Supreme Court Nominations: Senate Floor Procedure and Practice, 1789-2006

Prepared for Members and Committees of Congress

From 1789 through 2006, the President submitted to the Senate 158 nominations for positions on
the Supreme Court. Of these nominations, 146 received action on the floor of the Senate, and 122
were confirmed.
Senate floor consideration of the 146 nominees to reach the floor breaks down relatively naturally
into five patterns over time. First, from 1789 through about 1834, the Senate considered the
nominations on the floor a day after they were received from the President. The second period
(1835-1867) was distinguished by the beginning of referral of nominations to the Committee on
the Judiciary. The third period (1868-1921) was marked by rule changes that brought about more
formalization of the process. During the fourth period (1922-1967), the Senate began using the
Calendar Call to manage the consideration of Supreme Court nominations, and the final time
period, 1968 to the present, is marked by more roll call votes on confirmation and the use of
unanimous consent agreements to structure debate.
Of the 122 votes by which the Senate confirmed nominees, 73 took place by voice vote and 49 by
roll call, but on only 24 of the roll calls did 10 or more Senators vote against. Of the 36
nominations not confirmed, the Senate rejected 11 outright, and 12 others never received floor
consideration (some because of opposition; others were withdrawn). The remaining 13 reached
the floor but never received a final vote, usually because some procedural action terminated
consideration before a vote could occur (and the President later withdrew some of these).
Including nominations that received incomplete consideration, were rejected, or drew more than

10 negative votes, just 48 of the 158 experienced opposition that might be called “significant.”

Of the 146 nominations that reached the floor, 100 received one day of consideration, while 25
received more than two days, including four on which floor action took seven days or more. Of
these 146 nominations, optional procedural actions that could have been used to delay or block a
confirmation vote occurred on 58, of which 26 involved procedural roll calls. Among a wide
variety of procedural actions used, the more common ones have included motions to postpone,
recommit, and table; motions to proceed to consider or other complications in calling up; live
quorum calls, and unanimous consent agreements.
Neither extended consideration, the presence of extra procedural actions, nor the appearance of
“significant” opposition affords definitive evidence, by itself, that proceedings were contentious.
Some nominations considered for one day still faced procedural roll calls, some considered for
three days or more faced no optional procedures, and some opposed by more than 10 Senators
were still considered only briefly and without optional procedures. Of the 146 nominations to
reach the floor, however, 76 were confirmed in a single day of action with neither optional
procedural actions nor more than scattered opposition.
This report will be updated to reflect action on additional nominees.

Introduc tion ..................................................................................................................................... 1
Historical Trends in Floor Consideration........................................................................................2
Beginning Patterns, 1789-1834.................................................................................................3
Committee Referral, 1835-1867................................................................................................5
Increased Formalization, 1868-1922.........................................................................................7
The Calendar Call Becomes Formalized, 1922-1967...............................................................9
Unanimous Consent Agreements, 1968 to present...................................................................11
Characteristics of Floor Action......................................................................................................12
Forms of Disposition...............................................................................................................13
Varieties of Disposition.....................................................................................................13
Dispositions and the Extent of Opposition.......................................................................17
Length of Floor Action............................................................................................................19
Days of Floor Action.........................................................................................................19
Extended Consideration and Opposition...........................................................................20
Procedural Complexity............................................................................................................22
Optional Procedural Actions.............................................................................................22
Calling Up Nominations...................................................................................................24
Proceedings in the Course of Floor Action.......................................................................25
Procedural Complexity and Opposition............................................................................29
Relation Among Characteristics of Proceedings.....................................................................30
Table 1. Supreme Court Nominations That Received No Vote on Confirmation..........................15
Table 2. Dispositions of Supreme Court Nominations, Types of Vote, and Extent of
Opposition Indicated..................................................................................................................18
Table 3. Length of Floor Action on Supreme Court Nominations................................................20
Table 4. Procedural Actions Occurring During Floor Action on Supreme Court
Nomi nations ............................................................................................................................... 23
Table A-1. Selected Characteristics of Floor Proceedings on Supreme Court Nominations.........31
Table A-2. Selected Characteristics of Committee Action on Supreme Court Nominations........38
Appendix. Selected Characteristics of Senate Action on Supreme Court Nominations................31
Author Contact Information..........................................................................................................45

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

1 Michael J. Gerhardt, The Federal Appointment Process: A Constitutional and Historical Analysis (Durham, NC:
Duke University Press, 2000), p. 162; archived CRS Report 89-253, Cabinet and Other High Level Nominations that
Failed to be Confirmed, 1789-1989, by Rogelio Garcia. For more information, Members of Congress and their staff
should contact Betsy Palmer.
2 CRS Report RL31171, Supreme Court Nominations Not Confirmed, 1789-2004, by Henry Hogue; archived CRS
Report 89-253, Cabinet and Other High Level Nominations that Failed to be Confirmed, 1789-1989.
3 A list of all 158 nominations appears as an Appendix to this report, giving for each the full name, year, disposition,
and information on the form of consideration. Discussion in the text identifies nominations by surname and year,
facilitating reference to fuller information in the Appendix. In cases in which an individual was nominated twice in the
same year, the suffixes-1” and “-2” are used after the date to distinguish the first from the second nomination.
4 The 158 nominations involved only 139 different individuals, because on 11 occasions, a President resubmitted the
name of an individual previously nominated but not confirmed, and on another eight occasions, a President nominated

Supreme Court confirmation debates, of course, do not occur in a vacuum. They are a product of
the President making the choice, the state of the Senate at the time, the nominee and his or her
views, and the prevailing mood of the country. These elements, while critical to understanding
specific cases, are not considered in this report, and discussions of them can be found in other 5
reports on the Supreme Court. This report focuses on answering a very basic question: what
kinds of actions the Senate has taken during consideration of Supreme Court nominees, how they
have changed over time, and how they have affected the process of confirmation.
The emphasis of this report is on the 146 nominations on which some form of formal proceedings
took place on the Senate floor, not on the ways in which the nominations might have been
handled in committee or other pre-floor stages. The information presented was drawn from a
comprehensive search of the Executive Journals of the Senate, which are its official record of
procedural actions taken in relation to executive business (i.e., nominations and treaties, which
are the forms of business submitted to the Senate by the President). For recent Congresses for
which the Journal is not yet available, information was taken from the Congressional Record and
the Nominations data base of the congressional Legislative Information System.
The following discussion first sketches the changing patterns of consideration that have been
normal in successive historical periods since 1789, noting their relation to changes in the
procedural rules and practice of the Senate. For each period, it not only describes normal and
exceptional practice, but also provides examples of proceedings that were either typical or
notable. The report then successively addresses three individual characteristics of floor action on
these nominations: the dispositions the Senate made of them, the length of floor consideration,
and the kinds of procedural action taken during consideration.

