Jan. 20, “Daily Report for
Executives, Nov. 4, 2005, available at http://ippubs.bna.com/ip/BNA/DER.NSF/
9311bd429c19a79485256b57005ace13/819c3d1e4ca734da852570af0010aeaf?OpenDocument]. For a transcript of
Senators Specter and Leahys remarks, see http://www.cq.com/display.do?docid=1948157.
17 Amy Goldstein, “Senate Panel’s Vote on Alito Delayed Until Next Week,” Washington Post, Jan. 17, 2006, p. A3.
18 For a copy of Senator Frists Jan. 16, 2006, press release, see http://frist.senate.gov/
index.cfm?FuseAction=PressReleases.Detail&PressRelease_id=2221&Month=1&Year=2006.





with advance notice of that decision. For example, Justice Harry A. Blackmun told President
William J. Clinton of his decision to retire in 1994, more than four months before the decision 19
became public on April 6 of that year. Justice O’Connor, on the other hand, did not appear to
have given President George W. Bush any advance notice when she resigned on July 1, 2005.
Also, the mode of presidential notification varies. While President Clinton learned of Justice
Blackmun’s plans to retire through an informal conversation, Justice O’Connor apparently
notified President Bush of her decision through a formal letter.
Once the President chooses a nominee, he alerts the Senate—by public announcement as well as
by formal transmission of a written nomination to the Senate. Frequently, the President will
announce and formally nominate his Supreme Court choice on the same day, or take both actions
within a few days of each other. Less commonly, Presidents announce their intention to nominate
a candidate, then make the official nomination a week or more later. The most extreme case of the
latter involved President Ronald Reagan in 1981. On July 7 of that year, President Reagan
announced he would send the nomination of Sandra Day O’Connor, then an Arizona state appeals
court judge, to the Senate “upon completion of all the necessary checks by the Federal Bureau of 20
Investigation.” However, it was not until almost six weeks later, on August 19, that Judge 21
O’Connor was officially nominated. As noted above, after the Senate receives a Supreme Court
nomination, the Judiciary Committee normally holds hearings, followed by final committee
action, and consideration before the full chamber.
The measurement of how long the President and the Senate take to execute their official duties
surrounding Supreme Court nominations necessarily focuses on official dates of action taken. The
most important of these action dates include those on which (1) an outgoing Justice officially
informs the President of the intention to step down from the Court (or, alternatively, the date on
which a Court seat is vacated due to the death of a Justice), (2) a President formally nominates
someone to the Court, the Senate receives the President’s nomination, and the nomination is 22
referred to the Senate Judiciary Committee (almost always all on the same date), (3) the Senate
Judiciary Committee holds hearings on the nomination, (4) the committee votes on the
nomination, and (5) the Senate votes on whether to confirm, or chooses to take no action.
In addition to these dates, however, the President and the Senate usually consider Supreme Court
nominations outside official timetables. Just as the President can begin considering a new
nominee as soon as he knows a vacancy will arise, the Senate can begin preparing to consider a
nominee as soon as the President announces his choice, even if the receipt of the formal
nomination is still days or weeks away. Fundamentally, nominations and confirmations to the
Supreme Court involve both formal and informal decisions. While formal decisions are easily

19 U.S. National Archives and Records Administration, Office of the Federal Register, Public Papers of the Presidents
of the United States: William J. Clinton, 1993, vol. 1 (Washington: GPO, 1994), p. 597.
20 U.S. National Archives and Records Administration, Office of the Federal Register, Public Papers of the Presidents
of the United States: Ronald Reagan, 1981 (Washington: GPO, 1982), p. 596.
21 U. S. Congress, Senate, Journal of the Executive Proceedings of the Senate of the United States of America, 97th
Cong., 1st sess., Aug. 19, 1981 (Washington: GPO, 1982), p. 644.
22 Although these three events usually occur on the same day, a nomination sometimes, on rare occasions, is received
by the Senate on a day after it was signed by the President, or is referred to the Judiciary Committee on a day after its
receipt by the Senate.





accessible in historical records, informal decisions—sparsely mentioned in the formal record, or
not mentioned at all—might, in many cases, provide better insight into how long the process truly
takes.
This report explores the speed of presidential and Senate decision-making surrounding
nominations to the Supreme Court from 1900 to the present. During this period, there were a total 23
of 60 vacancies and 66 nominees to the Court. The analysis concentrates on the period 1900-

2006 for two primary reasons: (1) relevant historical data for this period are much more readily 24


available and reliable than for earlier Court appointments, and (2) public confirmation hearings
for Supreme Court nominations before the Senate Judiciary Committee—an important phase in
the Supreme Court appointment process, and one of particular interest to this report—were th25
unheard of before the 20 century.
Although research on Supreme Court nominations often focuses on either presidential or Senate
decision-making, this analysis considers the time both institutions take to make decisions about,
and act on, nominees. The report also takes a unique approach in discussing—as well as can be
determined—how long Presidents actually take to decide who their nominees will be, and how
long the Senate actually takes to act on nominations. For example, rather than starting the
nomination clock with the official notification of the President of a forthcoming vacancy (e.g., the
receipt of a formal retirement letter), this analysis focuses on when the President first learned of
the vacancy (e.g., a private conversation with the outgoing Justice). Likewise, rather than starting
the confirmation clock with the transmission the official nomination to the Senate, this analysis
focuses on when the Senate became aware of the President’s selection ( e.g., by a public
announcement by the President).
In many cases, establishing precisely when a President knew that he would have the opportunity
to make a Supreme Court nomination is impossible. Such information might never have been
recorded or known by anyone except the President and his inner circle. However, historical
research reveals several instances when a President had advance knowledge of an impending
vacancy, well before the public announcement of a Justice’s intention to leave the Court. Data
sources used to determine when Presidents first knew of vacancies included historical
newspapers, official documents such as public presidential papers (which contain Justices’ 26
retirement letters to various Presidents), and CRS consultations with presidential libraries. Dates

23 For an analysis of all unsuccessful Supreme Court nominees, see CRS Report RL31171, Supreme Court Nominations
Not Confirmed, 1789-August 2006, by Henry B. Hogue. In addition to the unsuccessful nominations listed in that report
for the 1900-2006 period, the present report includes Judge Douglas H. Ginsburg as a an unsuccessful “nominee” since
one part of the report’s focus is on presidential announcements of nominees. President Reagan announced his intention
to nominate Judge Ginsburg in 1987, but Ginsburg withdrew his name from consideration before being officially
nominated. The Ginsburg case is briefly discussed later in this report.
24 This particularly is the case for coverage of Supreme Court appointments in on-line full-text historical newspapers,
where coverage, as might be expected, typically is found to be less comprehensive regarding the procedures of th
Supreme Court appointments farther back into the 19 century.
25 The earliest Supreme Court confirmation hearings held in open session were those in 1916 for the nomination of
Louis D. Brandeis to be an Associate Justice. See CRS Report RL31989, Supreme Court Appointment Process: Roles
of the President, Judiciary Committee, and Senate, by Denis Steven Rutkus.
26 CRS Knowledge Services Group Information Research Specialist Dana Ely, Karen Anson (Franklin D. Roosevelt
Library), Valoise Armstrong (Eisenhower Library), Joshua Cochran (Ford Library), Jennifer Evans (Nixon Presidential
(continued...)





cited throughout this report and in Table 1, Table 2, and Table 3, at the end of the report, are
based on that research.

The need for a new appointment to the Court arises when a Justice position becomes vacant, due
to death, retirement, or resignation, or when a Justice announces his intention to retire or resign. If
the vacated seat is that of the Chief Justice, the President, if he chooses, may nominate a sitting
Associate Justice to be Chief, thus setting the stage for the creation of an Associate Justice
vacancy as well. Vacancies on the Court also will occur if Justices resign to receive new
government appointments or to seek new government positions. When a nomination fails in the
Senate, the President must select a new nominee (unless the President chooses to re-nominate his
first choice).
Supreme Court Justices receive what may be lifetime appointments, “good Behaviour” being the 27
only constitutionally specified requirement for continued service. Lifetime tenure, interesting
work, and the prestige of the office result in Justices often choosing to serve as long as possible.
Historically, a number of Justices have died in office. Most recently, Chief Justice William H.
Rehnquist died on September 3, 2005, after battling thyroid cancer for almost a year. Death in th
office was common on the Court during the first half of the 20 century—14 of 34 vacancies
between 1900-1950. In fact, all five Court vacancies occurring between 1946 and 1954 were due
to death of a sitting Justice (see Table 1). Of the 23 vacancies since 1954, though, no Justice had
died while still on the Court until Chief Justice Rehnquist in 2005.
Since 1954, retirement has been by far the most common way in which Justices have left the
bench (19 of 23 vacancies occurring after 1954 resulted from retirements). Resignation (i.e., 28
leaving the bench before becoming eligible for retirement compensation) is rare. In recent

(...continued)
Materials), Sharon Kelly (Kennedy Library), Matthew Schaefer (Hoover Library), Randy Sowell (Truman Library),
Jennifer Sternaman (Reagan Library), Deborah Wheeler (George Bush Library), and Adam C. Bergfeld (Clinton
Library) provided consultations on this portion of the project.
27 U.S. Constitution, Article III, Section 1.
28 Under 28 U.S.C. §371, Supreme Court Justices, like other Article III (tenureduring good Behaviour) federal
judges, may retire, and be entitled to receive retirement compensation, in one of two ways—either by taking “senior
status” or by “retiring from office.” Beginning at age 65, they are entitled to receive retirement compensation, if having
served a minimum 10 years as an Article III judge, their age and overall Article III judicial experience totals 80 years.
(Hence, under thisRule of 80,” a Justice of age 65 must have served 15 years to become eligible for retirement
compensation; a Justice of age 66, 14 years; a Justice of age 67, 13 years; etc.) Judges who take senior status retire
from regular active service but retain their judicial office and the salary of the office, subject to annual certification of
their having performed certain judicial or administrative duties in the preceding year. Judges who retire from office
completely relinquish their judicial office with the right to a frozen lifetime annuity equal to the salary of the office at
the time of retirement. In contrast, a Justices resignation entails voluntarily relinquishing his or her judicial office
without meeting the age and service requirements of the Rule of 80 (and thus being ineligible to receive retirement
compensation). See U.S. Administrative Office of the United States Courts, Senior Status and Retirement for Article III
(continued...)





history, two Justices have resigned from the Court. Justice Arthur Goldberg resigned in 1965 to 29
assume the post of U.S. Ambassador to the United Nations. Justice Abe Fortas resigned in 1969
after protracted criticism over controversial consulting work while on the bench and a failed 30
nomination to be elevated from Associate Justice to Chief Justice. When Justices retire or
resign, the President is usually notified by formal letter. As noted previously, there is evidence in
a few cases that a President informally learned of a forthcoming retirement in advance.
Pursuant to a law enacted in 1939, a Justice (or any other federal judge receiving lifetime
appointment) may also retire if “unable because of permanent disability to perform the duties of 31
his office,” by furnishing the President a certificate of disability. Prior to 1939, specific
legislation from Congress was required to provide retirement benefits to a Justice departing the
Court because of disability who otherwise would be ineligible for such benefits, due to
insufficient age and length of service. In such circumstances in 1910, for instance, Congress took
legislative action granting a pension to Justice William H. Moody. As the Washington Post
reported at the time, although illness had kept Justice Moody from the bench for “almost a year,” 32
he was not yet eligible for retirement.
When a Chief Justice vacancy arises, the President may choose to nominate a sitting Associate
Justice for the Court’s top post. If the Chief Justice nominee is confirmed, he or she must, to
assume the new position, resign as Associate Justice, requiring a new nominee from the President
to fill the newly vacated Associate Justice seat. However, this scenario is relatively rare. During
the 1900-2006 period, Presidents attempted to elevate Associate Justices to Chief Justice four
times, with the Senate confirming three nominees. Most recently, in 1986, President Ronald 33
Reagan nominated then-Associate Justice William H. Rehnquist to be Chief Justice.
Presidents may also nominate sitting Justices to other political posts, which (if accepted) require
resignation from the Court. Between 1900 and 2006, three Justices resigned to pursue other
formal public service. In 1916, Justice Charles Evans Hughes resigned to pursue the Republican 34
nomination for President. Justice James F. Byrnes resigned on October 3, 1942, becoming

(...continued)
Judges, Apr. 1999 (Judges Information Series, No. 4), pp. vii-viii.
29 Carroll Kilpatrick, “Goldberg is Named to Stevenson Post, Washington Post, July 21, 1965, p. A1.
30 On the controversies surrounding Justice Fortass nomination and resignation, see Artemus Ward, Deciding to
Leave: The Politics of Retirement from the United States Supreme Court (Albany: State University of New York Press,
2003), pp. 171-175; and Philip Warden and Aldo Beckman, “Fortas Agrees to Quit, Nixon Aide Says,” Chicago
Tribune, May 15, 1969, p. 7.
31 The law provides that a Justice retiring under these provisions shall receive for the remainder of his lifetime “the
salary he is receiving at the date of retirement or, if his service was less than ten years, one-half of that salary. Act of
August 5, 1939, ch. 433, 53 Stat. 1204-1205; 28 U.S.C. §372(a).
32Moody Will Retire, Washington Post, June 15, 1910, p. 1.
33 The other Associate Justices nominated for Chief Justice during the period were: Edward D. White (1910), Harlan F.
Stone (1941), and Abe Fortas (1968). As noted previously, Justice Fortas’s nomination failed to receive Senate
confirmation.
34 “Hughes, With Words That Ring, Obeys Call to Lead Republicans,Washington Post, June 11, 1916, p. 1.





Director of Economic Stability for President Franklin D. Roosevelt.35 As noted previously, Justice
Arthur Goldberg resigned in 1965 to become the U.N. Ambassador.
When any Court nomination (whether for an Associate or Chief Justice seat) fails in the Senate,
the President may either re-submit the nomination or choose another candidate to fill the bench.
The entire process thus begins anew. Withdrawals and rejections can greatly increase the amount
of time taken to confirm Justices to the Court. Controversial nominees who are eventually
confirmed also usually take more time to consider. The late 1960s and early 1970s were one of
the most tumultuous periods of nominations and rejections in the Court’s history. On May 14,
1969, Justice Abe Fortas resigned from the bench. Fortas had been embroiled in a scandal
surrounding his consulting income, and failed to win confirmation as Chief Justice when 36
President Johnson nominated him to the seat in 1968. Previously, on October 14, 1968,
President Johnson had withdrawn the Fortas nomination as well as the nomination of Homer
Thornberry to fill the vacancy that would have been created by Fortas’s elevation. The Senate
rejected President Richard M. Nixon’s first two nominees to the Fortas seat—Clement F. 37
Haynsworth, Jr. and G. Harrold Carswell. President Nixon’s third choice, Harry A. Blackmun,
was not confirmed until May 12, 1970—almost a year after Fortas’s resignation.

Table 1 (at the end of this report) lists dates for the following events regarding each nomination
to the Supreme Court since 1900: (1) when the actual or prospective vacancy apparently became
known to the President, (2) when the President announced the nominee, (3) when the Senate
Judiciary Committee held its first hearing on the nominee, (4) when final committee action took
place, and (5) when final Senate action took place. Table 2 presents the number of days elapsed
for six related time intervals: (1) from when the President apparently learned of the actual or
prospective vacancy to the his announcement of a new nominee, (2) from the nomination
announcement to the first Judiciary Committee hearing, (3) from the first hearing to the
committee’s final action, (4) from the committee’s final action to the Senate’s final action, (5)
from nomination announcement to final Senate action (duration of total Senate action), and (6)
from the vacancy starting date (when the President apparently first became aware of the
opportunity to make a nomination) to final Senate action. Table 3 provides summary statistics for
the number of days elapsed during each of these intervals, for all nominations from 1900 until 38
2006, and for two periods within those dates—1900-1980 and 1981-2006. As discussed later in

35 Associated Press, “Byrnes Resigns From Bench in Letter to President,New York Times, Oct. 4, 1942, p. 45.
36 On the controversies surrounding Justice Fortass nomination and resignation, see Ward, Deciding to Leave, pp. 171-
175; and Philip Warden and Aldo Beckman, “Fortas Agrees to Quit, Nixon Aide Says,” Chicago Tribune, May 15,
1969, p. 7.
37 Haynsworth and Carswell were both rejected due to Senate doubts about their personal views and professional
qualifications. For a summary of these and other cases of rejected Supreme Court nominees, see CRS Report RL31171,
Supreme Court Nominations Not Confirmed, 1789-August 2006, by Henry B. Hogue.
38 In Table 3, the median amount of time from vacancy to final Senate action within each time period does not
necessarily equal the sum of the medians for each stage in the nomination-and-confirmation process. Likewise, the
median lengths of time for all Senate actions (i.e., from nomination announcement to final Senate action) within each
time period do not equal the sum of the medians for each stage. The median identifies the mid-point for individual sets
(continued...)





this report, those periods were chosen because the data indicate a sharp difference in the pace of
most nominations before and after 1980.
As noted previously, it is often difficult or impossible to determine the specific date that a
President first knew he would have the opportunity to name a new Justice to the Supreme Court.
The President always has the constitutional obligation to make nominations to the Court when
vacancies arise, and is certainly aware of the possibility that vacancies could arise at any time.
However, the “Actual or Prospective Vacancy Became Known to President” columns in Table 1
and Table 2 focus on documented, specific instances when the President knew he had, or soon 39
would have, the opportunity to name a new Justice to the Court. These dates are based on
extensive research about when the Justice’s impending departure (or death) was made public, and
whether the President had advance knowledge of the vacancy before it became public. In cases in
which research revealed no public evidence that the President had advance notice (or in which the
data are inconclusive), the date of the first public account of the vacancy marks the beginning of 40
the process (the “When” column in Table 1 and Table 2).
For example, Justice Sandra Day O’Connor announced her retirement, pending confirmation of a
successor, on July 1, 2005. There is no evidence that President George W. Bush definitely knew
that O’Connor would retire until her announcement. Therefore, July 1, 2005, is used as the 41
starting point for what became the John G. Roberts Associate Justice nomination. On the other
hand, although Chief Justice Warren Burger’s retirement letter to Ronald Reagan was not released
until June 17, 1986, President Reagan’s public papers reveal that Burger informed the President 42
of his decision to retire on May 27, 1986. Therefore, May 27, 1986, is used as the starting point

(...continued)
of observations. Because each stage of the process can have a different number of observations, and because the data
are also not a “normal (i.e., “bell-shaped”) distribution, the sum of the medians for individual stages generally is not
equal to the median for the entire period. For more information, see chapter 4 in Ya-lun Chou, Statistical Analysis for
Business and Economics (New York: Elsevier, 1989).
39 In Table 1 and Table 2, actual vacancies are those that already have been announced or occurred (i.e., a sitting
Justice announces a retirement date or dies). Prospective vacancies, for the purposes of this report, are not merely
speculative. They require firm notice, either through notification from a sitting Justice or major media accounts, that a
Justice will leave the Court imminently, even if an exact date is not specified.
40 This report, it should be re-emphasized, bases the starting point at when Presidents apparently learned of actual or
prospective Court vacancies. These dates are based on published information or information obtained from presidential
archives. Readers should be alerted, as a caveat, that there might well have been instances, unreported at the time as
well as still unknown to present-day scholars, in which various Presidents privately were alerted of upcoming Court
vacancies or had reasons to believe that vacancies were imminent in advance of the starting dates listed in this report.
To the extent that such instances are unaccounted for, the full extent of time during which such Presidents were aware
of prospective Court vacancies and were able to consider future Court candidates before publicly announcing their
choices, is under-measured in this report.
41 As noted elsewhere in this report, President George W. Bush withdrew Roberts’s nomination as Associate Justice on
Sept. 5, 2005.
42 President Reagan had a private conversation with Chief Justice Burger on May 27, 1986, when Burger alerted the
President to his impending retirement (Remarks on the Resignation of Supreme Court Chief Justice Warren E. Burger
and the Nominations of William H. Rehnquist To Be Chief Justice and Antonin Scalia To Be an Associate Justice,
U.S. National Archives and Records Administration, Office of the Federal Register, Public Papers of the Presidents of
the United States: Ronald Reagan, 1986, vol. 2 (Washington: GPO, 1989) p. 781).





for what became the William H. Rehnquist elevation to Chief Justice. Notes throughout Table 1
and Table 2 provide information on historical context.
Unless otherwise noted, the “President’s Announcement-of-Nominee” date in Table 1 is the day
when the President announced his nomination to the public or released the text of his nomination
letter (whichever came first). This date is significant because it marks the Senate’s first
opportunity to begin considering the nomination, even if informally. There are a few cases,
explained by table notes, in which Presidents announced their decisions less formally, but still
publicly. For example, President Harry S. Truman casually told reporters during a July 28, 1949,
press conference that he had offered an Associate Justice nomination to then-Attorney General 43
Thomas C. Clark, even though Clark had not yet accepted the nomination. As discussed
previously, in some cases, the announcement date differs by days or even weeks from the date the
nomination was formally submitted to the Senate.
Table 2 provides the duration of each major interval in the process of nominating and considering 44
Supreme Court Justices. Table 3 provides the median number of days for each major interval in
the process. The median is the middle number in a set of observations (in this case, the number of
days involved in each stage of considering Supreme Court nominations). The median is generally 45
the preferred measure of central tendency in social science research. As statistician William H.
Greene notes, “Loosely speaking, the median corresponds more closely than the mean to the 46
middle of a distribution [group of numbers]. It is unaffected by extreme values.” In other words,
the median represents the best example of the “average” case, regardless of extremely short or
long individual confirmations.
However, in describing the speed of the Supreme Court nomination-and-confirmation process,
even median values should be considered carefully. Each nomination is different, and political
context and historical factors can have a major impact on when various events occur. Several
factors affecting individual nominations to the Court are discussed later in this report.

43 President Truman did not announce that Clark had accepted the nomination until Aug. 1, 1949 (Edward T. Folliard,
Clark Accepts High Court Proffer, Washington Post, Aug. 2, 1949), p. 1.
44 When calculating durations, the date on which the final event occurs is not counted as a full day. For example, if
committee hearings began on July 12 and the committee took its final action on July 13, the duration is one day, not
two. For cases in which durations are less than one day (i.e., the committee final action and final Senate vote took place
on the same day), the duration is listed as 0 days.
45 Although the arithmetic mean (the sum of all observations divided by the number of observations) is the true
average” number, it has the disadvantage of being skewed by extremely high or low values. For an introduction to
median versus mean and arguments surrounding when each should be used, see chapter 3 in Alan Agresti and Barbara rd
Finlay, Statistical Methods for the Social Sciences, 3 ed. (Upper Saddle River, NJ: Prentice Hall, 1997).
46 William H. Greene, Econometric Analysis, 5th ed. (Upper Saddle River, NJ: Prentice Hall, 2003, p. 847).





During the entire period covered by this report (1900-2006), the President and the Senate have
each taken varying amounts of time to act on Supreme Court nominations and confirmations. As
Table 3 shows, from 1900-2006, Presidents took a median of 28 days after a vacancy occurred to
announce their nominees, compared with a median of 22 days for final Senate action once the
nomination was announced. The entire process, from actual or prospective vacancy to final 47
Senate action, lasted a median of 76 days from 1900-2006.
However, the amount of time involved in each stage of the nomination-and-confirmation process
varies widely when individual cases are examined. Some Supreme Court nominations are
unusually fast, coming immediately on the heels a sitting Justice’s departure from the bench. In
these cases, the President almost certainly knew in advance of the outgoing Justice’s intention to
retire yet delayed announcement of the retirement to coincide with announcing a new nominee.
For example, on May 27, 1986, President Reagan simultaneously announced the retirement of
Chief Justice Warren Burger, the elevation of William H. Rehnquist to Chief Justice, and the
nomination of Antonin Scalia to assume the Associate Justice seat being vacated by Justice 48
Rehnquist. On the other hand, some nomination decisions can take months—at least to become
public. For example, although Justice Harold H. Burton submitted his retirement letter to
President Dwight D. Eisenhower on October 6, 1958, Eisenhower did not publicly announce
Potter Stewart’s nomination until January 17, 1959—103 days after announcing Justice Burton’s
retirement. The entire interval between Burton’s announced retirement and Stewart’s confirmation 49
lasted 211 days, the bulk of the interval due to a long congressional recess.
The data indicate that the median decision-making intervals surrounding Supreme Court 50
nominations have changed substantially since 1981. When comparing Supreme Court

47 Due to updated data in Table 1 and Table 2, some of the summary statistics here and in Table 3 have changed from
previous versions of this report. This version of the report does not include, when calculating the interval for total
Senate action (nomination announcement to final Senate action), cases in which nominations lingered in the Senate, but
for which the Senate took no final vote (e.g., the nomination was withdrawn, recommitted, etc.). If the Judiciary
Committee held hearings or held a final vote, those dates are included in median calculations.
48 As previously noted, although Chief Justice Burger, by letter on June 17, 1986, officially notified President Reagan
of his desire to retire, Burger privately informed Reagan of his plans on May 27, 1986 (Remarks on the Resignation of
Supreme Court Chief Justice Warren E. Burger and the Nominations of William H. Rehnquist To Be Chief Justice and
Antonin Scalia To Be an Associate Justice,” U.S. National Archives and Records Administration, Office of the Federal
Register, Public Papers of the Presidents of the United States: Ronald Reagan, 1986, vol. 2, p. 781).
49 Context provides important caveats, as is always the case when exploring median decision-making surrounding
Supreme Court nominations. President Eisenhower recess-appointed Justice Stewart because Congress was not in th
session on Oct. 6, 1958, when Justice Burton announced his retirement. The 85 Congress had adjourned sine die on
Aug. 24, 1958. The President nominated Potter Stewart to the Court on Jan. 17, 1959, after Congress had reconvened th
for the first session of the 86 Congress. Therefore, although the interval between the starting date (Oct. 6, 1958, as
shown in Table 1) and nomination date (Jan. 17, 1959) is 103 days, and the entire interval from the starting date until
final Senate action (May 5, 1959) is 211 days, the President’s actual decision-making timetable could also be classified
as eight days, or the interval between Burton’s retirement announcement (Oct. 6, 1958) and Eisenhower’s recess
appointment of Justice Stewart (Oct. 14, 1958). Both intervals are used to calculate the median elapsed time from
vacancy to nomination announcement. Nonetheless, the long intervals have a minimal impact on computing the median
durations between stages in the process because the median is less sensitive than the mean to extremely high or low
values.
50 For an analysis of the decision-making speed surrounding Supreme Court nominations between 1962-1987, see CRS
(continued...)





nominations from 1900-1980 with those from 1981-2006, five patterns stand out. First, after
apparently learning of vacancies, Presidents have typically been quicker to announce nominees
since 1981 than in the previous 80 years. As shown in Figure 1 (and Table 3), from 1900-1980,
Presidents took a median of 34 days to announce their nominees after apparently learning of
vacancies, compared with only 12 days from 1981-2006.
Second, and perhaps most notably, the median interval between the President’s announcement of
his nominee and the first Judiciary Committee hearing was substantially longer from 1981-2006
than from 1900-1980. As shown in Figure 1 (and Table 3), this period more than tripled—from
12.5 days during the 1900-1980 period to 52 days from 1981-2006. Again, however, context is
important. Even before hearings begin, the Senate can be actively working on the nomination. For
example, prior to the start of John G. Roberts’s hearings (and even before his nomination was
submitted to the Senate), Senators met privately with Judge Roberts, and some pressed the White 51
House to release records from Roberts’s Department of Justice service. The Harriet Miers and
Samuel Alito nominations followed similar patterns.
Figure 1. Speed in Days of Intervals Surrounding Supreme Court Nominations and
Confirmations
Source: Computations based on data compiled by the CRS authors. See Table 3 for rounding information.
Third, committee and floor action from 1981-2006 also took slightly longer than prior to 1981.
From 1981-2006, the Judiciary Committee took a median of 14 days to reach a decision after
starting hearings, while the interval between final committee action and final Senate action took
seven days (compared with six and three days respectively from 1900-1980).
Fourth, as shown in Figure 1 (and Table 3), total Senate activity (the interval between the
President’s announcement of the nominee and final Senate action) increased from a median of 17
days (1900-1980) to 84 days (1981-2006).

(...continued)
Report 87-576, The Speed With Which Action Has Been Taken on Supreme Court Nominations in the Last 25 Years, by
Denis Steve Rutkus (out of print but available from author).
51 See, for example, Charles Babington, “Access to Records May Be a Sticking Point; Democrats Push for Prompt
Review,” Washington Post, July 28, 2005, p. A6; and Mike Allen and Jo Becker, “A Clash Over Roberts Documents;
Justice Department Balks at Senate Democrats’ Demands, Washington Post, Aug. 7, 2005, p. A4.