Although the Constitution mandates a role for the Senate in the consideration of nominees to the
Supreme Court, it does not include any specific method for doing so. The process by which the
Senate has considered these nominations has typically included several stages, from receipt and
committee referral through committee consideration and reporting, to scheduling for floor action,
followed by floor debate and a final vote. Within this broad outline, the Senate has answered the
basic question—what should the procedure be for consideration of nominations?—in different
ways at different times.
A review of all Supreme Court nominations since 1789 yields two general conclusions about the
procedures used. First, the Senate has not felt bound to consider each nomination in exactly the
same way that the others before it were considered. Although some Supreme Court nominations,
for example, never reached the Senate floor (and hence, did not received a vote), the Senate spent

either a sitting or a former Justice to be Chief Justice. Of the 139 individuals nominated, the Senate confirmed 116,
leaving 23 on whom the Senate never took favorable action. Of the 116 confirmed, five never served because they
declined the office, and one died before assuming it, so that 110 people (all but two of them men) have served as
Justices of the Supreme Court. See CRS Report RL33225, Supreme Court Nominations, 1789-2005: Actions by the
Senate, the Judiciary Committee, and the President, by Denis Steven Rutkus and Maureen Bearden.
5 See CRS Report RL31989, Supreme Court Appointment Process: Roles of the President, Judiciary Committee, and
Senate, by Denis Steven Rutkus, and CRS Report RL32821, The Chief Justice of the United States: Responsibilities of
the Office and Process for Appointment, by Denis Steven Rutkus and Lorraine H. Tong.

numerous days debating the merits of other nominations. Neither of those practices has been
routine, but their use shows how the Senate has reserved to itself the right to take the course of
action that it believes best suits consideration of a particular nomination. This stance becomes
even more evident when the Senate considers a well-known person for a Supreme Court seat. The
Senate received, debated and confirmed the nomination of former President William Howard Taft
to be Chief Justice on the same day, for example.
Second, notwithstanding the variations in the confirmation system, the Senate’s process has
tended to become longer and more formal over time. Although members of the first Supreme
Court were confirmed just two days after their nominations were received, the norm in modern 6
times has tended toward weeks of Senate consideration, if not months. Early in the Senate’s
history, it was not typical for Supreme Court nominations to be referred to committee at all; by
modern times, it was the norm for the Senate Committee on the Judiciary to spend significant
time reviewing nominees.
A study of the 158 nominations sent to the Senate finds that the Senate’s floor consideration of
Supreme Court nominations breaks down relatively naturally into five patterns over time.
During this time, the norm for Senate consideration of a Supreme Court nomination was that the
chamber considered the nomination, as a matter of course, on the second day after the nomination
had been received from the President. There was no routine referral to committee, although at
least one nominee, Alexander Wolcott, was referred to a select committee in 1811 (his nomination
was defeated). From the beginning, the Senate has considered nominations in executive session,
that portion of the Senate’s business that was established to consider business that comes directly
from the President (nominations and treaties). At this time, executive session also meant that the
doors were closed, only Senators and select staff were permitted to be in the chamber and the 7
proceedings were to remain secret.
The journal which records the Senate’s action on nominations, the Executive Journal, listed no
motion to consider these early nominations, just a simple note that “the Senate proceeded to
consider” the message from the President. The message from the President became the de facto
method of organizing the nominations, apparently representing a precursor of the Calendar Call
the Senate was to employ later. Of the 31 nominations sent to the Senate during this period, all 28
nominations that were confirmed were done by voice vote; the two rejections were by roll call
(one nomination was considered by the Senate but left unfinished).
Also, the normal period of floor consideration during this period was one day for each
nomination. Five nominations were considered for more than one day: the three nominations not
confirmed, Wolcott, John Rutledge (1795) and John J. Crittenden (1828), and two others, that of
Alfred Moore (1799) and Robert Trimble (1826).

6 CRS Report RL33118, Speed of Presidential and Senate Actions on Supreme Court Nominations, 1900-2005, by R.
Sam Garrett, Denis Steven Rutkus, and Curtis W. Copeland.
7 The Senate decided to open its deliberations to the public on treaties and nominations in 1929. SeeThe Calendar
Call Becomes Formalized, 1922-1967,” below.

The first set of Senate rules, developed and adopted in 1789, did not include any specific
provisions for handling nominations. In 1806, the Senate adopted a general revision of its rules,
which included a new provision on nominations. This rule required that “when nominations shall
be made in writing by the President of the United States to the Senate, a future day shall be 8
assigned, unless the Senate unanimously direct otherwise, for taking them into consideration.”
Despite adoption of this rule, however, there is no indication in the Journal that the Senate either
fixed a date for consideration of nominations when they were received, or that the Senate waived
this rule.
This pattern of consideration is shown in the confirmation of the very first Supreme Court, in the
following case study.
The court’s first six members, a Chief Justice and five Associate Justices, were nominated by
President George Washington on September 24, 1789. The nominations were not referred to
committee. These men were personally known to many, if not all, members of the Senate, and
there was no extensive investigation into their background. On September 26, the Senate
proceeded to consider each of the six men, and on each, “on the question to advise and consent 9
thereto, it passed in the affirmative.” There is no indication of lengthy debate; all six nominations
were confirmed on the same day, in the same way. John Jay was confirmed as Chief Justice, and
John Rutledge, of South Carolina, James Wilson, of Pennsylvania, William Cushing, of
Massachusetts, Robert H. Harrison, of Maryland, and John Blair, of Virginia, were confirmed as
Associate Justices.
Although the vast majority of nominations during this time was handled in the same way as the
above, there were instances of extraordinary procedure, particularly when the nomination
appeared to be controversial, as shown in the following case study.
On December 17, 1828, President John Quincy Adams nominated John Crittenden, a Kentucky
lawyer, to be an Associate Justice of the Supreme Court, to replace Justice Robert Trimble, who
had died. The nomination took place after Adams’ successor, Andrew Jackson, had been elected
in November. Opposition to Crittenden by supporters of Jackson prevented the Senate from 10
confirming him.

8 U.S. Congress, Senate, History of the Committee on Rules and Administration, Senate Doc. 96-27, 96th Cong., 1st
sess., prepared by Floyd M. Riddick, Parliamentarian Emeritus, with the assistance of Louise M. McPherson
(Washington: GPO, 1980), p. 10. The Senate has adopted general revisions of its rules just seven times since 1789, and
this book includes each of these revisions. The Senate routinely makes changes to its rules in a piecemeal fashion, and
sometimes the general revisions include changes that had actually been made earlier in time. To date, however, this
book is the best source for changes in Senate rules over time.
9 Journal of the Executive Proceedings of the Senate, Sept. 26, 1789, p. 29, available at
query/r?ammem/hlaw:@field(DOCID+@lit(ej00135)), accessed on Jan. 20, 2006. (Hereafter cited as Senate Executive
10 J. Myron Jacobstein and Roy M. Mersky, The Rejected: Sketches of the 26 Men Nominated for the Supreme Court
but Not Confirmed by the Senate (Milpitas, CA: Toucan Valley Publications, 1993), pp. 19-23.

Crittenden’s supporters did not give in without a fight, and the Senate debated the nomination for
nine days. In an unusual twist, the Senate debated a resolution on the nomination, rather than the
nomination itself. The resolution said:
Resolved, That it is not expedient to act upon the nomination of John I. Crittenden, as a
Justice of the Supreme Court of the United States, until the Senate shall have acted finally on
the report of the Judiciary Committee, relative to the amendment of the Judicial System of 11
the United States.
A lengthy amendment was offered to the above resolution, which, in essence, said that it was the
duty of the President to fill vacant slots no matter when in the course of the administration they
occurred. An amendment to the amendment was then offered which stated:
That the duty of the Senate to confirm or reject the nominations of the President, is as
imperative as his duty to nominate; that such has heretofore been the settled practice of the 12
government; and that it is not now expedient or proper to alter it.
The Senate rejected this amendment to the amendment by voice vote, voted 17-24 to reject the
original amendment, and then voted 23-17 on February 12, 1829, to adopt the original resolution
declaring it “not expedient” to act on the Crittenden nomination. By this action, the early Senate
declined to endorse the principle that proper practice required it to consider and proceed to a final
vote on every nomination.
A new pattern of bringing up and considering Supreme Court nomination emerged in 1835, when
the Senate began to refer nominations routinely to the Senate Committee on the Judiciary, which
had been created in 1816. Once the committee reported the nomination to the Senate, the chamber
tended to act upon it immediately. In most cases, the nomination was reported and then
confirmed, almost as one action. As with the previous practice, most of these confirmations were
accomplished by voice vote. In some cases, a Senator, apparently opposed to a particular
nomination, would move to table the nomination immediately after it was reported from
committee. The effect of a motion to table, however, was not the same as it is in current Senate
parliamentary practice, where the motion, if successful, has the same effect as rejection. At this
point in the development of the Senate, it appears that the motion to table had an effect more like
a motion to postpone, and was used as a way to avoid taking action on the nomination on that
day. This period lasted roughly through 1867.
When the Senate considered the nomination of Roger B. Taney to be Chief Justice in 1835, for
example, the nomination was immediately tabled after the committee reported it. Later, however,
the Senate voted 25-19 to proceed to consider the nomination, and he was confirmed.
The nomination of Robert C. Grier shows the typical features of this time period.