Finally, the entire nomination-and-confirmation process took substantially longer after 1980 than
during the previous 80 years. The median duration for the entire process (from when the President
apparently became aware of a vacancy until the Senate’s final action on the nomination) was
almost twice as long from 1981-2006 than during 1900-1980 (113 days versus 59 days,
respectively).
Some elements of the decision-making process surrounding the naming and the confirmation or
rejection of Supreme Court nominees are known only to Presidents, nominees, and a few select
advisors. Other elements are more obvious. Each nomination has its own political context,
making each nomination somewhat different. However, several factors appear to be relatively
constant in affecting the speed of Supreme Court nominations and Senate decisions.
How quickly the President announces his nominee and how quickly the Senate considers that
nomination can depend on how the vacancy occurred. When Justices die unexpectedly, Presidents
can be eager to bring the Court back to full strength as soon as possible. On July 19, 1949, for 52
example, Justice Frank Murphy unexpectedly died of a heart attack after a brief illness.
President Harry S. Truman announced his nomination of Thomas C. Clark at a press conference 53
nine days later, on July 28. The Senate also considered the nomination quickly, beginning
hearings on August 9. Clark’s entire nomination-and-confirmation process lasted just 30 days. A
few months later, Sherman Minton was confirmed even faster—in 24 days—after the death of
Justice Wiley B. Rutledge. Nonetheless, sudden death does not guarantee that either the President
or the Senate will make nomination-and-confirmation decisions quickly. For example, when
Justice Rufus W. Peckham died unexpectedly on October 24, 1909, President William Howard
Taft waited 50 days to announce a nominee. Once Taft announced his choice, the Senate
confirmed Horace H. Lurton seven days later.
Retirements and resignations are often expected, allowing the President time to prepare for his
choice even before an official announcement that a sitting Justice will step down. For example, at
the time of ublic. For exa, Justice William O. Douglas’s health had been so poor and abilities
allegedly in such decline that seven of ublifellow Justices voted on October 17, 1975, to 54
“effectively strip Douglas of ublipower” and excluded the aging Justice from deliberations. By
the time Justice Douglas officially wrote to President Gerald R. Ford on November 12, 1975,
announcing hblic. For exa, the President was prepared to act quickly. He announced the
nomination of John Paul Stevens just 16 days later. Congress, too, acted quickly, confirming
Stevens 19 days later, on December 17, 1975.
Sometimes, though, even when retirements or resignations come with advance notice, the process
moves slowly. For example, Justice Harry A. Blackmun privately told President William J.

52 For a profile of Murphy and his death, see Chicago Daily Tribune, “Justice Murphy Dies of Heart Attack at 59,
Chicago Daily Tribune, July 20, 1949, p. 2.
53 President Truman did not announce that Clark had accepted the nomination until Aug. 1, 1949 (Edward T. Folliard,
Clark Accepts High Court Proffer, Washington Post, Aug. 2, 1949, p. 1).
54 Justice Byron R. White disagreed with the decision. See Ward, Deciding to Leave, p. 187.





Clinton around January 1, 1994, that he was planning to leave the Court. Soon afterward, the 55
White House staff began quietly considering replacements. However, President Clinton did not
publicly announce Justice Blackmun’s retirement until April 6, did not publicly announce Judge
Stephen G. Breyer’s nomination until May 13, and did not formally nominate Breyer until May 56
17. The Judiciary Committee began hearings 60 days after the nomination was announced, and
the entire process surrounding Breyer’s nomination lasted 209 days. However, decisions affecting
the nomination were apparently being made even before Blackmun’s retirement became public
knowledge.
Congress’s schedule, especially whether the Senate is in session at all, plays an important role in
how long Supreme Court nominations take to reach a conclusion. In the early 1900s, several
vacancies arose during summer recess or election years when Congress was away from the
Capitol. In 1910, for example, Congress adjourned on June 25 and did not return until December 57

5—a break of more than five months. In the interim, Chief Justice Melville W. Fuller died of a 58


heart attack on July 4. As press coverage noted at the time, although potential nominees were
immediately considered, President William Howard Taft waited to formally submit a nomination 59
to the Senate until Congress reconvened. On December 12, five days after the Senate
reconvened, President Taft announced and formally submitted to the Senate his nomination of
former Senator Edward D. White of Louisiana to be Chief Justice. That same day, without
referring the nomination to the Judiciary Committee, the Senate quickly confirmed Senator
White.
Three times during the 1950s, President Eisenhower resorted to recess appointments when 60
Justices died or announced their retirement after Congress had already adjourned for the year. In
each case, President Eisenhower formally submitted the nomination after the Senate convened the
following January. Of the five persons whom he nominated to the Court, three first received
recess appointments and served as Justices before being confirmed—Earl Warren (as Chief
Justice) in 1953, William Brennan in 1956, and Potter Stewart in 1958. President Eisenhower’s
recess appointments, however, generated controversy, prompting the Senate in 1960, voting
closely along party lines, to pass a resolution expressing opposition to Supreme Court recess 61
appointments in the future.

55 Tony Mauro, “How Blackmun Hid Retirement Plans, New Jersey Law Journal, Apr. 25, 1994, p. 18.
56 U.S. National Archives and Records Administration, Office of the Federal Register, Public Papers of the Presidents
of the United States: William J. Clinton, 1994, vol. 1 (Washington: GPO, 1995), p. 597.
57 U.S. Congress, Joint Committee on Printing, 2003-2004 Official Congressional Directory: 108th Congress
(Washington: GPO), p. 517.
58 “Justice Fuller Dies Suddenly, Washington Post, July 5, 1910, p. 1.
59 In addition to waiting for the Senate to return, President Taft reportedly considered more than 200 nominees, a far
more thorough process than the media predicted after Fullers death (ibid. and “White Heads Bench,” Washington Post,
Dec. 13, 1910, p. 1).
60 The discussion of recess appointments in the following two paragraphs is adapted from CRS Report RL31989,
Supreme Court Appointment Process: Roles of the President, Judiciary Committee, and Senate, by Denis Steven
Rutkus.
61 Adopted by the Senate on Aug. 29, 1960, by a 48-37 vote, S.Res. 334 expressed the sense of the Senate that recess
appointments to the Supreme Court “should not be made, except under unusual circumstances and for the purpose of
preventing or ending a demonstrable breakdown in the administration of the Court’s business. Proponents of the
resolution contended, among other things, that judicial independence would be affected if Supreme Court recess
(continued...)





President Eisenhower’s actions were the most recent recess appointments to the Supreme Court,
and recess appointments to the lower federal courts also have become relatively rare since the late

1960s. While a President’s constitutional power to make judicial recess appointments was upheld 62


by a federal court in 1985, such appointments, when they do occur, may cause controversy, in
large part because they bypass the Senate and its “advice and consent” role. Because of the
criticisms of judicial recess appointments in recent decades, the long passage of time since the
last Supreme Court recess appointment, and the relatively short duration of contemporary Senate
recesses (which arguably undercuts the need for recess appointments to the Court), a President in st
the 21 century might be expected to make a recess appointment to the Supreme Court only under 63
the most unusual of circumstances.
Today, Congress’s availability is less of an obstacle to speedy consideration of nominations than
in the past. Given Congress’s increasingly year-round schedule, extended decision-making is
more often the result of waiting for presidential decisions, background investigations of
nominees, or preparations for Judiciary Committee hearings.
Today, it would be highly unusual for the Judiciary Committee not to hold Supreme Court
confirmation hearings lasting at least a few days. In the past, however, the Judiciary Committee
often handled Supreme Court nominations without holding hearings at all. As Table 1 shows, of
the 22 nominees to the Court from 1900 to 1937, only three had Judiciary Committee hearings
(Louis D. Brandeis in 1916, Harlan F. Stone in 1925, and John J. Parker in 1930 (whose
nomination was eventually rejected)). In contrast, of the 41 nominees after 1937, only three did

(...continued)
appointees, during the probationary period of their appointment, took positions to please the President (in order not to
have the President withdraw their nominations) or to please the Senate (in order to gain confirmation of their
nominations). It also was argued that Senate investigation of nominations of these recess appointees was made difficult
by the oath preventing sitting Justices from testifying about matters pending before the Court. Opponents, however,
said, among other things, that the resolution was an attempt to restrict the President’s constitutional recess appointment
powers and that recess appointments were sometimes called for in order to keep the Court at full strength and to
prevent evenly split rulings by its members. SeeOpposition to Recess Appointments to the Supreme Court, debate in
the Senate on S.Res. 334, Congressional Record, vol. 106, Aug. 29, 1960, pp. 18130-18145. See also CRS Report
RL32971, Judicial Recess Appointments: A Legal Overview, by T. J. Halstead. For an overview of judicial recess
appointments during the George W. Bush presidency (none of which were to the Supreme Court), see CRS Report
RL33310, Recess Appointments Made by President George W. Bush, January 20, 2001-September 5, 2006, by Henry
B. Hogue and Maureen Bearden.
62 U.S. v. Woodley, 751 F.2d 1008 (9th Cir. 1985).
63 A notable, relatively recent instance in which the possibility of a recess appointment to the Supreme Court was raised
occurred on July 28, 1987, when Senate Minority Leader Robert Dole observed that President Reagan had the
constitutional prerogative to recess appoint U.S. appellate court judge Robert H. Bork to the Court. Earlier that month
Judge Bork had been nominated to the Court, and at the time of Senator Dole’s statement, the chair of Senate Judiciary
Committee, Sen. Joseph R. Biden, Jr. had scheduled confirmation hearings to begin on September 15. With various
Republican Senators accusing Senate Democrats of delaying the Bork hearings, Senator Dole offered as “food for
thought” the possibility of President Reagan recess appointing Judge Bork during Congresss August recess. See
Michael Fumento, “Reagan Has Power To Seat Bork While Senate Stalls: Dole, Washington Times, July 28, 1987, p.
A3; also, Edward Walsh, “Reagan’s Power To Make Recess Appointment Is Noted,Washington Post, July 28, 1987,
p. A8. Judge Bork, however, did not receive a recess appointment and, as a Supreme Court nominee, was rejected by
the Senate in a 58-42 vote on Oct. 23, 1987.





not have hearings.64 Nominees did not begin regularly testifying at their own hearings until John 65
M. Harlan did so in 1955.
When the Judiciary Committee holds hearings, Senate floor consideration can be pushed back
sometimes by weeks or even months. Controversial nominees often spur protracted hearings. For
example, the Judiciary Committee spent 19 days considering Justice Louis D. Brandeis’s
nomination in 1916, and the interval between the start of hearings and final committee action
lasted 105 days. The final Senate vote came eight days later. More recently, the Judiciary
Committee, after learning of President Ronald Reagan’s selection of Robert H. Bork, took 76
days to hold its first day of hearings on the nomination, and then 21 more days to conclude action
on the nomination.
Senate custom plays an especially large role when sitting or former Senators are nominated to the
Court. The Senate has almost always considered their colleagues’s nominations to the Court 66
within days of receiving the nomination, often without committee hearings or floor debate. For
example, although President Taft waited five months to nominate Edward D. White (a former
Senator from Louisiana) for Chief Justice, the Senate confirmed the nomination with no debate in 67
less than one hour. Since 1900, three sitting Senators—Hugo L. Black of Alabama (1937),
James F. Byrnes of South Carolina (1941), and Harold H. Burton of Ohio (1945)—have been 68
nominated to the Court, and all were quickly confirmed. Senators George Sutherland of Utah
(1922) and Sherman Minton of Indiana (1949) were nominated to the Court after having
concluded their Senate service. Sutherland was confirmed on the same day on which President
Warren Harding announced the nomination, and Minton was confirmed in 19 days.
The decades since 1945 have yet to test again the Senate tradition of bypassing the Judiciary
Committee when the Supreme Court nominee is a sitting U.S. Senator; no President since then
has nominated a sitting Senator. The last former Senator to be nominated to the Court, in 1949,
was Judge Sherman Minton of Indiana. (After defeat for re-election to the Senate in 1940, he had
been appointed by President Franklin D. Roosevelt to a federal appellate court judgeship.) In a
break with tradition, the Supreme Court nomination of former Senator Minton was referred to the
Judiciary Committee, and Senate confirmation followed the day after the committee approved the
nomination.

64 This number does not include instances such as the John G. Roberts Associate Justice nomination, in which the
Judiciary Committee did not have the opportunity to hold hearings. Hearings before the Judiciary Committee were
dispensed with for three nominees: Frank Murphy in 1939, James F. Byrnes in 1941, and Harold H. Burton in 1945, all
of whom had prior service in high public office. Murphy had previously served as Governor of Michigan and U.S.
Attorney General. Byrnes was a sitting Senator from South Carolina when nominated to the Court. Harold H. Burton
was a Senator from Ohio. (Biographical information obtained from the Federal Judicial Centers Federal Judges
Biographical Database, available at http://www.fjc.gov/public/home.nsf/hisj).
65 See CRS Report RL31989, Supreme Court Appointment Process: Roles of the President, Judiciary Committee, and
Senate, by Denis Steven Rutkus.
66 For additional background information on Senators giving current or former colleagues deference when nominated to
the Court, see Rutkus, Supreme Court Appointments Process, pp. 17-18.
67 “White Heads Bench,Washington Post, Dec. 13, 1910, p. 1.
68 Senators Burton and Byrnes’s nominations were not referred to the Judiciary Committee. Sen. Black’s nomination
was referred to the committee, which recommended his confirmation, although by a divided 13-4 vote.





As noted previously, withdrawn, rejected, or controversial nominations can substantially lengthen
the process. In these cases, although Presidents often name nominees fairly quickly, consideration
of the nominations can be drawn out in the Senate. During Judge Robert H. Bork’s controversial
nomination, for example, Senate consideration of Bork lasted more than a month, from the first
Judiciary Committee hearing on September 15, 1987, until the Senate’s floor vote to reject the
nomination on October 23, 1987. The entire process—from President Reagan’s announcement of
his intention to nominate Bork to Senate rejection—took 119 days.
Controversy can also delay confirmation of nominees who are ultimately successful. Despite a
relatively quick nomination-and-confirmation process of 42 days in late 1924 and early 1925 for
then-Attorney General Harlan F. Stone, his nomination was temporarily set back when it was
recommitted to the Senate Judiciary Committee, apparently because of Stone’s investigation as 69
Attorney General of Senator Burton K. Wheeler. More recently, although Judge Clarence
Thomas narrowly won confirmation in 1991, nominating and confirming him took 110 days,
including a second round of Judiciary Committee hearings surrounding law professor Anita Hill’s
allegations against Thomas of sexual harassment.
Understanding how long the previous Supreme Court nomination-and-confirmation process has
taken, and what factors affected that schedule, can provide useful perspective on presidential
decision-making and the Senate’s preparations for future nominations. While Presidents and
supporters of nominees want Justices confirmed quickly, some Senators will continue to
emphasize their right to consider nominees carefully and their responsibility to hold sufficient
hearings. Against that political backdrop, this report demonstrates that the length of time required
to nominate and confirm or reject a nominee varies widely. Even median durations must be
interpreted cautiously. The context surrounding each nomination is particularly important in
understanding how long the process takes.
Given the advanced ages of some members of the current Court, more vacancies in the near
future are widely anticipated. Should those vacancies occur unexpectedly, such as with a sudden
retirement or death, the Court could well be operating without a full bench—making the timing of
nominations and confirmations even more pressing. In such a scenario, the Senate would likely be
under intense pressure to confirm a successor quickly. This report indicates that, from 1900-1980,
the President’s portion of the process took longer than the Senate’s. Since 1981, though, there has
been a substantial increase in the median duration between the President’s announcement of a
nominee and the start of Judiciary Committee hearings. As a result, the Senate’s portion of the
process has taken longer than the President’s.
Prior to 1981, lengthy nomination-and-confirmation processes usually occurred because either the
Senate was out of session when a vacancy on the Court arose, or the nomination was
controversial. In recent decades, by contrast, slower decision-making has taken place during an th
era when Congress is in session longer than during the early 20 century.

69 On Stones testimony before the Judiciary Committee regarding the investigation, see Albert W. Fox,Stone Tells
Senate Committee He Assumes Full Responsibility For Pressing New Wheeler Case,” Washington Post, Jan. 29, 1925,
p. 1.





Since 1981, the nomination-and-confirmation process has lasted a median of 113 days—almost
twice as long as the 59-day median from 1900-1980. Although the data in Table 1, Table 2, and
Table 3 provide a median measure of the process, political context is an essential backdrop for
understanding the numbers. The President and the Senate share decision-making responsibilities
for placing new Justices on the Court. Ultimately, the choices each institution makes determine
how long nominations and confirmations take.
One possible explanation for the paradox of slower decisions despite more time in session is that,
as some critics on both sides of the aisle contend, Supreme Court nominations have become 70
battlegrounds for larger political debates. Another possibility is that the Senate is considering
nominations more carefully than in the past, and therefore taking more time to make decisions
about nominees. Similarly, the Senate might be using longer decision-making and scrutiny of
nominees as a method of counterbalancing presidential power, especially when Senators believe
that the President has chosen an unqualified nominee.
Some early 20th century appointments to the Supreme Court were confirmed within days of a
vacancy occurring. More recent nominations and confirmations, by contrast, typically have taken
several weeks or months. How and when a vacancy occurs, the Senate’s schedule, Judiciary
Committee involvement, institutional customs, and whether or not the nomination is
controversial, all affect the speed with which the President nominates, and the Senate passes
judgment, on prospective Justices.

70 On increasingly controversial judicial nominations, see chapter 4 in Walter F. Murphy, C. Herman Pritchett, and Lee
Epstein, Courts, Judges, & Politics: An Introduction to the Judicial Process, 5th ed. (Boston: McGraw Hill, 2002);
[Thomas O. Sargentich, Paul D. Carrington, Barbara E. Reed, Charles Gardner Geyh, and Erwin Chemerinsky],
Uncertain Justice: Politics and America’s Courts: The Reports of the Task Forces of Citizens for Independent Courts
(New York: The Century Foundation, 2000); and Mark Silverstein, Judicious Choices: The New Politics of Supreme
Court Confirmations (New York: W.W. Norton & Company, 1994).




Table 1. Major Events in the Supreme Court Nomination-and-Confirmation Process, 1900-2006
Actual or Prospective Vacancy President’s Announcement
Apparently Became Known to of Nominee Senate Action Dates on Nomination
President Nominating Outgoing
President Justice
When How Nominee Date First Hearing Committee Final Action Senate Final Action
Theodore Horace Gray 09/15/1902 Death of outgoing Oliver 12/02/1902 No record 12/04/1902 12/04/1902
Roosevelt Justice Wendell of hearing
Holmes
Theodore George 08/20/1902a Public reports of William R. 01/14/1903b No record 02/23/1903 02/23/1903
Roosevelt Shiras, Jr. imminent retirement Day of hearing
Theodore Henry B. 03/08/1906c Outgoing Justice William H. 11/07/1906 No record 12/10/1906 12/12/1906
Roosevelt Brown notified President of dMoody of hearing
intention to retire
iki/CRS-RL33118William Howard Taft Rufus W. Peckham 10/24/1909 Death of outgoing Justice Horace H. Lurton 12/13/1909e No record of hearing 12/16/1909 12/20/1909
g/w
s.orWilliam Howard David J. 3/28/1910 Death of outgoing Charles Evans 4/25/1910 No record 05/02/1910 05/02/1910
leakTaft Brewer Justice Hughes of hearing
://wikiWilliam Howard Taft Melville W. Fuller, Chief 07/04/1910 Death of outgoing Chief Justice Edward D. White 12/12/1910 Nomination was not referred to Judiciary Committee 12/12/1910
httpJustice
William Howard Edward D. 12/12/1910 Justice Edward D. Willis Van 12/12/1910 No record 12/15/1910 12/15/1910
Taft White White nomination to be Devanter of hearing
Chief Justice
William Howard William H. 06/15/1910f Congressional action Joseph R. 12/12/1910 No record 12/15/1910 12/15/1910
Taft Moody authorizing retirement Lamar of hearing
William Howard John Marshall 10/14/1911 Death of outgoing Mahlon Pitney 02/19/1912 No record 03/04/1912 03/13/1912
Taft Harlan Justice of hearing
Woodrow Horace H. 07/12/1914 Death of outgoing James C. 08/19/1914g No record 08/24/1914 08/29/1914
Wilson Lurton Justice McReynolds of hearing
Woodrow Joseph R. 01/02/1916 Death of outgoing Louis D. 01/28/1916 02/09/1916 05/24/1916 06/01/1916
Wilson Lamar Justice Brandeis
Woodrow Charles 06/10/1916h Resignation letter John H. Clarke 07/14/1916 No record 07/24/1916 07/24/1916


Wilson Evans Hughes submitted to President of hearing


Actual or Prospective Vacancy President’s Announcement
Apparently Became Known to of Nominee Senate Action Dates on Nomination
President Nominating Outgoing
President Justice
When How Nominee Date First Hearing Committee Final Action Senate Final Action
Warren Harding Edward D. 05/19/1921 Death of outgoing William 06/30/1921 Nomination was not referred 06/30/1921
White Justice Howard Taft to Judiciary Committee
Warren Harding John H. 09/05/1922 Resignation letter George 09/05/1922 Nomination was not referred 09/05/1922
Clarke submitted to President Sutherland to Judiciary Committee
09/05/1922i Public reports of Pierce Butler 11/23/1922 No record 11/28/1922 Placed on Executive Warren Harding William R.
imminent retirement of hearing Calendar on Day
11/28/1922, with no
record of further j
action
12/04/1922 Lack of action on first Pierce Butler 12/05/1922 No record 12/18/1922 12/21/1922
nomination of Butler of hearing
iki/CRS-RL33118Warren Harding Mahlon 12/16/1922 White House Edward T. 01/09/1923l No record 01/29/1923 01/29/1923
g/wPitney announced forthcoming Sanford of hearing
s.orretirementk
leak m
01/21/1925 Recommitted Calvin Coolidge Joseph 12/25/1924 Public reports of Harlan F. 01/05/1925 01/28/1925
://wiki01/26/1925 McKenna forthcoming retirement Stone
http02/02/1925 02/05/1925
Herbert Hoover William 02/03/1930 Retirement letter Charles Evans 02/03/1930 No record 02/10/1930 02/13/1930
Howard Taft submitted to President Hughes of hearing
Chief Justice
Herbert Hoover Edward T. 03/08/1930 Death of outgoing John J. Parker 03/21/1930 04/05/1930 04/21/1930 Rejected 05/07/1930
Sanford Justice
Herbert Hoover Edward T. 05/07/1930 Parker nomination Owen J. 05/09/1930 No record 05/19/1930 05/20/1930
Sanford rejected by Senate Roberts of hearing
Herbert Hoover Oliver 01/12/1932 Retirement letter Benjamin N. 02/15/1932 02/19/1932 02/23/1932 02/24/1932
Wendell submitted to President Cardozo
Holmes, Jr.
Franklin D. Willis Van 05/18/1937n Retirement letter Hugo L. Black 08/12/1937 No record 08/16/1937 08/17/1937


Roosevelt Devanter submitted to President of hearing


Actual or Prospective Vacancy President’s Announcement
Apparently Became Known to of Nominee Senate Action Dates on Nomination
President Nominating Outgoing
President Justice
When How Nominee Date First Hearing Committee Final Action Senate Final Action
Franklin D. George 01/05/1938 Retirement letter Stanley F. 01/15/1938o 01/20/1938 01/24/1938 01/25/1938
Roosevelt Sutherland submitted to President Reed
Franklin D. Benjamin N. 07/09/1938p Death of outgoing Felix 01/05/1939 01/10/1939 01/16/1939 01/17/1939
Roosevelt Cardozo Justice Frankfurter
Franklin D. Louis D. 02/13/1939q Retirement letter William O. 03/20/1939 03/24/1939 03/27/1939 04/04/1939
Roosevelt Brandeis submitted to President Douglas
Franklin D. Pierce Butler 11/16/1939 Death of outgoing Frank Murphy 01/04/1940 01/11/1940 01/15/1940 01/16/1940
Roosevelt Justice
Franklin D. James Clark 01/22/1941 Outgoing Justice James F. 06/12/1941 Nomination was not referred 06/12/1941
Roosevelt McReynolds notified President of Byrnes to Judiciary Committee
iki/CRS-RL33118intention to retirer
g/wFranklin D. Charles 06/02/194s Retirement letter Harlan F. 06/12/1941 06/21/1941 06/23/1941 06/27/1941
s.orRoosevelt Evans Hughes submitted to President Stone
leakChief Justice
Franklin D. Harlan F. 06/12/1941 Harlan F. Stone Robert H. 06/12/1941 06/21/1941 06/30/1941 07/07/1941
://wikiRoosevelt Stone nomination to be Jackson
httpChief Justice
Franklin D. James F. 10/03/1942t Byrnes appointment to Wiley B. 01/11/1943 01/22/1943 02/01/1943 02/08/1943
Roosevelt Byrnes other public office Rutledge
Harry S. Owen J. 06/30/1945u Retirement letter Harold H. 09/18/1945 No record 09/19/1945 09/19/1945
Truman Roberts submitted to President Burton of hearing
Harry S. Harlan F. 04/22/1946 Death of outgoing Chief Fred M. 06/06/1946 06/14/1946 06/19/1946 06/20/1946
Truman Stone Justice Vinson
Chief Justice
Harry S. Frank 07/19/1949 Death of outgoing Thomas C. 07/28/1949 08/09/1949 08/12/1949 08/18/1949
Truman Murphy Justice Clark
Harry S. Wiley B. 09/10/1949 Death of outgoing Sherman 09/15/1949 09/27/1949 10/03/1949 10/04/1949


Truman Rutledge Justice Minton


Actual or Prospective Vacancy President’s Announcement
Apparently Became Known to of Nominee Senate Action Dates on Nomination
President Nominating Outgoing
President Justice
When How Nominee Date First Hearing Committee Final Action Senate Final Action
Recess appointment, 10/02/1953 Dwight D. Fred M. 09/08/1953 Death of outgoing Chief Earl Warren
Eisenhower Vinson Justice 01/11/1954 02/02/1954 02/24/1954 03/01/1954
Chief Justice
10/09/1954 Death of outgoing John Marshall 11/08/1954v No record of hearing, committee vote, or Senate vote Dwight D. Robert H.
Justice Harlan II Eisenhower Jackson
01/05/1955 Lack of action on first John Marshall 01/10/1955 02/24/1955 03/10/1955 03/16/1955
(Congress nomination of Harlan Harlan II
reconvenes) nomination
Recess appointment, 10/15/1956 Dwight D. Sherman 09/07/1956 Retirement letter William J.
Eisenhower Minton submitted to President Brennan 01/14/1957 02/26/1957 03/04/1957 03/19/1957
iki/CRS-RL33118Dwight D. Stanley F. 01/31/1957 Press conference held Charles E. 03/02/1957 03/18/1957 03/18/1957 03/19/1957
g/wEisenhower Reed by Reed announcing Whittaker
s.orretirementw
leakRecess Appointment, 10/14/1958 Dwight D. Harold H. 10/06/1958 Retirement letter Potter Stewart
Eisenhower Burton submitted to President 01/17/1959 04/09/1959 04/20/1959 05/05/1959
://wiki
httpJohn F. Kennedy Charles E. 03/28/1962 Retirement letter Byron R. 03/30/1962y 04/11/1962 04/11/1962 04/11/1962
Whittaker received by Presidentx White
John F. Kennedy Felix 08/28/1962z Retirement letter Arthur J. 08/29/1962 09/11/1962 09/25/1962 09/25/1962
Frankfurter submitted to President Goldberg
Lyndon B. Arthur J. 07/20/1965 Goldberg appointment aaAbe Fortas 07/28/1965bbbb 08/05/1965 08/10/1965 08/11/1965
Johnson Goldberg to other public office
Lyndon B. Thomas C. 02/28/1967 Outgoing Justice Thurgood 06/13/1967dd 07/13/1967 08/03/1967 08/30/1967
Johnson Clark notified President of ccMarshall
intention to retire
Lyndon B. Earl Warren 06/13/1968ee Retirement letter Abe Fortas 06/26/1968 07/11/1968 09/17/1968 10/01/1968 (Cloture
Johnson Chief Justice submitted to President motion rejected)
Lyndon B. Abe Fortas 06/26/1968ff Fortas nomination to be Homer 06/26/1968 07/11/1968 No record of Nomination withdrawn
Johnson Chief Justice Thornberry committee vote by President,
10/04/1968