11 Senate Executive Journal, Jan. 26, 1829, p. 626.
12 Ibid, p. 638.

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

13 David G. Savage, ed., Guide to the U.S. Supreme Court, 4th ed. (Washington: CQ Press, 2004), pp. 945-946.
14 Jacobstein and Mersky, The Rejected, pp. 33-41.
15 Senate Executive Journal, June 17, 1844, p. 353.

Tyler then sent several other appointment messages to the Senate, which were read. The Senate
confirmed several of the other appointments. The journal then records a dispute over whether the
Senate should receive a further message from the President, as the time previously set to end the
Congress had arrived. Senators agreed to hear the message, which read “I withdraw the
nomination of John C. Spencer to be associate justice of the Supreme Court of the United States,
and I renominate Reuben H. Walworth to be associate justice of the Supreme Court of the United
A motion was made to consider Walworth, but objection was heard, and the Senate then 16
adjourned sine die.
In 1868, the Senate passed another general revision of its rules. It contained a lengthier and far
more specific method for dealing with nominations.
When nominations shall be made by the President of the United States to the Senate, they
shall, unless otherwise ordered by the Senate, be referred to appropriate committees; and the
final question on every nomination shall be Will the Senate advise and consent to this
nomination?which question shall not be put on the same day on which the nomination is
received nor on the day on which it may be reported by committee, unless by unanimous
consent of the Senate. Nominations neither approved nor rejected by the Senate during the
session at which they are made shall not be acted upon at any succeeding session without
being again made by the President; and if the Senate shall adjourn or take a recess for more
than thirty days, all nominations pending and not finally acted upon at the time of such
adjournment or recess shall be returned to the President and shall not be afterwards acted
upon, unless again submitted to the Senate by the President; and all motions pending to
reconsider a vote upon a nomination shall fall on such adjournment or recess; and the
Secretary of the Senate shall thereupon make out and furnish to the heads of departments and 17
other officers the list of nominations rejected or not confirmed, as required by law.
This rule codified what had since 1835 become the practice of the Senate, at least in regard to
Supreme Court nominations, of referring the nomination to committee. It also called for at least a
one day layover from the time a committee reported on a nomination to Senate action on that
nomination, unless the Senate decided by unanimous consent to do otherwise.
Despite the rule, however, the Senate did tend to decide otherwise. Of the 41 nominations in this
period, nearly half, 18, were considered by the Senate by unanimous consent on the same day
they were reported out of committee. Nine nominations were considered within two days of the
committee’s report. The remaining 10 nominations which saw floor action came up on the floor
more than two days after the committee reported, sometimes significantly more than two days
later. In the case of Melville W. Fuller to be Chief Justice, for example, the Senate took up the
nomination 17 days after the committee reported it.
In a change from past practice, the Senate Committee on the Judiciary began issuing reports that
characterized the committee’s support for the nomination: the committee would usually report

16 Ibid, p. 354.
17 Riddick, History of the Committee on Rules and Administration, p. 26.

favorably, but sometimes adversely. Prior to 1869, the committee had simply reported the
nomination, without such characterizations.
Roll call votes on the confirmation of the pending nomination became more common during this
period, occurring on 16 of the 41 nominations. The Senate rejected three nominations decided by
roll call votes and confirmed the 13 others.
The nomination of William B. Woods illustrates the key patterns of consideration at this time.
When Associate Justice William Strong resigned, President Rutherford B. Hayes looked for a
southerner to replace him. Woods was born and educated in the north, and had been a leader in
the Ohio legislature and subsequently a Union general. After the war, however, he had settled in
Alabama, and had become a circuit court judge on the Fifth Circuit. Hayes nominated Woods on
December 15, 1880. The nomination was referred to the Judiciary Committee, which reported it
favorably on December 20. The next day the Senate considered the nomination and, by a vote of 18

39-8, confirmed it.

Also during this period, however, confirmation ceased to be virtually automatic for Supreme
Court nominations, even when the nominee was a sitting Senator, as illustrated by the case of
George E. Badger.
On January 10, 1853, President Millard Fillmore nominated George E. Badger to be an Associate
Justice, to replace Justice John McKinley, who had died. Although Fillmore, a Whig, was a “lame
duck” President following the fall election of Democrat Franklin Pierce, he nevertheless desired
to place a nominee on the Supreme Court. Badger, who was an incumbent Senator from North
Carolina and who had served as Secretary of the Navy under Presidents Harrison and Tyler,
would seem to have been a good choice. “It was thought that the Senate would exercise 19
Senatorial courtesy and not reject a fellow a Senator.”
The Senate, however, was controlled by Democrats, by a margin of 38 Democrats to 22 Whigs
and 2 Free Soilers. The Senate debated the Badger nomination for portions of four days. Several
times the nomination was postponed, and the Senate voted 26-25 to adjourn during one day of
debate on the nomination. Finally, on February 11, the Senate agreed by a vote of 26-25 to
postpone consideration of the nomination until March 4, the date when the term of the Congress
would expire and the new President would take office.
Debates on Supreme Court nominations during these years still took place behind closed doors,
and Senators were supposed to maintain the secrecy of these proceedings. The nomination of
Ebenezer Rockwood Hoar is one of the few instances in which some information is available
about what went on during the Senate debate.

18 Savage, Guide to the U.S. Supreme Court, pp. 958-959.
19 Jacobstein and Mersky, The Rejected, pp. 53-59.

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


Beginning in 1922, the Senate began to call up Supreme Court nominations under a system
known as the Call of the Calendar or a Calendar Call. Under this procedure, the Senate would
consider the nominations that had been reported by committee and placed on the Executive
Calendar in the order in which they appeared on that calendar. Under this system, there was no

20 Moorfield Storey and Edward W. Emerson, Ebenezer Rockwood Hoar: A Memoir (Boston: Houghton Mifflin
Company, 1911), p. 182.
21 Ibid., pp.189-190, 191.