Actual or Prospective Vacancy President’s Announcement
Apparently Became Known to of Nominee Senate Action Dates on Nomination
President Nominating Outgoing
President Justice
When How Nominee Date First Hearing Committee Final Action Senate Final Action
Richard M. Earl Warren 01/20/1969gg Fortas Chief Justice Warren E. 05/21/1969 06/03/1969 06/03/1969 06/09/1969
Nixon Chief Justice nomination withdrawn Burger
by President Johnson
(10/04/1968)
05/14/1969 Resignation letter Clement F. 08/18/1969hh 09/16/1969 10/09/1969 11/21/1969 Richard M. Abe Fortas
submitted to President Haynsworth, (Rejected) Nixon
Jr.
11/21/1969 Haynsworth nomination G. Harrold 01/19/1970 01/27/1970 02/16/1970 04/08/1970
rejected by Senate Carswell (Rejected)
04/08/1970 Carswell nomination Harry A. 04/14/1970 04/29/1970 05/06/1970 05/12/1970
rejected by Senate Blackmun
iki/CRS-RL33118Richard M. Hugo L. Black 09/17/1971 Retirement letter Lewis F. 10/21/1971 11/03/1971 11/23/1971 12/06/1971
g/wNixon submitted to President Powell, Jr.
s.or
leakRichard M. John Marshall 09/23/1971 Retirement letter William H. 10/21/1971 11/03/1971 11/23/1971 12/10/1971
Nixon Harlan II submitted to President Rehnquist
://wikiGerald R. Ford William O. 11/12/1975ii Retirement letter John Paul 11/28/1975jj 12/08/1975 12/11/1975 12/17/1975
httpDouglas submitted to President Stevens
Ronald Reagan Potter 05/18/1981kk Retirement letter Sandra Day 07/07/1981ll 09/09/1981 09/15/1981 09/21/1981
Stewart submitted to President O’Connor
Ronald Reagan Warren E. 05/27/1986mm Chief Justice privately William H. 06/17/1986 07/29/1986 08/14/1986 09/17/1986
Burger alerted President of Rehnquist
Chief Justice intention to retire
Ronald Reagan William H. 05/27/1986nn Rehnquist nomination Antonin Scalia 06/17/1986 08/05/1986 08/14/1986 09/17/1986
Rehnquist by Reagan to be Chief
Justice
06/26/1987oo Press conference held Robert H. 07/01/1987 09/15/1987 10/06/1987 10/23/1987 Ronald Reagan Lewis F.
by Powell announcing Bork (Rejected) Powell, Jr.
retirement
10/23/1987 Bork nomination Douglas H. 10/29/1987 Ginsburg withdrew (11/07/1987) pp
rejected by Senate Ginsburg before official nomination




Actual or Prospective Vacancy President’s Announcement
Apparently Became Known to of Nominee Senate Action Dates on Nomination
President Nominating Outgoing
President Justice
When How Nominee Date First Hearing Committee Final Action Senate Final Action
11/07/1987 Ginsburg withdrawal Anthony M. 11/11/1987 12/14/1987 01/27/1988 02/03/1988
Kennedy
George H.W. William J. 07/20/1990 Retirement letter David H. 07/23/1990qq 09/13/1990 09/27/1990 10/02/1990
Bush Brennan submitted to President Souter
George H.W. Thurgood 06/27/1991 Retirement letter Clarence 07/01/1991 09/10/1991 09/27/1991 10/15/1991
Bush Marshall submitted to President Thomas
William J. Byron R. 03/19/1993rr Retirement letter Ruth Bader 06/14/1993ss 07/20/1993 07/29/1993 08/03/1993
Clinton White submitted to President Ginsburg
William J. Harry A. 01/01/1994tt Justice privately alerted Stephen G. 05/13/1994 07/12/1994 07/19/1994 07/29/1994
Clinton Blackmun President of Breyer
iki/CRS-RL33118forthcoming retirement
g/w07/01/2005 Retirement letter John G. 07/19/2005 Nomination was withdrawn by President (09/05/2005) George W. Sandra Day
s.orsubmitted to President Roberts before the start of Judiciary Committee hearings; re-Bush O’Connor
leaknominated as Chief Justice (09/05/2005)
09/05/2005 Announcement of Harriet E. 10/03/2005 Miers withdrew as nominee (10/27/2005) before the start
://wikiRoberts nomination Miers of Judiciary Committee hearings
httpwithdrawal and re-
submission by President
10/27/2005 Announcement of Miers Samuel A. 10/31/2005 01/09/2006 01/24/2006 01/31/2006
withdrawal Alito, Jr.
George W. William H. 09/03/2005 Death of outgoing John G. 09/05/2005 09/12/2005 09/22/2005 09/29/2005
Bush Rehnquist Justice Roberts
Sources: As described in the text, this research relied on historical newspapers, official presidential papers, and CRS correspondence with Presidential Libraries. Ward’s
Deciding to Leave was especially useful in compiling data on the reasons why Justices left the bench. Additional source information appears in the table notes below.
a. It is unclear when President Theodore Roosevelt learned of Justice Shiras’s intention to retire. However, Washington Post coverage suggests that Shiras’s forthcoming
departure was well known in Washington, DC by at least Aug. 20, 1902 (“nox May Not Want It: Belief that He Would Decline Justice Shiras’s Position,” Washington
Post, Aug. 20, 1902, p. 1).
b. President Roosevelt did not formally announce Day’s nomination until Feb. 19, 1903. However, the Washington Post reported as early as Jan. 14, 1903 that President
Roosevelt had already offered Day the nomination, after William Howard Taft declined the offer in favor of continuing his position as Civil Governor of the Philippine
Islands (“eclined by Taft,”Washington Post, Jan. 14, 1903, p. 1).




c. According to the Washington Post, Justice Brown notified the President, on Mar. 8, 1906, that he wished to retire (“To Leave the Bench: Justice Brown Will Retire in
the Fall,” Washington Post, Mar. 8, 1906, p. 3).
d. It is unclear from the historical record whether the President learned of Justice Brown’s desire to retire by letter, personal conversation, etc.
e. Despite the delay between Justice Peckham’s death and President William Howard Taft’s nomination of Horace H. Lurton, President Taft, in nominating Lurton, was
reportedly “adhering to his original purpose to promote Judge Lurton, whom he has known for years, and with whom he served on the bench,” (“Taft Names Lurton,”
Washington Post, Dec. 14, 1909, p. 3).
f. Justice Moody did not actually depart the Court until Nov. 20, 1910 (Ward, Deciding to Leave, p. 5). However, “llness of a serious nature has kept Justice Moody from
his duties in the Supreme Court for almost a year. There have been occasional rumors of retirement, but Senator Lodge [on June 15, 1910] presented the real
harbinger of that action, in the form of a bill extending the statute relating to retirement from the Supreme Court to cover the case of Mr. Moody” (“Moody Will
Retire,” Washington Post, June 15, 1910, p. 1).
g. Although Justice McReynolds’s nomination was not announced until Aug. 20, 1914, the Washington Post reported on Aug. 19 that President Woodrow Wilson had
“definitely decided” on McReynolds (“Picks M’Reynolds,” Washington Post, Aug. 19, 1914, p. 1), thereby informally alerting Congress to the President’s choice.
h. On June 10, 1916, Justice Hughes resigned to pursue the 1916 Republican presidential nomination (“Hughes, With Words That Ring, Obeys Call to Lead Republicans,”
Washington Post, June 11, 1916, p. 1). Although historical media research does not indicate that President Wilson knew for certain that Justice Hughes would resign,
media reports had hinted at a Hughes resignation throughout the spring of 1916.
i. Day did not leave the Court until Nov. 13, 1922. However, the Washington Post reported that Day’s consideration of retirement was mentioned at a White House
iki/CRS-RL33118briefing on Sept. 5, 1922 (“Justice Day May Leave the Bench,” Washington Post, Sept. 6, 1922, p. 1).
g/wj. After the Senate took no final action on Butler’s nomination by the end of the third session of the 67th Congress on Dec. 4, 1922, President Warren Harding re-
s.ornominated Butler on Dec. 5, 1922. See “Fight Over Butler’s Nomination Forecast,” Washington Post, Dec. 6, 1922, p. 12; and “Fight Against Butler Opened by Shipstead,” Washington Post, Dec. 9, 1922, p. 2.
leak
k. Although Justice Pitney’s resignation was effective as of Dec. 31, 1922, the White House announced Pitney’s forthcoming departure on Dec. 16, 1922 ( “Resigns,”
://wikiChicago Daily Tribune, Dec. 17, 1922, p. 17).
httpl. President Warren Harding did not officially nominate Sanford until Jan. 24, 1923. However, the media reported as early as Jan. 9, 1923, that President Harding intended
to nominate Sanford (“E.T. Sanford Choice for Supreme Court,” Washington Post, Jan. 9, 1923, p. 1).
m. Justice McKenna did not officially retire until Jan. 5, 1925. However, the media reported his imminent retirement on Dec. 25, 1924 (“M’Kenna to Retire Soon as a
Justice of the Supreme Court,” Washington Post, Dec. 25, 1924, p. 2).
n. For an account of Justice Van Devanter privately alerting a reporter of his decision to retire on the morning of the announcement, see “News ‘Beat’ Aided by Van
Devanter,” New York Times, May 23, 1937, p. 40.
o. Justice Reed had also been a frontrunner for the 1937 seat that eventually went to Justice Hugo Black. This perhaps explains President Franklin D. Roosevelt’s
relatively quick nomination of Reed, despite what many reporters considered to be a surprise retirement announcement from Sutherland. See Robert C. Albright,
“Sutherland, 75, Quits U.S. Supreme Court,” New York Times, Jan. 6, 1938, p. X1; and Franklyn Waltman, “Stanley F. Reed Named to U.S. Supreme Court.” New York
Times, Jan. 16, 1938, p. 1.
p. Although Justice Cardozo had been ill and away from the bench since December 1937 (United Press, “Supreme Court Liberal Succumbs to Heart Ailment in N.Y.,”
Washington Post, July 10, 1938, p. M1), a definite need to nominate a new Justice did not occur until Cardozo’s death on July 9, 1938.




q. Justice Brandeis had been away from the bench for a month, recovering from a heart attack, prior to announcing his retirement (United Press, “Justice Brandeis, Dean
of Supreme Court, Quits,” Los Angeles Times, Feb. 14, 1939, p. 1). Nonetheless, his retirement was considered abrupt, suggesting that President Roosevelt had little
advance notice to consider a successor.
r. It is unclear from the historical record whether the President learned of Justice McReynolds’s desire to retire by letter, personal conversation, etc.
s. Although Chief Justice Hughes’s retirement due to age and poor health had been “rumored some months” prior to submission of his formal retirement letter (Walter
Trohan, “Hughes Retires From Court,” Chicago Daily Tribune, June 3, 1941, p. 1), the definite need for a new nominee did not arise until Hughes announced his
retirement.
t. Justice Byrnes resigned at President Roosevelt’s request on Oct. 3, 1942, becoming Director of Economic Stability. Roosevelt was, therefore, aware of an impending
vacancy on the Court prior to the formal resignation, although the precise date is unclear. For a summary of Byrnes’s transition from the Court to his new post, see
Associated Press, “Byrnes Resigns From Bench in Letter to President,” New York Times, Oct. 4, 1942, p. 45.
u. Although President Truman did not announce Justice Roberts’s intention to retire until July 5, 1945 (United Press, “Morganthau and Roberts Resign,” Los Angeles Times,
July 6, 1945, p. 1), Justice Roberts’s retirement letter is dated July 30, 1945. Truman received the letter on that date “or soon thereafter” (e-mail communication
between CRS Information Specialist Dana Ely and Truman Library Archivist Randy Sowell, Sept. 2, 2005).
v. The Senate took no final action on the Harlan nomination before the 83rd Congress’s final adjournment on Dec. 2, 1954. President Eisenhower re-nominated Harlan to th
the Court on Jan. 10, 1955, five days after the start of the first session of the 84 Congress. Evidence does not suggest that another announcement of the nomination
was made.
iki/CRS-RL33118w. Whether President Eisenhower first learned of Justice Reed’s retirement through the press conference or a letter from Reed is unclear. Contemporary media coverage mentioned a press conference and a letter to Eisenhower (Edward T. Folliard, “Reed Is Retiring From High Court,” Washington Post, Feb. 1, 1957, p. A1).
g/wHowever, political scientist Artemus Ward’s account asserts that Reed announced his retirement through a press conference (Ward, Deciding to Leave, pp. 162-163).
s.orRegardless, both events occurred on Jan. 31, 1957. For the Jan. 31 correspondence between Reed and Eisenhower, see “Letter to Stanley Reed Regarding His
leakRetirement From Active Service as An Associate Justice of the Supreme Court,” U.S. National Archives and Records Administration, Office of the Federal Register,
Public Papers of the Presidents of the United States: Dwight D. Eisenhower, 1957 (Washington: GPO, 1958), pp. 109-110.
://wikix. This information is based on e-mail communication between CRS Information Specialist Dana Ely and Kennedy Library Reference Technician Sharon Kelly, Sept. 14,
http2005.
y. According to a press account, President Kennedy’s decision to nominate White “was apparently made just a few hours before the selection was announced Friday
night” (on March 30, 1962) (James E. Clayton, “White Was One of Three In Line for High Court,” Washington Post, Apr. 1, p. A1). Given the relatively quick action,
however, Kennedy might have considered White as a Supreme Court candidate in advance of the Mar. 28, 1962, announced vacancy.
z. Aug. 28, 1962, is the only definitive date which can be established based on available data, as the earliest point at which President Kennedy learned of Justice
Frankfurter’s intention to retire. However, President Kennedy’s quick nomination of Goldberg, and Justice Frankfurter’s poor health in the weeks leading up to his
retirement, suggest that President Kennedy was considering prospective nominees well before Frankfurter stepped down. Kennedy’s letter to Justice Frankfurter
accepting his retirement references a visit the President paid to Frankfurter to check on his health sometime during the summer of 1962 (U.S. National Archives and
Records Administration, Office of the Federal Register, Public Papers of the Presidents of the United States: John F. Kennedy, 1962, (Washington: GPO, 1963), p. 656).
According to Kennedy Library Reference Technician Sharon Kelly, Kennedy’s office files suggest that correspondence between Frankfurter, Special Assistant for
National Security Affairs McGeorge Bundy, and the President would have alerted Kennedy to Frankfurter’s declining health around May 17, 1962 (e-mail
communication between CRS Information Specialist Dana Ely and Kennedy Library Reference Technician Sharon Kelly, Sept. 14, 2005).
aa. President Lyndon B. Johnson unexpectedly nominated Justice Goldberg to be U.S. Ambassador to the United Nations following the death on July 14, 1965, of the
previous ambassador, Adlai E. Stevenson. See Carroll Kilpatrick, “Goldberg is Named to Stevenson Post,” Washington Post, July 21, 1965, p. A1.