need to make a motion or ask unanimous consent to take up a Supreme Court nomination. The
Senate would instead begin with the first available nomination and work its way through the
calendar until reaching the Supreme Court nomination. This practice appears to represent a
formalization of the process used from 1868 to 1922.
Twenty of the 30 Supreme Court nominations during this time period came up when their place
on the calendar had been reached. For a nomination that might have been experiencing difficulty,
the Senate could pass it over when it was reached on the call of the calendar. It would come up
again the next time the Senate took up the calendar. The Senate also called up several
nominations out of order by unanimous consent during this time. This procedure was used,
particularly, for those nominations on which there was no controversy, such as Edward T. Sanford
in 1923 and Byron White and Arthur J. Goldberg in 1962.
Another major development, as well, took place early in this period: debate on nominations
became public. After years of debating the issue, in 1929 the Senate decided to conduct its
executive business (consideration of treaties and nominations) in open session. Increasingly in the
preceding years, although the doors had been closed and debate on nominations was supposed to
remain secret, very often detail of the sessions would leak out to the press. In addition, the rule of
secrecy had been set aside several times, so that certain debates, such as that on Louis D.
Brandeis to be an Associate Justice in 1916, could be opened to the public.
The immediate trigger for the rules change was the disclosure, by the United Press, of the roll call
vote on the nomination of Roy O. West to be Secretary of the Interior. Soon after, UP also
published the vote on the nomination of former Senator Irvine Lenroot to be a judge of the
Customs Court of Appeals. The Senate Rules Committee began an investigation into who leaked
the Lenroot vote, and, for a variety of reasons, it was forced to hold this inquiry in open session.
The reporter, Paul Mallon, refused to disclose who his source had been, and the committee came
to no conclusion on the matter. The Senate then considered a rules change that would have
allowed a majority to vote to open any executive session. An alternative was proposed to make all 22
debates open unless a majority voted to close them. The Senate approved this amendment, 69-5.
The nomination of William O. Douglas shows how the Calendar Call operated when there was
President Roosevelt nominated Douglas to be an Associate Justice on March 20, 1939, to replace
retiring Justice Louis D. Brandeis. Douglas was the head of the Securities and Exchange
Commission, and he seemed well-known to the Senate. The Senate Committee on the Judiciary
referred the nomination to a subcommittee, which held a hearing at which no one testified. The
subcommittee unanimously reported the nomination to the full committee, which then
unanimously reported the nomination favorably to the full Senate on March 27. A news report 23
stated that Douglas attended the full committee’s meeting so that he could “meet the members.”

22 Joseph P. Harris, The Advice and Consent of the Senate (New York: Greenwood Press, 1968), pp. 249-255.
23Senators Approve the Nomination of William O. Douglas,” New York Times, Mar. 25, 1939, p. 3; Associated Press,
Committee Approval Is Given to Douglas for Supreme Court,” Chicago Daily Tribune, Mar. 28, 1939, p. 3.

Between the committee session and floor debate, however, opposition developed. Senator Lynn
Frazier of North Dakota argued Douglas had an improper relationship with the leaders of the New
York Stock Exchange. The nomination was passed over twice on the Call of the Calendar, so that
there could be full debate about the nomination. In particular, the first time the nomination was
passed over it was because Senator Frazier could not be in the chamber, and he wanted the Senate
to wait until he was able to be a part of the debate. Three live quorum calls were taken during
consideration of the nomination. The first of these was demanded at the start of the debate, and
the second during the middle of Senator Frazier’s speech. The third live quorum call was
demanded just prior to the final speech of the debate, made by Senator Maloney in favor of the 24
nomination. The vote to confirm Douglas was 62-4, with 30 Senators not voting.
Senate practices of floor consideration in the modern era has generally been dominated by
unanimous consent agreements, agreements where Senators agree to limit their rights to debate
and take procedural actions, so it should come as no surprise that these agreements have also been
key elements in the consideration of nominations in this era. From about 1968 to the present,
unanimous consent agreements have been reached that typically provide for when the Senate will
take up nominations, limit and structure the debate, and, in many instances, provide for a final
confirmation vote.
These agreements allow the Senate leadership to move to consider a nomination at a time, and in
a way, they desire, instead of waiting until the nomination is reached on the Calendar. In fact,
majority leaders began to ask unanimous consent to go into executive session to consider a
specific Supreme Court nomination. This proceeding had been used as early as 1959 for the
consideration of the nomination of Potter Stewart, and it was the method used, for example, when
Majority Leader Mike Mansfield called up Harry A. Blackmun for Senate floor consideration in

1970. According to a later precedent of the Senate, a motion to go into executive session to 25

consider a specific nomination is not debatable, though the nomination itself is.
Another change also took place roughly around the same time. The Senate began to decide the
question of confirmation by roll call votes routinely. Since 1967, indeed, the Senate has evidently
come to consider it appropriate always to take roll call votes on Supreme Court nominations.
Typically, nominations during this period have also received longer floor consideration than in
any previous period.
A further characteristic of the modern era is the advent of cloture. The Senate cloture rule, which
permits a super-majority to limit the time for consideration of a matter by a roll call vote, did not
exist until 1917, and could not be applied to nominations until 1949. Since then, supporters have
attempted to use the motion to impose limits on the consideration of only three Supreme Court
nominations. Cloture was successful on one of the three nominations, the 1986 nomination of
William H. Rehnquist to Chief Justice. In 1971, Rehnquist had been confirmed despite the failure
of a cloture vote on his nomination. In 1968, the Senate failed to get cloture on the motion to

24Associate Justice of the Supreme Court of the United States,” remarks in Senate, Congressional Record, vol. 84,
Apr. 3 and 4, 1939, pp. 3705-3713, 3773-3788. For more on Fraziers concerns, seeFrazier Attacks Choice of
Douglas, New York Times, Apr. 4, 1939, p. 15.
25 Floyd M. Riddick and Alan S. Frumin, Riddick’s Senate Procedure, 101st Cong., 2nd sess., S. Doc. 101-28
(Washington: GPO, 1992), p. 941.

proceed to consider the nomination of Abe Fortas to be Chief Justice, and the nomination was
then withdrawn by the President.
The 1971 nomination of William H. Rehnquist illustrates the use of cloture on a Supreme Court
President Nixon named Rehnquist to be an Associate Justice of the Supreme Court on October 26,
1971, to replace retiring Justice John Marshall Harlan. Rehnquist had been Assistant Attorney
General for two years and was well known on Capitol Hill, but opponents contended that he had 26
shown insufficient commitment to civil rights and civil liberties.
The Judiciary Committee held five days of hearings on the Rehnquist nomination, and opponents
delayed the Committee vote on recommending the nomination to the full Senate a week. The
Committee voted 12-4 to report the nomination favorably. The nomination was debated on the
Senate floor for five days. A motion to invoke cloture, and limit debate on the nomination, failed
on the fifth day by a vote of 52-42 (at that time, a two-thirds vote was required to succeed). A
motion that consideration of the nomination be postponed until mid-January was defeated by a
vote of 22-70. The Senate then agreed, by unanimous consent, to take a vote on the nomination at
5 p.m. that day. Rehnquist was confirmed by a vote of 68-26. Subsequently, in 1986, he was
confirmed as Chief Justice of the United States by a Senate vote of 65-33, after proceedings in 27
which cloture was invoked.

Senate floor proceedings on Supreme Court nominations might be distinguished in terms of a
wide variety of different characteristics. The present study focuses chiefly on three that are
readily identifiable and often referred to:
• the kind of vote (or other action) by which the Senate disposed of the
• the amount of time the Senate spent considering them on the floor; and
• the kinds of procedural action that occurred during their consideration.
Each of these represents a salient element of the procedural context in which a nomination is
considered. An understanding of the variety of forms that proceedings can take in each of these
dimensions may help to illuminate practical concerns about courses of action that might occur on
a given nomination.
A focus on these three characteristics seems appropriate also because each might afford an
indication of the amount of controversy, contention, or opposition that surrounds a nomination.

26 Glen Elasser,Rehnquist Assailed as Segregationist,” Chicago Tribune, Nov. 10, 1971, p. 5; Spencer Rich,
Rehnquist Civil Liberties Stance Eyed,” Washington Post, Oct. 26, 1971, p. A1.
27Court Nominees: Powell and Rehnquist Confirmed,” Congressional Quarterly Almanac (Washington:
Congressional Quarterly Press, 1971), pp. 851-859.

For example, if the Senate approves a nomination by a voice vote after a single day of
consideration, during which no procedural actions occur, one might reasonably conclude that it
involved little opposition or controversy. As the following discussion indicates, however, none of
these three characteristics of consideration can simply be equated with the level of controversy.
An obvious initial distinction among the 158 nominations concerns the ways the Senate disposed
of them. In the broadest terms, the Senate confirmed 122 and failed to confirm the remaining 36.
This breakdown, however, conflates the 11 nominations that the Senate affirmatively rejected
with the 25 on which no final vote occurred. Further, the 25 without a final vote include 12 that
never received floor consideration at all and 13 that were called up, but on which the Senate never
finished action. Clarifying the meaning and implications of various forms of disposition requires
examining each of these subgroups.
The 122 nominations confirmed make up 92% of the 133 on which the Senate reached a final
vote. Well over half the 122 confirmations (73, or 62% of the 122 confirmed) took place by voice 28
vote, and the remaining 49 (38% of confirmations) by roll call. In earlier periods of American
history, both voice and roll call votes occurred, but, as noted in the preceding section, in recent
decades roll calls have become universal. The closest vote by which a nomination was confirmed
was that of Matthews (1881-2), by 24-23; other close votes to confirm include those for Thomas
(1991), by 52-48; Lamar (1888), by 32-28; and Clifford (1857), by 26-23.
The 11 Supreme Court nominations the Senate has rejected make up the remaining 8% of those
on which the Senate reached a final vote. All 11 of these rejections occurred on roll calls; the
Senate has never rejected a nominee by voice vote. As with confirmations, these 11 rejections
occurred at points scattered throughout American history. The earliest was Rutledge for Chief
Justice in 1795; the most recent, Bork in 1987. Bork’s was also the nomination rejected by the
widest margin (42-58); the closest was that of Parker (1930), who was rejected by 39-41. The
median margin of defeat, however, has been nine votes. Only in one instance (Spencer, 1844-2)
has a President resubmitted a nomination the Senate had previously rejected, and then, not
surprisingly, without success.
The Senate conducted no final vote on 25 nominations. Table 1 lists these 25 nominations and
notes some pertinent contextual features of each. They make up 16% of the total number of high
court nominations submitted, an indication of the extent to which the Senate has not always

28 For this purpose, confirmation by unanimous consent is included with voice votes. This form of disposition occurred
at least 10 times, especially between 1923 and 1945.

considered itself obligated to proceed to a final up-or-down vote on every Supreme Court
nomination presented to it.
These 25 nominations fall into two groups: (1) 13 on which the Senate initiated floor action, but
never completed it; and (2) 12 that never reached the floor at all. For purposes of this report, all
formal proceedings in the full Senate in relation to a nomination, once it was available for floor
consideration, were counted as floor action. For example, a nomination was treated as receiving
floor action even if the Senate never actually proceeded to its consideration, but did decline to 29
grant unanimous consent to do so. Overall, accordingly, the Senate has taken some floor action
on 92% of all nominations submitted, and proceeded to a final vote on 84%.
The 12 occasions on which the Senate has failed to bring a nomination to the floor have also been
scattered throughout history. The circumstances of their occurrence have varied, as well. Five of
the 12 were submitted quite late in a session, so that the Senate may simply have lacked time to
act. Six others were withdrawn before floor consideration could commence, including instances
from Paterson in 1793 (first nomination) to Miers in 2005. The last of the 12 (Stanbery, 1866)
became moot because Congress reduced the size of the Court, thereby abolishing the vacancy.
This distribution of conditions for the lack of floor action suggests that the Senate has exhibited
little tendency to leave Supreme Court nominations without a final vote simply out of reluctance
to act, or to use inaction as an indirect means of denying confirmation. Four of the five
nominations late in a session, and two of the six withdrawn, were later resubmitted (usually at the
following session), and the Senate proceeded to a final vote on each of the resubmitted
nominations. The other four withdrawn nominations were never resubmitted. Overall, as a result,
only two of these 12 nominations continued to be available to the Senate and yet never received
floor action. These included one of the late nominations and the one that became moot.
These circumstances also indicate that the simple absence of floor consideration cannot be taken
to imply that the Senate found the nomination less than acceptable. Of the five nominations in
this group that were later resubmitted, the Senate confirmed four, rejecting only one. In addition,
at least some of the withdrawals evidently occurred for reasons unrelated to Senate sentiment
about the nomination. Paterson (1793-1), for example, who was among those later resubmitted
and confirmed, was initially withdrawn only because he was constitutionally ineligible to sit on
the Court at that point, as he had previously been elected to a Senate term that had not yet
expired, and during which the salary of the Justices had been increased. The nomination of
Roberts (2005-1) was withdrawn because the President decided to nominate him instead for the
post of Chief Justice, which became available subsequent to his original submission of the 30
Roberts’ nomination.
Among nominations not resubmitted, Thornberry’s (1968) was withdrawn simply because his
vacancy was eliminated by the failure of a concurrent nomination of a sitting Justice to be Chief
Justice. The late nomination of Micou (1853) presents a more ambiguous case, but the immediate

29 The use of this inclusive criterion of floor action accounts for certain small differences between the figures presented
here and in CRS Report RL31171, Supreme Court Nominations Not Confirmed, 1789-2005, by Henry B. Hogue.
30 Jacobstein and Mersky, The Rejected, p. 59.

reason it was not resubmitted was that the lame duck President who originally submitted it had
left office.
On other nominations in this group, circumstances suggest that the Senate’s inaction did reflect
the presence of opposition. Most clearly, the congressional action to abolish Stanbery’s vacancy 31
(1866) appears to reveal emphatic objection to his nomination. Also, after Hornblower’s initial
nomination received no action late in a session (1893-1), the Senate rejected his renomination
outright. In the case of Spencer, the Senate had already rejected the nomination once before the 32
President later resubmitted and withdrew it on the same day (1844). There also appears reason
to conclude that the withdrawals of both Cushing (1874) and Miers (2005) represent responses to 33
expressed opposition.
The 13 nominations that received floor action, but no final vote, reflect a different distribution of
circumstances. Consideration of one of the 13 (Read, 1845) appears simply to have begun too late
in a session to be completed, but the Senate appears to have laid aside each of the other 12 as a
consequence of unfavorable action on some procedural motion. The specific actions taken in
these cases, noted in Table 1 and described in more detail in the section on “Procedural
Complexity,” were seldom ones that conclusively precluded further consideration. Instead, the
Senate seems simply to have taken these actions as demonstrating a lack of sufficient support for
confirmation. The President, correspondingly, subsequently withdrew six of these nominations.
Table 1. Supreme Court Nominations That Received No Vote on Confirmation
Later Action
on Individual Last Procedural With-
Floor Action Nomination drawn?a Renom- Con- Total
inated?a firmed?b
No Floor Action 12
None Harriet Miers, 2005 yes
John Roberts, 2005 yes yes yes
Homer Thornberry, 1968 yes
John M. Harlan, 1954 yes yes
Pierce Butler, 1922-1 yes yes
William Hornblower, 1893-1 yes rejected
Stanley Matthews, 1881-1 yes yes
Caleb Cushing, 1874 yes
Henry Stanbery, 1866
William Micou, 1853
John C. Spencer, 1844-2 yes
William Paterson, 1793-1 yes yes yes
Floor Action Without Vote on Confirmation 13
Tabled Edward A. Bradford, 1852

31 Ibid., pp. 70-72. In the following session, nevertheless, Stanbery was nominated and confirmed as Attorney General.
32 Ibid., pp. 37-38.
33 Ibid, pp. 87-93; Robin Toner, David D. Kirkpatrick and Anne E. Kornblut, “Steady Erosion in Support Undercut
Nomination,” New York Times, Oct. 28, 2005, p. 16.