bb. Although Justice Fortas was not nominated until July 28, 1965, President Johnson apparently decided to nominate Fortas long before the Goldberg vacancy, making the
gap of only one week between Goldberg’s resignation and Fortas’s nomination unsurprising. At the press conference announcing Fortas’s nomination, President
Johnson said that he and Fortas had discussed the nomination “on numerous occasions in the 20 months,” (U.S. National Archives and Records Administration, Office
of the Federal Register, Public Papers of the Presidents of the United States: Lyndon B. Johnson, 1966, vol. 2 (Washington: GPO), 1967, p. 798).
cc. Despite the fact that Justice Clark announced his forthcoming retirement on Feb. 28, 1967, historical evidence suggests that Johnson might have prompted Clark’s
retirement as early as Jan. 1967, when the President prepared to nominated Justice Clark’s son, Ramsey, to be Attorney General. “On January 25, 1967, Johnson told
Ramsey that he could only be named the permanent attorney general if his father stepped down from the Court” (Ward, Deciding to Leave, p. 170).
dd. Like the 1965 Fortas nomination, Marshall’s nomination was no surprise, since Johnson was reportedly considering Marshall for appointment to the Court before the
formal nomination. According to a 1967 Washington Post report, “Marshall’s resignation two years ago, at the President’s request, from a lifetime seat on the 2d U.S.
Circuit Court of Appeals to become Solicitor General, had seemed clearly a move to groom him for the Nation’s highest court” (John P. MacKenzie, “LBJ Names
Marshall to Court,” June 14], 1967, Washington Post, p. A1).
ee. Although President Johnson did not announce Chief Justice Warren’s retirement until June 26, he received Warren’s retirement letter on June 13, 1968 (U.S. National
Archives and Records Administration, Office of the Federal Register, Public Papers of the Presidents of the United States: Lyndon B. Johnson, 1968-69, vol. 1 (Washington:
GPO), 1970, p. 746).
ff. Although a specific opportunity to name a new Associate Justice did not arise until the Fortas Chief Justice nomination on June 26, 1968, it was reported that “[s]ome
Texans at the Capitol are sure that Mr. Johnson has planned for the last four years to name Thornberry to the Supreme Court before he [Johnson] left office,”
(Richard L. Lyons, “Homer Thornberry: ‘Constructive Liberal,’ Close LBJ friend,” Washington Post, June 27, 1969, p. 1).
iki/CRS-RL33118gg. Jan. 20, 1969 (the date of Richard M. Nixon’s inauguration), is used as the starting date for the vacancy because it marks the beginning of President Nixon’s official
g/wdecision-making powers. After the Abe Fortas Chief Justice nomination failed, President Johnson announced on Oct. 2, 1968, that he would not name another nominee (U.S. National Archives and Records Administration, Office of the Federal Register, Public Papers of the Presidents of the United States: Lyndon B. Johnson, 1968-69, vol. 2
s.or(Washington: GPO), 1966, p. 509). Eight days later, Johnson elaborated on his decision. The President wrote that although he would have made another nomination in
leak“ordinary times,” the situation was extraordinary and that, “Under the circumstances, the foundations of government would be better served by the present Chief
Justice [Earl Warren] remaining [in office] until emotionalism subsides, reason and fairness prevail (U.S. National Archives and Records Administration, Office of the
://wikiFederal Register, Public Papers of the Presidents of the United States: Lyndon B. Johnson, 1968-69, vol. 2 (Washington: GPO, 1970), p. 1024). On Dec. 3, 1968, Chief Justice
httpWarren informed President-elect Richard M. Nixon that he was willing to continue serving until a successor was confirmed (“Statement by the Chief Justice,” Dec. 4,
1968, Earl Warren Papers, Manuscript Division, Library of Congress, Washington, DC). In a May 1969, conversation with reporters, President Nixon offered an
unusually detailed discussion of his decision-making process surrounding the Burger nomination. Nixon reported that he thought “it would not be a proper mark of
respect for the Court and for the Chief Justice to have a nomination go down, say, in February or March, and then have possibly the Senate hearings and the like at a
time that the Court was sitting,” and that his target date for a nomination decision was between May 1 and June 1, 1968 (U.S. National Archives and Records
Administration, Office of the Federal Register, Public Papers of the Presidents of the United States: Richard Nixon, 1970, (Washington: GPO), 1971, p. 390).
hh. Although President Richard M. Nixon waited until Aug. 18, 1969, to nominate Haynsworth, media accounts speculated that Haynsworth would be the nominee at least
as early as Aug. 6. See AP, “Possible High Court Choice Hit,” Washington Post, Aug. 7, 1969, p. B4.
ii. Chief Justice Warren Burger reportedly “hint[ed] at a possible vacancy” on the Court in a letter to President Gerald Ford on Nov. 10, 1975, and offered “factors for
[the President] to consider when appointing a new justice,” (e-mail communication between CRS Information Specialist Dana Ely and Ford Library Archivist Technician
Joshua Cochran, Sept. 12, 2005). Justice Douglas’s health had been in question since Dec. 31, 1974, when he suffered a stroke (John P. MacKenzie, “Douglas Retires
From Court,” Washington Post, Nov. 13, 1975, p. A1). However, President Ford would have had relatively little time to consider a replacement Justice since he did not
assume the presidency until Aug. 9, 1975, and a vacancy did not officially arise until Justice Douglas’s Nov. 12, 1975 retirement letter.
jj. During a Nov. 29, 1975, press conference, White House Press Secretary Ron Nessen revealed that the President had decided to nominate, as well as announce his
choice of, Stevens the same day (Spencer Rich, “Ford Picks Chicago Jurist,” Washington Post, Nov. 29, 1975, p. A1). The announcement occurred on Nov. 28, 1975.




kk. Although Justice Stewart’s decision to retire was not made public until June 18, 1981, Stewart delivered a letter, stating his desire to retire, to President Ronald Reagan
on May 18, 1981 (U.S. National Archives and Records Administration, Office of the Federal Register, Public Papers of the Presidents of the United States: Ronald Reagan,
1981 (Washington: GPO, 1982), p. 539.
ll. In this case, the distinction between the dates of announcement of the nominee and the formal nomination is particularly important. On July 7, 1981, President Reagan
“announced his intention” to nominate Judge O’Connor upon completion of a required FBI background check (U.S. National Archives and Records Administration,
Office of the Federal Register, Public Papers of the Presidents of the United States: Ronald Reagan, 1981, (Washington: GPO, 1982), p. 597). President Reagan did not
formally nominate her until Aug. 19, 1981, after she had passed the background check.
mm. Although Chief Justice Burger officially notified President Reagan, by letter on June 17, 1986, of his desire to retire, Burger privately informed Reagan of his plans on
May 27, 1986 (“Remarks on the Resignation of Supreme Court Chief Justice Warren E. Burger and the Nominations of William H. Rehnquist To Be Chief Justice and
Antonin Scalia To Be an Associate Justice,” U.S. National Archives and Records Administration, Office of the Federal Register, Public Papers of the Presidents of the
United States: Ronald Reagan, 1986, vol. 2 (Washington: GPO, 1989), p. 781).
nn. The May 27, 1986, date is used because Chief Justice Burger’s intention to retire (known to President Reagan on May 27) alerted the President of the forthcoming
opportunity to elevate Rehnquist from Associate Justice to Chief Justice, and in turn, of the opportunity to nominate someone to succeed Rehnquist as an Associate
Justice.
oo. President Reagan reportedly “had no advance warning of the resignation” (Al Kamen, “Nixon-Appointed Democrat Cites Age, Health,Washington Post, June 27, 1987,
p. A1).
pp. Judge Ginsburg withdrew his name from consideration before being officially nominated, but after President Reagan had announced his intention to nominate Ginsburg.
iki/CRS-RL33118Among other controversies surrounding the nomination, Ginsburg admitted shortly before withdrawing that he “had smoked marijuana while a Harvard law
g/wprofessor” (Lou Cannon and Ruth Markus, “Judge Kennedy Likely Choice,” Washington Post, Nov. 9, 1987, p. A6).
s.orqq. President George H. W. Bush stated in a July 23, 1990, press conference nominating Souter that he had not decided on a final nominee until that day (U.S. National
leakArchives and Records Administration, Office of the Federal Register, Public Papers of the Presidents of the United States: George Bush, 1990, vol. 2 (Washington: GPO,
1992), p. 1051).
://wikirr. On the details of transferring Justice White’s retirement letter to the President beginning on Mar. 18, 1993, see Dennis J. Hutchinson, The Man Who Was Once Whizzer
httpWhite: A Portrait of Justice Byron R. White (New York: Free Press , 1998, p. 437) and Ward, Deciding to Leave, p. 183, n. 183. One of Justice White’s former law clerks, by
then working in the White House, delivered the letter on the Mar. 19, 1993.
ss. President William J. Clinton announced Ginsburg’s nomination on June 14, 1993. However, President Clinton noted in his nomination speech that he asked Ginsburg
to accept the nomination on the evening of June 13 (U.S. National Archives and Records Administration, Office of the Federal Register, Public Papers of the Presidents of
the United States: William J. Clinton, 1993, vol. 1 (Washington: GPO, 1994), p. 843).
tt. Jan. 1, 1994 is a slight estimation, since Justice Blackmun reportedly “told President Bill Clinton at Renaissance Weekend over the New Year’s holiday in Hilton Head,
S.C., that this would be his last term (Tony Mauro, “How Blackmun Hid Retirement Plans,” New Jersey Law Journal, Apr. 25, 1994, p. 18. ). Clinton publicly announced
Blackmun’s retirement on April 6, 1994. (U.S. National Archives and Records Administration, Office of the Federal Register, Public Papers of the Presidents of the United
States: William J. Clinton, 1994, vol. 1 (Washington: GPO, 1995), p. 597).




Table 2. Duration in Days Between Major Events in the Supreme Court Nomination-and-Confirmation Process, 1900-2006
Actual or Prospective
Vacancy Apparently Became Number of days elapsed from...
Known to President
Nominating Outgoing Nominee Nomination Nomination Starting
President Justice Vacancy to announce-First Committee announce-date to
When How nomination announce-ment to hearing to committee final action to Senate ment to final
ment first hearing final action action final Senate action Senate action
Theodore Horace 09/15/1902 Death of Oliver 78 No record of No record 0 2 80
Roosevelt Gray outgoing Wendell hearing of hearing
Justice Holmes
Theodore George 08/20/1902a Public reports William R. 147 No record of No record 0 40 187
Roosevelt Shiras, Jr. of imminent Day hearing of hearing
retirement
Theodore Henry B. 03/08/1906b Outgoing William H. 244 No record of No record 2 35 279
iki/CRS-RL33118Roosevelt Brown Justice notified Moody hearing of hearing
g/wPresident of
s.orintention to retirec
leak
William Rufus W. 10/24/1909 Death of Horace H. 50 No record of No record 4 7 59
://wikiHoward Taft Peckham outgoing Lurton hearing of hearing
httpJustice
William David J. 03/28/1910 Death of Charles 28 No record of No record 0 7 35
Howard Taft Brewer outgoing Evans hearing of hearing
Justice Hughes
William Melville W. 07/04/1910 Death of Edward D. 161 Nomination Nomination Nom. was 0 161
Howard Taft Fuller outgoing Chief White was not was not not referred
Chief Justice Justice referred to referred to to Judiciary
Judiciary Judiciary Committee
Committee Committee
William Edward D. 12/12/1910 White Willis Van 0 No record of No record 0 3 3
Howard Taft White nomination by Devanter hearing of hearing
President to
be Chief
Justice
William William H. 06/15/1910d Congressional Joseph R. 180 No record of No record 0 3 183




Actual or Prospective
Vacancy Apparently Became Number of days elapsed from...
Known to President
Nominating Outgoing Nominee Nomination Nomination Starting
President Justice Vacancy to announce-First Committee announce-date to
When How nomination announce-ment to hearing to committee final action to Senate ment to final
ment first hearing final action action final Senate action Senate action
Howard Taft Moody action Lamar hearing of hearing
authorizing
retirement
William John 10/14/1911 Death of Mahlon 128 No record of No record 9 23 151
Howard Taft Marshall outgoing Pitney hearing of hearing
Harlan Justice
Woodrow Horace H. 07/12/1914 Death of James C. 38 No record of No record 5 10 48
Wilson Lurton outgoing McReynolds hearing of hearing
Justice
iki/CRS-RL33118
g/wWoodrow Wilson Joseph R. Lamar 01/02/1916 Death of outgoing Louis D. Brandeis 26 12 105 8 125 151
s.orJustice
leak e
Woodrow Charles 06/10/1916 Resignation to John H. 34 No record of No record 0 10 44
://wikiWilson Evans Hughes pursue political office Clarke hearing of hearing
http
Warren Edward D. 05/19/1921 Death of William 42 Nomination Nomination Nomination 0 42
Harding White outgoing Howard was not was not was not
Justice Taft referred to referred to referred to
Judiciary Judiciary Judiciary
Committee Committee Committee
Warren John H. 09/05/1922 Resignation George 0 Nomination Nomination Nomination 0 0
Harding Clarke letter Sutherland was not was not was not
submitted to referred to referred to referred to
President Judiciary Judiciary Judiciary
Committee Committee Committee
09/05/1922f Public reports Pierce 79 No record of No record No record of No Senate No final Warren William R.
of imminent Butler hearing of hearing hearing action action Harding Day
retirement
12/04/1922 Lack of action Pierce 1 No record of No record 3 16 4


on first


Actual or Prospective
Vacancy Apparently Became Number of days elapsed from...
Known to President
Nominating Outgoing Nominee Nomination Nomination Starting
President Justice Vacancy to announce-First Committee announce-date to
When How nomination announce-ment to hearing to committee final action to Senate ment to final
ment first hearing final action action final Senate action Senate action
nomination of Butler hearing of hearing
Butler
Warren Mahlon 12/16/1922 White House Edward T. 24 No record of No record 0 20 44
Harding Pitney announced Sanford hearing of hearing
forthcoming g
retirement
Calvin Joseph 12/25/1924h Public reports Harlan F. 11 23 5h 3 31 42
Coolidge McKenna of imminent Stone
retirement
iki/CRS-RL33118
g/wHerbert Hoover William Howard 02/03/1930 Retirement letter Charles Evans 0 No record of hearing No record of hearing 3 10 10
s.orTaft submitted to Hughes
leakPresident
://wikiHerbert Hoover Edward T. Sanford 03/08/1930 Death of outgoing John J. Parker 13 15 16 16 47 60
httpJustice
Herbert Edward T. 05/07/1930 Parker Owen J. 2 No record of No record 1 11 13
Hoover Sanford nomination Roberts hearing of hearing
rejected by
Senate
Herbert Oliver 01/12/1932 Outgoing Benjamin N. 34 4 4 1 9 43
Hoover Wendell Justice notified Cardozo
Holmes, Jr. President of
intention to
retire
Franklin D. Willis Van 05/18/1937i Retirement Hugo L. 86 No record of No record 1 5 91


Roosevelt Devanter letter Black hearing of hearing
submitted to
President


Actual or Prospective
Vacancy Apparently Became Number of days elapsed from...
Known to President
Nominating Outgoing Nominee Nomination Nomination Starting
President Justice Vacancy to announce-First Committee announce-date to
When How nomination announce-ment to hearing to committee final action to Senate ment to final
ment first hearing final action action final Senate action Senate action
Franklin D. George 01/05/1938 Retirement Stanley F. 10 5 4 1 10 20
Roosevelt Sutherland letter Reed
submitted to
President
Franklin D. Benjamin 07/09/1938j Death of Felix 180 5 6 1 12 192
Roosevelt N. Cardozo outgoing Frankfurter
Justice
Franklin D. Louis D. 02/13/1939k Retirement William O. 35 4 3 8 15 50
iki/CRS-RL33118Roosevelt Brandeis letter submitted to Douglas
g/wPresident
s.or
leakFranklin D. Roosevelt Pierce Butler 11/16/1939 Death of outgoing Frank Murphy 49 7 4 1 12 61
://wikiJustice
httpFranklin D. Roosevelt James C. McReynolds 01/22/1941 Outgoing Justice notified James F. Byrnes 141 Nomination was not Nomination was not Nomination was not 0 141
President of referred to referred to referred to
intention to Judiciary Judiciary Judiciary
retirel Committee Committee Committee
Franklin D. Charles 06/02/1941m Retirement Harlan F. 10 9 2 4 15 25
Roosevelt Evans letter Stone
Hughes submitted to
Chief Justice President
Franklin D. Harlan F. 06/12/1941 Stone Robert H. 0 9 9 7 25 25
Roosevelt Stone nomination by Jackson
President to
be Chief
Justice
Franklin D. James F. 10/03/1942n Byrnes Wiley B. 100 11 10 7 28 128


Roosevelt Byrnes appointment Rutledge


Actual or Prospective
Vacancy Apparently Became Number of days elapsed from...
Known to President
Nominating Outgoing Nominee Nomination Nomination Starting
President Justice Vacancy to announce-First Committee announce-date to
When How nomination announce-ment to hearing to committee final action to Senate ment to final
ment first hearing final action action final Senate action Senate action
to other public
office
Harry. S. Owen J. 06/30/1945o Retirement Harold H. 80 No record of No record 0 1 81
Truman Roberts letter Burton hearing of hearing
submitted to
President
Harry S. Harlan F. 04/22/1946 Death of Fred M. 45 8 5 1 14 59
Truman Stone outgoing Chief Vinson
Chief Justice Justice
iki/CRS-RL33118
g/wHarry S. Truman Frank Murphy 07/19/1949 Death of outgoing Thomas C. Clark 9 12 3 6 21 30
s.orJustice
leak
Harry S. Wiley B. 09/10/1949 Death of Sherman 5 12 6 1 19 24
://wikiTruman Rutledge outgoing Justice Minton
http
24 Recess appointment, 10/02/1953 Dwight D. Fred M. 09/08/1953 Death of Earl Warren
Eisenhower Vinson outgoing Chief 125p 22 22 5 49 174
Chief Justice Justice
30 No record of No record No record of No record of No record Dwight D. Robert H. 10/09/1954 Death of John
hearing committee committee final action of final Eisenhower Jackson outgoing Marshall
action action after action after Justice Harlan II
committee committee
referral referral
5 45 14 6 65 70
38 Recess appointment, 10/15/1956 Dwight D. Sherman 09/07/1956 Retirement William J.
Eisenhower Minton letter Brennan 129q 43 6 15 64 193
submitted to
President
Dwight D. Stanley F. 01/31/1957 Press Charles E. 30 16 0 1 17 47




Actual or Prospective
Vacancy Apparently Became Number of days elapsed from...
Known to President
Nominating Outgoing Nominee Nomination Nomination Starting
President Justice Vacancy to announce-First Committee announce-date to
When How nomination announce-ment to hearing to committee final action to Senate ment to final
ment first hearing final action action final Senate action Senate action
Eisenhower Reed conference Whittaker
held by Reed
announcing r
retirement
8 Recess appointment, 10/14/1958 Dwight D. Harold H. 10/06/1958 Retirement Potter
Eisenhower Burton letter Stewart 103s 82 11 15 108 211
submitted to
President
John F. Charles E. 03/28/1962 Retirement Byron R. 2 12 0 0 12 14
iki/CRS-RL33118Kennedy Whittaker letter received White
g/wby Presidentt
s.orJohn F. Felix 08/28/1962u Retirement Arthur J. 1 13 14 0 27 28
leakKennedy Frankfurter letter Goldberg
submitted to
://wikiPresident
httpLyndon B. Arthur J. 07/20/1965 Goldberg Abe Fortas 8 8 5 1 14 22
Johnson Goldberg appointment
to other public
officev
Lyndon B. Thomas C. 02/28/1967 Outgoing Thurgood 105 30 21 27 78 183
Johnson Clark Justice notified Marshall
President of
intention to
retirew
Lyndon B. Earl 06/13/1968x Retirement Abe Fortas 13 15 68 14 97 110
Johnson Warren letter
Chief Justice submitted to
President
Lyndon B. Abe Fortas 06/26/1968y Fortas Homer 0 15 No record No record of Nomination Nomination
Johnson nomination by Thornberry of final withdrawn by withdrawn




Actual or Prospective
Vacancy Apparently Became Number of days elapsed from...
Known to President
Nominating Outgoing Nominee Nomination Nomination Starting
President Justice Vacancy to announce-First Committee announce-date to
When How nomination announce-ment to hearing to committee final action to Senate ment to final
ment first hearing final action action final Senate action Senate action
Johnson to be committee committee President by
Chief Justice vote action (10/04/1968) President
Richard M. Earl 01/20/1969z Fortas Chief Warren E. 121 13 0 6 19 140
Nixon Warren Justice Burger
Chief Justice nomination
withdrawn by
President
(10/4/1968)
05/14/1969 Resignation Clement F. 96 29 23 43 95 191 Richard M. Abe Fortas
iki/CRS-RL33118letter Haynsworth, Nixon
g/wsubmitted to Jr.
s.orPresident
leak11/21/1969 Haynsworth G. Harrold 59 8 20 51 79 138
nomination Carswell
://wikirejected by
httpSenate
04/08/1970 Carswell Harry A. 6 15 7 6 28 34
nomination Blackmun
rejected by
Senate
Richard M. Hugo L. 09/17/1971 Retirement Lewis F. 34 13 20 13 46 80
Nixon Black letter Powell, Jr.
submitted to
President
Richard M. John 09/23/1971 Retirement William H. 28 13 20 17 50 78
Nixon Marshall letter Rehnquist
Harlan II submitted to
President
Gerald R. William O. 11/12/1975aa Retirement John Paul 16 10 3 6 19 35


Ford Douglas letter Stevens


Actual or Prospective
Vacancy Apparently Became Number of days elapsed from...
Known to President
Nominating Outgoing Nominee Nomination Nomination Starting
President Justice Vacancy to announce-First Committee announce-date to
When How nomination announce-ment to hearing to committee final action to Senate ment to final
ment first hearing final action action final Senate action Senate action
submitted to
President
Ronald Potter 05/18/1981bbbb Retirement Sandra Day 50 64 6 6 76 126
Reagan Stewart letter O’Connor
submitted to
President
Ronald Warren E. 05/27/1986cc Justice William H. 21 42 16 34 92 113
Reagan Burger privately Rehnquist
Chief Justice alerted
iki/CRS-RL33118President of
g/wintention to
s.orretire
leakRonald William H. 05/27/1986dd Rehnquist Antonin 21 49 9 34 92 113
Reagan Rehnquist nomination by Scalia
://wikiReagan to be
httpChief Justice
06/26/1987ee Press Robert H. 5 76 21 17 114 119 Ronald Lewis F.
conference Bork Reagan Powell, Jr.
held by Powell
announcing
retirement
10/23/1987 Bork Douglas H. 6 Ginsburg withdrew (11/07/1987) ff
nomination Ginsburg before official nomination
rejected by
Senate
11/07/1987 Ginsburg Anthony M. 4 33 44 7 84 88
withdrawal Kennedy
George H. William J. 07/20/1990 Retirement David H. 3 52 14 5 71 74


W. Bush Brennan letter Souter
submitted to


Actual or Prospective
Vacancy Apparently Became Number of days elapsed from...
Known to President
Nominating Outgoing Nominee Nomination Nomination Starting
President Justice Vacancy to announce-First Committee announce-date to
When How nomination announce-ment to hearing to committee final action to Senate ment to final
ment first hearing final action action final Senate action Senate action
President
George H. Thurgood 06/27/1991 Retirement Clarence 4 71 17 18 106 110
W. Bush Marshall letter Thomas
submitted to
President
William J. Byron R. 03/19/1993gg Retirement Ruth Bader 87 36 9 5 50 137
Clinton White letter Ginsburg
submitted to
President
iki/CRS-RL33118 hh
g/wWilliam J. Clinton Harry A. Blackmun 01/01/1994 Justice privately Stephen G. Breyer 132 60 7 10 77 209
s.oralerted
leakPresident
://wikiGeorge W. Bush Sandra Day O’Connor 07/01/2005 Retirement letter John G. Roberts 18 Nomination withdrawn by President (09/05/2005) before the first Judiciary Committee hearing; re-nominated as Chief Justice (09/05/2005)
httpsubmitted to
President
09/05/2005 Announcement Harriet 28 Miers withdrew as nominee (10/27/2005) before the start of Judiciary
of Roberts Miers Committee hearings
nomination
withdrawal and
re-submission
by President
10/27/2005 Announcement Samuel A. 4 70 15 7 92 96
of Miers Alito, Jr.
withdrawal
George W. William H. 09/03/2005 Death of John G. 2 7 10 7 24 26


Bush Rehnquist outgoing Roberts
Justice


Sources: Durations for major intervals in the nomination-and-confirmation process were computed by the CRS authors. As described in the text, this research relied on
historical newspapers, official presidential papers, and CRS correspondence with Presidential Libraries. Ward’s Deciding to Leave was especially useful in compiling data on
the reasons why Justices left the bench. Additional source information appears in the table notes below.
a. It is unclear when President Theodore Roosevelt learned of Justice Shiras’s intention to retire. However, Washington Post coverage suggests that Shiras’s forthcoming
departure was well known in Washington by at least Aug. 20, 1902 (“Knox May Not Want It: Belief that He Would Decline Justice Shiras’ Position,” Washington Post,
Aug. 20, 1902, p. 1).
b. According to the Washington Post, Justice Brown notified the President, on Mar. 8, 1906, that he wished to retire (“To Leave the Bench: Justice Brown Will Retire in
the Fall,” Washington Post, Mar. 8, 1906, p. 3).
c. It is unclear from the historical record whether the President learned of Justice Brown’s desire to retire by letter, personal conversation, etc.
d. Justice Moody did not actually depart the Court until Nov. 20, 1910 (Ward, Deciding to Leave, p. 5). However, “Illness of a serious nature has kept Justice Moody from
his duties in the Supreme Court for almost a year. There have been occasional rumors of retirement, but Senator Lodge [on June 15, 1910] presented the real
harbinger of that action, in the form of a bill extending the statute relating to retirement from the Supreme Court to cover the case of Mr. Moody” (“Moody Will
Retire,” Washington Post, June 15, 1910, p. 1).
e. On June 10, 1916, Justice Hughes resigned to pursue the 1916 Republican presidential nomination (“Hughes, With Words That Ring, Obeys Call to Lead Republicans,”
Washington Post, June 11, 1916, p. 1). Although historical media research does not indicate that President Wilson knew for certain that Justice Hughes would resign,
media reports had hinted at a Hughes resignation throughout the spring of 1916.
iki/CRS-RL33118f. Day did not leave the Court until Nov. 13, 1922. However, the Washington Post reported that Day’s consideration of retirement was mentioned at a White House briefing on Sept. 5, 1922 (“Justice Day May Leave the Bench,” Washington Post, Sept. 6, 1922, p. 1).
g/w
s.org. Although Justice Pitney’s resignation was effective as of Dec. 31, 1922, the White House announced Pitney’s forthcoming departure on Dec. 16, 1922 (“Resigns,” Chicago Daily Tribune, Dec. 17, 1922, p. 17).
leak
h. Justice McKenna did not officially retire until Jan. 5, 1925. However, the media reported his imminent retirement on Dec. 25, 1924 (“M’Kenna to Retire Soon as a
://wikiJustice of the Supreme Court,” Washington Post, Dec. 25, 1924, p. 2). Duration calculations for final Senate action on Stone are based on the Feb. 5, 1925, confirmation
httpdate shown in Table 1, not the Jan. 26, 1925, recommittal.
i. For an account of Justice Van Devanter privately alerting a reporter of his decision to retire on the morning of the announcement, see “News ‘Beat’ Aided by Van
Devanter,” New York Times, May 23, 1937, p. 40.
j. Although Justice Cardozo had been ill and away from the bench since December 1937 (United Press, “Supreme Court Liberal Succumbs to Heart Ailment in N.Y.,”
Washington Post, July 10, 1938, p. M1), a definite need to nominate a new Justice did not occur until Cardozo’s death on July 9, 1938.
k. Justice Brandeis had been away from the bench for a month, recovering from a heart attack, prior to announcing his retirement (United Press, “Justice Brandeis, Dean
of Supreme Court, Quits,” Los Angeles Times, Feb. 14, 1939, p. 1). Nonetheless, his retirement was considered abrupt, suggesting that President Roosevelt had little
advance notice to consider a successor.
l. It is unclear from the historical record whether the President learned of Justice McReynolds’s desire to retire by letter, personal conversation, etc.
m. Although Chief Justice Hughes’s retirement due to age and poor health had been “rumored some months” prior to submission of his formal retirement letter (Walter
Trohan, “Hughes Retires From Court,” Chicago Daily Tribune, June 3, 1941, p. 1), the definite need for a new nominee did not arise until Hughes announced his
retirement.