Later Action
on Individual Last Procedural With-
Floor Action Nomination drawn?a Renom- Con- Total
inated?a firmed?b
Edward King, 1845 yes
Reuben H. Walworth, 1845 yes
Reuben H. Walworth, 1844-1 yes yes no
Edward King, 1844 yes no
Postponedc George E. Badger, 1853
Roger B. Taney, 1835-1 yes yes
John J. Crittenden, 1828
Motion to consider Jeremiah S. Black, 1861
Motion to consider Reuben H. Walworth, 1844-2 yes no
met objection
Cloture failed on Abe Fortas, 1968 yes
motion to consider
Recommitted George H. Williams, 1874 yes
No procedures John M. Read, 1845d
Totals 11 10 6 25
Source: Senate Executive Journal. For 21st century nominations, congressional Legislative Information System (LIS)
and Congressional Record.
a. Blanks indicate that the action in question did not occur. For details on the reasons for withdrawal, see
accompanying text.
b. “No” indicates that no final vote occurred on the subsequent nomination. Blanks appear when there was no
subsequent nomination.
c. For details on the means by which these postponements occurred, see section on “Procedural
d. Nomination was taken up near the end of the session, and the Senate adjourned sine die before completing
The frequency of these proceedings may indicate the extent to which the Senate, in the presence
of opposition to a Supreme Court nomination, has been willing to give it consideration and yet
decline to proceed to an “up-or-down” vote. In recent times, the Senate has not often resorted to
this form of proceeding. Nine of the 13 instances occurred in the decade from 1844 to 1853, and
only two took place after the Civil War. The earliest instance occurred in 1828, when the Senate
set aside the Crittenden nomination until after a reorganization of the Judiciary (by which point 34
the nominating President would have left office). The most recent case was the Fortas
nomination for Chief Justice, which President Johnson withdrew in 1968 after supporters 35
mustered only 45 votes for cloture on the motion to proceed to consider the nomination.

34 Jacobstein and Mersky, The Rejected, pp. 21-23.
35 Under the rule then in effect, two-thirds of Senators present and voting were needed to invoke cloture. On the vote in
question, the required number would have been 59.

The left-hand columns of Table 2 summarize the preceding discussion of how the Senate has
disposed of Supreme Court nominations, showing that the Senate has confirmed more than three-
quarters of all nominations submitted to it, and more than nine of every ten on which it voted.
Indeed, as the middle columns show, the Senate has confirmed almost half of all Supreme Court
nominations ever submitted to it without even requiring a roll call vote. Roll calls, on the other
hand, have by no means been uncommon, occurring on three of every seven final votes, including
every one since 1967.
Neither the type nor the outcome of a vote, in itself, can be taken as affording a clear indication of
the extent of the opposition a nomination may have generated. In particular, although a voice vote
may reasonably be viewed as failing to indicate the presence of opposition, it could be rash to 36
presume that it demonstrates an absence of opposition. Conversely, although a roll call vote
may reflect the presence of extensive opposition, it may also occur when no such level of
opposition is present. In the years since 1968, eight of the 18 roll calls have registered fewer than
four “no” votes. More broadly, as Table 2 shows, almost half of all roll call votes on Supreme
Court nominations throughout history have involved fewer than 10 votes in opposition.

36 A salient example is provided by the confirmation of Goldberg in 1962, when one Senator explicitly asked to be
recorded in opposition even though the Senate was acting by voice vote.

Table 2. Dispositions of Supreme Court Nominations, Types of Vote, and Extent of Opposition Indicated
Outcome Type of Vote Extent of Opposition Indicated by Form of Disposition (see text)
Form of Disposition
Confirmed Rejected No Final Action Voicea Roll Call None Scattered or None “Significant” Indeterminate
Confirmed, voice votea 73 73 73
Confirmed, roll call vote, 25 25 25
fewer than 10 opposed
Confirmed, roll call vote, 24 24 24
10 or more opposed
Rejected (all by roll call vote) 11 11 11
Floor action without final vote 13 13 13
No floor action 12 12 12
iki/CRS-RL33247Total 122 11 25 73 60 25 98 48 12
s.orPercent of 158 total nominations 77 7 16 46 38 16 62 30 8
leakPercent of 133 nominations 92 8 55 45
reaching a vote
://wikiPercent of 146 nominations 67 33
httpreceiving floor action
Source: Senate Executive Journal; Table A-1.
a. Includes unanimous consent.

Taking the appearance of at least 10 “nay” votes as a rough threshold for the presence of
significant opposition permits a more meaningful judgment of the significance of these data on 37
the disposition of nominations. By this standard, 24 of the 49 roll calls by which nominations
were confirmed revealed “significant” opposition. Combining these 24 nominations with the 11
that were rejected, it may be said that just 35 of the Senate’s 133 votes on confirmation indicated
the presence of “significant” opposition.
By incorporating nominations that received no final vote into this approach, a unified account
may be given of what different outcomes on these nominations mean. The earlier discussion of
nominations that received floor action but no final vote suggested that this outcome typically
reflected the presence of opposition. The discussion of nominations that received no floor action,
on the other hand, concluded that this outcome has come about, on different occasions, both when
significant opposition was present and not. Accordingly, this disposition cannot, in itself, be taken
as an indicator of either circumstance.
The results of these considerations are summarized in the right-hand columns of Table 2. Its
figures include the 13 nominations on which floor action failed to result in a final vote as cases
that indicate “significant” opposition, but treat the 12 that never reached the floor as instances that
permit no definite conclusion about opposition. With these inclusions, the classification yields a 38
total of 48 nominations with dispositions that imply “significant” opposition. From this
perspective, accordingly, it can be held that just about two-thirds of the 146 Supreme Court
nominations reaching the Senate floor have met no more than scattered opposition.
Another salient characteristic in terms of which Supreme Court nominations vary is the length of
consideration they receive on the floor. As with forms of disposition, of course, length of
consideration can be established only for those nominations on which consideration occurs.
Accordingly, the data discussed in this section again reflect only the 146 nominations that reached
the floor.
The length of consideration of Supreme Court nominations is identified in Table 3 in terms of the 39
number of calendar days on which action took place on the nomination on the Senate floor. In
general, each day was counted on which any formal procedural action in relation to a nomination
occurred, even if the nomination itself was not formally under consideration on that day. For

37 In early days, when the Senate was much smaller, fewer than 10 negative votes might still have represented a
significant level of opposition. In practice, however, the rough standard proposed may reasonably be applied to all
periods, because until 1870, all nominations opposed by fewer than 14 Senators were opposed by fewer than five.
38 Alternatively, the 12 nominations without floor action might be incorporated into the classification on the basis of the
individual circumstances identified in their earlier discussion. The observations offered there suggest that five of the 12
might be taken as representing responses to opposition. The addition of these five would result in counting 53
nominations with “significant” opposition out of a total of 158, or 36%, a result but slightly different from that
displayed for only those nominations that reached the floor.
39 A more detailed measure, such as the number of hours consumed, would have been impracticable to compile,
especially for the years before 1929, when the Senate typically did all executive business in closed session. Number of
days, however, could be readily and definitively ascertained from the Executive Journal.

example, a day was counted on which a motion to proceed to consider a nomination was offered
or debated, even if the motion was defeated, or was not adopted until the following day.
Otherwise, for example, all Senate floor action on the Fortas nomination for Chief Justice (1968),
which occurred in its entirety pending a motion to proceed to consider the nomination, would not
be counted. On the other hand, days were not counted on which Senators made individual
speeches in relation to a nomination, but the Senate did not formally have it under consideration
on the floor, as happened extensively, for example, on the Rehnquist nomination for Associate
Justice (1971).
The data presented, accordingly, are more precisely described as presenting the length of “floor
action” than of formal “consideration” or of “debate.” In compiling these data, however, a few
actions were treated as exceptions to the standard just identified. Especially during the first half of th
the 19 century, for example, the Senate commonly referred newly received nominations to
committee through action taken on the floor. In more recent times, the Senate has sometimes
reached a unanimous consent agreement setting terms for consideration of a nomination in
advance of any actual consideration. When either such action was the only one taken in relation
to a nomination on a given day, the day was not counted as a day of consideration. A contrary
practice would tend to overstate the length of consideration of these nominations relative to others
to which the Senate actually devoted similar time, but on which similar actions occurred on the
same day as further steps, rather than on a preceding day.
Table 3 shows that, historically, the Senate has found a single day sufficient for floor action on
nearly two-thirds of all the nominations submitted (although this form of action has ceased to be
the norm in the years since 1967). For nominations receiving longer consideration, numbers
decline quickly as length of consideration rises, so that barely 10% of those reaching the floor
remained there for more than three days.
Table 3. Length of Floor Action on Supreme Court Nominations
Days Number of Nominations Nominations Disposition (if not confirmed) For Chief Justice?
1 100
2 21 [not listed]
3 10
4 5 John G. Roberts, 2005 yes
Charles Evans Hughes, 1930 yes
Harlan F. Stone, 1925
Joseph P. Bradley, 1870
Alexander Wolcott, 1811 rejected
5 4 Samuel A. Alito, 2005
Clarence Thomas, 1991 yes
William H. Rehnquist, 1986
William H. Rehnquist, 1971
6 2 Abe Fortas, 1968 unfinished yes
George E. Badger, 1853 unfinished
7 1 Clement Haynsworth Jr., 1970 rejected

Days Number of Nominations Nominations Disposition (if not confirmed) For Chief Justice?
8 1 John J. Parker, 1930 rejected
9 1 John J. Crittenden, 1828 unfinished
10-13 0
14 1 G. Harrold Carswell, 1970 rejected
Total 146
Source: Senate Executive Journal; Table A-1.
The more extended consideration given to this relative handful of nominations may rest on a
variety of causes. Assessment of their nature is likely to begin from the well understood
circumstance that opponents of a matter in the Senate may engage in extended debate as a means 40
of delaying or blocking final action. Accordingly, it might be natural to take the extent of floor
action as an indicator of the intensity of opposition to a nomination, and specifically of the
determination with which opponents attempted to delay its confirmation. Such a supposition
might be supported by the observation that none of the six nominations receiving more than five
days’ consideration was confirmed.
Other considerations, however, also may be pertinent. It may be significant, for example, that four
of the 15 nominations considered for more than three days were for Chief Justice; it may
plausibly be supposed that the Senate has generally tended to find these nominations as
necessitating more sustained consideration. More broadly, the Senate may well have been likely
to devote more time to nominations that were considered particularly important, for example, to
the balance or future course of the Court.
In addition, the data in Table 3 also suggest a trend toward longer consideration in more recent
times. Although extended consideration was not unheard of even in very early years (e.g.,
Wolcott, 1811, and Crittenden, 1828), seven of the 10 nominations receiving more than four days’
consideration occurred in 1968 or later, beginning with the Fortas nomination for Chief Justice.
This trend may be associated as much with generally observable developments in the way the
Senate handles its business as with any specific increase in controversy over nominations to the
These considerations suggest that the occurrence of extended consideration on Supreme Court
nominations cannot, in itself, be taken as a reliable indicator of strong opposition. Not only may
extended consideration occur for other reasons, but it is also not necessarily the case that even
determined opponents have always expressed their position by attempting to protract proceedings.
On the other hand, lengthy consideration may reasonably be viewed as a sign of the possibility
that opposition may have been present. Correspondingly, although the completion of
consideration on a single day cannot be taken to demonstrate an absence of opposition, it may
appropriately be viewed, more cautiously, as failing to afford evidence that significant opposition
was present.

40 These possibilities are discussed in more detail in CRS Report RL30360, Filibusters and Cloture in the Senate, by
Richard S. Beth and Stanley Bach.

Senate floor proceedings on Supreme Court nominations, like those on other matters, are
distinguishable not only in terms of the means of disposition and the length of time consumed,
but also by the procedural actions that may occur in the course of consideration. As with these
other characteristics of floor action, procedural actions can be identified only for the 146
nominations that reached the floor. Table 4 lists various forms of procedural action that have
occurred in the course of Senate floor consideration on these nominations and how often each has
appeared. It shows that no single procedure was used on more than about one in seven of the
Supreme Court nominations reaching the floor, but also that a half-dozen different procedures
were used at least half that often. No single procedure either stands out as especially characteristic
of proceedings on these nominations or clearly identifies any distinctive subgroup among them.
Instead, floor proceedings on Supreme Court nominations are more readily categorized, in this
respect, simply in terms of whether or not any procedural actions at all occurred beyond those
required in the course of consideration itself. Throughout history, floor action on Supreme Court
nominations has most often remained procedurally simple in this sense. Proceedings on 78 of the
146 nominations were procedurally simple in the sense of involving no optional procedural
actions. The remaining 68 nominations (47% of the total) may be identified, in this minimal
sense, as “procedurally complex.”
Procedurally complex nominations might be further distinguished in several ways, such as by the
number of procedural actions that occurred in the course of floor action or the extent to which
procedural actions were applied to other procedural actions (e.g., a motion to table a motion to
postpone). A more readily applicable criterion for this purpose, however, is whether any of the
procedural actions taken resulted in a roll call vote. Again as Table 4 shows, procedural roll calls
occurred on 26 of the 68 nominations on which any optional procedures were used (18% of the
total 146 nominations on which floor action occurred). This further distinction affords a rough
indicator of the intensity with which procedural action was pursued.
For some kinds of optional procedure used in relation to Supreme Court nominations, the
principal effect would have been to expedite rather than delay consideration. These included
chiefly (1) actions, taken either by motion or unanimous consent, to proceed to consider a
nomination on the same day reported; and (2) consent agreements assuring a final vote (either by
limiting debate or setting a time certain) that were reached before consideration began or on its
first day. In order to examine the potential use of optional procedures as means of pursuing
opposition to Supreme Court nominations, it is appropriate to exclude these forms of action from
consideration. The second column of Table 4 presents a count of optional procedures that could
potentially have been used for purposes of delay or opposition.
Using this criterion, 88 of the total 146 nominations reaching the floor (60%) may be said to have
been subject to no optional procedures that could have had the effect of delaying or terminating
consideration. This percentage is comparable to the 62% of nominations that faced no significant
opposition and the 68% that received action on only a single day. As with those other
characteristics of consideration, it would not be appropriate to take the absence of procedural
complexity as demonstrating the absence of opposition. It could reasonably be said, nevertheless,
that when nominations involve no procedural complexity, no positive inference may be drawn
from the procedural features of consideration that opposition or contention was present.

Conversely, the occurrence of procedural complexity, or even of procedural roll calls, cannot be
regarded as sufficient in itself to demonstrate the presence of opposition or contention, but may
reasonably be taken as cause to think that such opposition may have been present.
The occurrence of optional procedural actions is also related to the occasions, previously detailed
in Table 1, on which nominations reached the floor but failed to reach a final vote on
confirmation. In 12 of the 13 cases of incomplete consideration listed in Table 1, some optional
procedural action was the last one that occurred, and had the effect of terminating consideration.
In order to indicate some potential effects of optional procedural actions, the last column of Table

4 reproduces this information in summary form.