n. Justice Byrnes resigned at President Roosevelt’s request on Oct. 3, 1942, becoming Director of Economic Stability. Roosevelt was, therefore, aware of an impending
vacancy on the Court prior to the formal resignation, although the precise date is unclear. For a summary of Byrnes’s transition from the Court to his new post, see
Associated Press, “Byrnes Resigns From Bench in Letter to President,” New York Times, Oct. 4, 1942, p. 45.
o. Although President Truman did not announce Justice Roberts’s intention to retire until July 5, 1945 (United Press, “Morganthau and Roberts Resign,” Los Angeles Times,
July 6, 1945, p. 1), Justice Roberts’s retirement letter is dated June 30, 1945. Truman received the letter on that date “or soon thereafter” (e-mail communication
between CRS Information Specialist Dana Ely and Truman Library Archivist Randy Sowell, Sept. 2, 2005).
p. Congress was not in session when Chief Justice Vinson died on Sept. 8, 1953 (U.S. Congress, Joint Committee on Printing, 2003-2004 Official Congressional Directory:
108th Congress (Washington: GPO), p. 519). President Eisenhower recess-appointed Earl Warren as Chief Justice on Oct. 2, 1953 and nominated him to the Court, on rd
Jan. 11, 1954, after Congress reconvened for the second session of the 83 Congress. Therefore, although the interval between the starting date (Sept. 8, 1953, as
shown in Table 1) and announcement date (Jan. 11, 1954) is 125 days, and the entire interval from the starting date until final Senate action (Mar. 1, 1954) is 174 days,
the President’s actual decision-making timetable could also be classified as 24 days, or the interval between Vinson’s death (Sept. 8, 1953) and Eisenhower’s recess
appointment of Chief Justice Warren (Oct. 2, 1953). Both intervals are used to calculate the median elapsed time from vacancy to nomination announcement.
Nonetheless, the long intervals have a minimal impact on computing the median durations between stages in the process because the median is less sensitive than the
mean to extremely high or low values.
q. Congress was not in session when Justice Minton submitted his retirement letter to the President on Sept. 7, 1956 (U.S. Congress, Joint Committee on Printing, 2003-th
2004 Official Congressional Directory: 108 Congress,\ (Washington: GPO), p. 519). President Eisenhower recess-appointed William J. Brennan as Associate Justice on
Oct. 15, 1956, and nominated him to the Court, on Jan. 14, 1957, after Congress convened for the first session of the 85th Congress. Therefore, although the interval
between the starting date (Sept. 7, 1956, as shown in Table 1) and announcement date (Jan. 14, 1957) is 129 days, and the entire interval from the starting date until
iki/CRS-RL33118final Senate action (Mar. 19, 1957) is 193 days, the President’s actual decision-making timetable could also be classified as 38 days, or the interval between Brennan’s retirement announcement (Sept. 7, 1956) and Eisenhower’s recess appointment of Justice Brennan (Oct. 15, 1956). Both intervals are used to calculate the median
g/welapsed time from vacancy to nomination announcement. Nonetheless, the long intervals have a minimal impact on computing the median durations between stages in
s.orthe process because median is less sensitive than the mean to extremely high or low values.
leak
r. Whether President Eisenhower first learned of Justice Reed’s retirement through the press conference or a letter from Reed is unclear. Contemporary media
://wikicoverage mentioned a press conference and a letter to Eisenhower (Edward T. Folliard, “Reed Is Retiring From High Court,” Washington Post, Feb. 1, 1957, p. A1). However, political scientist Artemus Ward’s account asserts that Reed announced his retirement through a press conference (Ward, Deciding to Leave, pp. 162-163).
httpRegardless, both events occurred on Jan. 31, 1957. For the Jan. 31 correspondence between Reed and Eisenhower, see “Letter to Stanley Reed Regarding His
Retirement From Active Service as An Associate Justice of the Supreme Court,” U.S. National Archives and Records Administration, Office of the Federal Register,
Public Papers of the Presidents of the United States: Dwight D. Eisenhower, 1957 (Washington: GPO, 1958), pp. 109-110.
s. Congress was not in session when Burton submitted his retirement letter to the President on Oct. 6, 1958 (U.S. Congress, Joint Committee on Printing,2003-2004 th
Official Congressional Directory: 108 Congress (Washington: GPO), p. 519). President Eisenhower recess-appointed Potter Stewart as Associate Justice on Oct. 14, 1958,
and nominated him to the Court, on Jan. 17, 1959, after Congress convened for the first session of the 86th Congress. Therefore, although the interval between the
starting date (Oct. 6, 1958, as shown in Table 1) and nomination date (Jan. 17, 1959) is 103 days, and the entire interval from the starting date until final Senate action
(May 5, 1959) is 211 days, the President’s actual decision-making timetable could also be classified as eight days, or the interval between Burton’s retirement
announcement (Oct. 6, 1958) and Eisenhower’s recess appointment of Justice Stewart (Oct. 14, 1958). Both intervals are used to calculate the median elapsed time
from vacancy to nomination announcement. Nonetheless, the long intervals have a minimal impact on computing the median durations between stages in the process
because the median is less sensitive than the mean to extremely high or low values.
t. This information is based on e-mail communication between CRS Information Specialist Dana Ely and Kennedy Library Reference Technician Sharon Kelly, Sept. 14,
2005.
u. Aug. 28, 1962, is the only definitive date which can be established based on available data, as the earliest point at which President Kennedy learned of Justice
Frankfurter’s intention to retire. However, President Kennedy’s quick nomination of Goldberg, and Justice Frankfurter’s poor health in the weeks leading up to his




retirement, suggest that President Kennedy was considering prospective nominees well before Frankfurter stepped down. Kennedy’s letter to Justice Frankfurter
accepting his retirement references a visit the President paid to Frankfurter to check on his health sometime during the summer of 1962 (U.S. National Archives and
Records Administration, Office of the Federal Register, Public Papers of the Presidents of the United States: John F. Kennedy, 1962, (Washington: GPO, 1963), p. 656).
According to Kennedy Library Reference Technician Sharon Kelly, Kennedy’s office files suggest that correspondence between Frankfurter, Special Assistant for
National Security Affairs McGeorge Bundy, and the President would have alerted Kennedy to Frankfurter’s declining health around May 17, 1962 (e-mail
communication between CRS Information Specialist Dana Ely and Kennedy Library Reference Technician Sharon Kelly, Sept. 14, 2005).
v. President Lyndon B. Johnson unexpectedly nominated Justice Goldberg to be U.S. Ambassador to the United Nations following the death on July 14, 1965, of the
previous ambassador, Adlai E. Stevenson. See Carroll Kilpatrick, “Goldberg is Named to Stevenson Post,” Washington Post, July 21, 1965, p. A1.
w. Despite the fact that Justice Clark announced his forthcoming retirement on Feb. 28, 1967, historical evidence suggests that Johnson might have prompted Clark’s
retirement as early as Jan. 1967, when the President prepared to nominated Justice Clark’s son, Ramsey, to be Attorney General. “On January 25, 1967, Johnson told
Ramsey that he could only be named the permanent attorney general if his father stepped down from the Court” (Ward, Deciding to Leave, p. 170).
x. Although President Johnson did not announce Chief Justice Warren’s retirement until June 26, he received Warren’s retirement letter on June 13, 1968 (U.S. National
Archives and Records Administration, Office of the Federal Register, Public Papers of the Presidents of the United States: Lyndon B. Johnson, 1968-69, vol. 1 (Washington:
GPO, 1966), p. 746).
y. Although a specific opportunity to name a new Associate Justice did not arise until the Fortas Chief Justice nomination on June 26, 1968, it was reported that “[s]ome
Texans at the Capitol are sure that Mr. Johnson has planned for the last four years to name Thornberry to the Supreme Court before he [Johnson] left office,”
(Richard L. Lyons, “Homer Thornberry: ‘Constructive Liberal,’ Close LBJ friend,” Washington Post, June 27, 1969, p. 1).
iki/CRS-RL33118z. Jan. 20, 1969 (the date of Richard M. Nixon’s inauguration), is used as the starting date for the vacancy because it marks the beginning of President Nixon’s official
g/wdecision-making powers. After the Abe Fortas Chief Justice nomination failed, President Johnson announced on Oct. 2, 1968, that he would not name another nominee (U.S. National Archives and Records Administration, Office of the Federal Register, Public Papers of the Presidents of the United States: Lyndon B. Johnson, 1968-69, vol. 2
s.or(Washington: GPO, 1966), p. 509). Eight days later, Johnson elaborated on his decision. The President wrote that although he would have made another nomination in
leak“ordinary times,” the situation was extraordinary and that, “Under the circumstances, the foundations of government would be better served by the present Chief
Justice [Earl Warren] remaining [in office] until emotionalism subsides, reason and fairness prevail (U.S. National Archives and Records Administration, Office of the
://wikiFederal Register, Public Papers of the Presidents of the United States: Lyndon B. Johnson, 1968-69, vol. 2 (Washington: GPO, 1970), p. 1024). On Dec. 3, 1968, Chief Justice
httpWarren informed President-elect Richard M. Nixon that he was willing to continue serving until a successor was confirmed (“Statement by the Chief Justice,” Dec. 4,
1968, Earl Warren Papers, Manuscript Division, Library of Congress, Washington, DC). In a May 1969, conversation with reporters, President Nixon offered an
unusually detailed discussion of his decision-making process surrounding the Burger nomination. Nixon reported that he thought “it would not be a proper mark of
respect for the Court and for the Chief Justice to have a nomination go down, say, in February or March, and then have possibly the Senate hearings and the like at a
time that the Court was sitting,” and that his target date for a nomination decision was between May 1 and June 1, 1968 (U.S. National Archives and Records
Administration, Office of the Federal Register, Public Papers of the Presidents of the United States: Richard Nixon, 1970, (Washington: GPO, 1971), p. 390).
aa. Chief Justice Warren Burger reportedly “hint[ed] at a possible vacancy” on the Court in a letter to President Gerald Ford on Nov. 10, 1975, and offered “factors for
[the President] to consider when appointing a new justice” (e-mail communication between CRS Information Specialist Dana Ely and Ford Library Archivist Technician
Joshua Cochran, Sept. 12, 2005). Justice Douglas’s health had been in question since Dec. 31, 1974, when he suffered a stroke (John P. MacKenzie, “Douglas Retires
From Court,” Washington Post, Nov. 13, 1975, p. A1). However, President Ford would have had relatively little time to consider a replacement Justice since he did not
assume the presidency until Aug. 9, 1975, and a vacancy did not officially arise until Justice Douglas’s Nov. 12, 1975 retirement letter.
bb. Although Justice Stewart’s decision to retire was not made public until June 18, 1981, Stewart delivered a letter, stating his desire to retire, to President Ronald Reagan
on May 18, 1981 (U.S. National Archives and Records Administration, Office of the Federal Register, Public Papers of the Presidents of the United States: Ronald Reagan,
1981 (Washington: GPO, 1982), p. 539).
cc. Although Chief Justice Burger officially notified President Reagan of his desire to retire, by letter on June 17, 1986, Burger privately informed Reagan of his plans on
May 27, 1986 (“Remarks on the Resignation of Supreme Court Chief Justice Warren E. Burger and the Nominations of William H. Rehnquist To Be Chief Justice and




Antonin Scalia To Be an Associate Justice,” U.S. National Archives and Records Administration, Office of the Federal Register, Public Papers of the Presidents of the
United States: Ronald Reagan, 1986, vol. 2 (Washington: GPO, 1989), p. 781).
dd. The May 27, 1986, date is used because Chief Justice Burger’s intention to retire (known to President Reagan on May 27) alerted the President of the forthcoming
opportunity to elevate Rehnquist from Associate Justice to Chief Justice, and in turn, of the opportunity to nominate someone to succeed Rehnquist as an Associate
Justice.
ee. President Reagan reportedly “had no advance warning of the resignation” (Al Kamen, “Nixon-Appointed Democrat Cites Age, Health,Washington Post, June 27, 1987,
p. A1).
ff. Judge Ginsburg withdrew his name from consideration before being officially nominated, but after President Reagan had announced his intention to nominate Ginsburg.
Among other controversies surrounding the nomination, Ginsburg admitted shortly before withdrawing that he “had smoked marijuana while a Harvard law
professor” (Lou Cannon and Ruth Markus, “Judge Kennedy Likely Choice,” Washington Post, Nov. 9, 1987, p. A6).
gg. On the details of transferring Justice White’s retirement letter to the President beginning on Mar. 18, 1993, see Dennis J. Hutchinson, The Man Who Was Once Whizzer
White: A Portrait of Justice Byron R. White (New York: Free Press , 1998, p. 437) and Ward, Deciding to Leave, p. 183, n. 183. One of Justice White’s former law clerks, by
then working in the White House, delivered the letter on the Mar. 19, 1993.
hh. Jan. 1, 1994, is an estimation, since Justice Blackmun reportedly “told President Bill Clinton at Renaissance Weekend over the New Year’s holiday in Hilton Head, S.C.,
that this would be his last term (Tony Mauro, “How Blackmun Hid Retirement Plans,” New Jersey Law Journal, Apr. 25, 1994, p. 18. ). Clinton publicly announced
Blackmun’s retirement on April 6, 1994. (U.S. National Archives and Records Administration, Office of the Federal Register, Public Papers of the Presidents of the United
States: William J. Clinton, 1994, vol. 1 (Washington: GPO), 1995, p. 597).
iki/CRS-RL33118
g/wTable 3. Median Duration in Days Between Major Events in the Supreme Court Nomination-and-Confirmation Process, 1900-
s.or 2006
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Median number of days elapsed from ... a
://wiki
httpTime period President Apparently Learned of Actual or Nomination First Hearing to Committee Final Nomination President Apparently Learned of Actual or
Prospective Vacancy to Announcement to First Hearing Committee Final Action Action to Final Senate Action Announcement to Final Senate Action Prospective Vacancy to
Nomination Announcement Final Senate Action
1900-34 12.5 6 3 17 59
1980
1981-12 52 14 7 84 113
2006
1900-28 15 9 5 22 76
2006
Sources: Durations for major intervals in the nomination-and-confirmation process were computed by the CRS authors. As described in the text, this research relied on
historical newspapers, official presidential papers, and CRS correspondence with Presidential Libraries. Artemus Ward’s, Deciding to Leave: The Politics of Retirement from the
United States Supreme Court (Albany: State University of New York Press, 2003) was especially useful in compiling data on the reasons why Justices left the bench.




Note: For a listing of all Supreme Court nominations made during the 1900-2006 period and, for each nomination, the dates of the “major events” accounted for in the
columns in Table 3, see the preceding Table 1. For a listing, for each nomination, of the duration in days between major events in the Supreme Court nomination-and-
confirmation process, see Table 2.
a. In Table 3, the median amount of time from vacancy to final Senate action within each time period does not necessarily equal the sum of the medians for each stage in
the nomination-and-confirmation process. Likewise, the median length of time for all Senate actions (i.e., from nomination announcement to final Senate action) within
each time period does not equal the sum of the medians for each stage. The median identifies the mid-point for individual sets of observations. Because each stage of
the process can have a different number of observations, and because the data are also not a “normal” (i.e., “bell-shaped”) distribution, the sum of the medians for
individual stages generally is not equal to the median for the entire period. For more information, see chapter 4 in Ya-lun Chou, Statistical Analysis for Business and
Economics (New York: Elsevier, 1989). Due to updated data in Table 1 and Table 2, some of the summary statistics in Table 3 have changed from previous versions
of this report. This version of the report does not include, when calculating the interval for total Senate action (nomination announcement to final Senate action), cases
in which nominations lingered in the Senate, but on which the Senate took no final vote (e.g., the nomination was withdrawn, recommitted, etc.). If the Judiciary
Committee held hearings or held a final vote, those dates are included in median calculations.


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R. Sam Garrett Curtis W. Copeland
Analyst in American National Government Specialist in American National Government
rgarrett@crs.loc.gov, 7-6443 cwcopeland@crs.loc.gov, 7-0632
Denis Steven Rutkus
Specialist on the Federal Judiciary
srutkus@crs.loc.gov, 7-7162