Table 4. Procedural Actions Occurring During Floor Action on Supreme Court
Number of Nominations on Which
the Procedural Action—
Procedural Action Had Effect of
Occurred Potentially Involved Delay Received a Roll Call Vote Terminating
Motion to postpone 19 19 8 3
Motion to recommit (or 14 14 8 1
Intervention in calling up 23a 13b n.a.c n.a.c
Motion to proceed to 13d 13d 3 2
Motion to lay on the 13 13 4 5
Live quorum call 11 11 n.a.c n.a.c
Motion to adjourn or 7e 7 6 0
Consent agreement for 17f 6g n.a.c n.a.c
final vote
Motion for cloture 4 4 4 1
Motion to reconsider 3 3 1 0
Total number of 68h 58h 26h 12
Source: Senate Executive Journal. For 21st century nominations, congressional Legislative Information System (LIS)
and Congressional Record.
a. Includes only the following: (1) objections to a request, made either by motion or by unanimous consent, to
proceed to consider a nomination on the same day reported; (2) passing a nomination over on calendar call;
and (3) unanimous consent arrangements (including those made by special order) providing for
consideration at a future time.
b. Includes only the following: (1) objections to a request, made either by motion to unanimous consent, to
proceed to consider a nomination on the same day reported; (2) passing a nomination over on calendar call;
and (3) unanimous consent arrangements before 1967 (including those made by special order) providing for
consideration at a future time.
c. Not applicable (see accompanying text).

d. Includes special orders for consideration that were established by vote; excludes motions that could have
been defeated by objection, which are included under (a)(1) and (b)(1) as “Interventions in calling up.”
e. Includes only those motions to adjourn or recess that were offered in executive session, and so could have
delayed or protracted consideration more than would normally have occurred.
f. Includes only consent agreements that assured the occurrence of a final vote, either by limiting total debate
time, setting a time certain for a final vote, or otherwise.
g. Includes only consent agreements that assured the occurrence of a final vote and were not reached until
after the first day of consideration.
h. For the first three data columns, the total displayed is less than the sum of the cell entries, because some
nominations involved more than one procedural action.
These 12 instances show that the effect of a procedural action in any individual case depends only
in part on the prescribed effect of the action. It is also affected, in some cases, by the procedural
context in which the action is undertaken, and in particular on whether it is integral to or
divergent from the routine practice of the time. Procedural context changes from case to case,
normal practice also has changed over the course of Senate history, and in some cases, the
prescribed effect of procedural actions has changed as well. Accordingly, the potential
significance of optional procedural actions may be clarified by reference to some of the points
initially developed in the section on “Historical Trends.” For this purpose, it is useful to look
separately at actions that affect how the Senate has taken up nominations and those that can occur
in the course of consideration.
The Senate has always taken up nominations under procedures governing action in executive
session, separate from those regulating legislative action (although occasionally, by unanimous
consent, it has considered a nomination “as in” executive session without actually going into an
executive session). It appears that for most of its history, from 1789 through 1967, the normal
practice of the Senate was to take up each nomination automatically when it was reached in the
consideration of executive business. In order to be eligible for consideration under this procedure,
a nomination apparently had to have become available for floor action at least one day previously.
Initially, nominations became available when received from the President; after 1835, when
nominations to the Supreme Court began routinely to be referred to committee, they normally
became available for consideration when reported. After about 1922, it appears, this proceeding
was formalized as a Call of the Calendar of nominations.
Sometimes, however, by unanimous consent, the Senate has taken up a nomination on the same
day reported or submitted. As previously noted, in fact, this proceeding was used for nearly half
of all nominations reaching the floor (18 of 41) from 1868 to 1922.
No departure from these routine forms of proceeding occurred before 1835, when the
nominations of Taney and Barbour, though eligible for the normal procedures, were called up
instead by a roll call vote on a motion to proceed to consider. Complications of a similar kind
were faced by Badger in 1853, when the Senate was unable to reach a vote on a motion to
proceed, and by Black in 1861, when the Senate defeated a motion to proceed on a roll call vote.
During roughly this same period, however (1844-1874), motions to proceed to consider were also
offered on seven other nominations that were eligible for normal consideration, but the Senate
adopted these motions in short order and by voice vote.

In the cases of both Badger and Black, the Senate also attempted to bring the nomination to the
floor through a special order providing that it proceed to consideration on a specified later day.
The Senate ultimately adopted a special order of this kind for Badger by voice vote, but never
accepted one for Black. On five Supreme Court nominations thereafter, through 1930, the Senate
used unanimous consent to establish special orders of this kind. These special orders represent
forerunners of the contemporary practice of reaching agreements in advance, by unanimous
consent, to take a matter up. In these earlier times, however, special orders seem to have been
used for these nominations only in unusual circumstances, to overcome difficulties in bringing a
matter to the floor, and their effect was to put off its consideration until after the point at which it
would normally have come up.
Another form of action that indicated an attempt to delay consideration appeared on four scattered
occasions before 1967 when an attempt to call a nomination up on the same day it was reported or
submitted was prevented by objection. A more definite, though still only temporary, form of delay
was imposed on five nominations during this period (all after 1880), each of which was passed
over for consideration at least once, upon demand of a Senator, when reached in its normal order.
From 1968 on, the Call of the Calendar of nominations fell into disuse for the consideration of
Supreme Court nominations, and a different set of practices for initiating floor action on these
nominations has become standard. All but one of the 18 nominations that have reached the floor
since that time did so pursuant to a request for unanimous consent that the Senate proceed to
consider it. For nine nominations, this consent agreement provided for immediate consideration;
for the remaining eight, it provided, like the earlier special orders, for consideration to begin at
some future date. In addition, some of these consent agreements provided for the Senate not only
to take up the nomination, but to go into executive session for the purpose, and some also limited
debate or set a time certain for a final vote. Whether or not they included these additional
provisions, however, these agreements represent a routine proceeding for taking up the
nomination and fail to suggest any potential difficulties in bringing it to the floor. The only
nomination in this recent period to experience difficulty at the point of calling up has been that of
Fortas in 1968, on which a motion to proceed to consider was found necessary and could not be
brought to a vote.
Senate rules do not establish separate procedures for the consideration of nominations and of
legislation to the same extent that they do for calling up business of the two kinds. The most
evident differences between the two forms of proceedings may be that nominations, of course,
cannot be amended. Otherwise, most of the same procedural mechanisms used for legislative
business are also available on nominations.
The use of optional procedures of any kind during consideration was initially rare, occurring on
only five of the 31 nominations reaching the floor before 1835. Motions to postpone temporarily,
however, were used as early as 1795, motions to commit with instructions by 1811, and motions
to table by 1826. Sometimes, again as already noted, a motion to postpone or table was offered at
the point when the Senate was just proceeding to consider a nomination, so that they might in
these instances have been treated as part of the proceedings for calling up nominations. In order
to treat each motion in a consistent way, however, the present discussion views all of them as

having been offered in the course of consideration. Occasionally, as well, action with effect
similar to one of these motions also was proposed by resolution. For example, the Senate several
times entertained a resolution that it postpone or table a nomination until enactment of legislation
reorganizing the circuit courts (which could have the effect of eliminating the nominee’s
vacancy), or one that directed a committee to investigate a nominee further, but did not formally
recommit the nomination. Table 4 includes these proceedings in the count of corresponding
In most instances during this period, when motions to postpone, commit, or table were offered,
the Senate adopted them by voice vote. At that time, adoption of a motion to table evidently did
not have the effect of a final negative disposition, as it does today, but only of putting off action
for the time being. The normal effect of adopting any of these motions, accordingly, was only to
delay further action by taking the nomination off the floor temporarily. The only exception to this
pattern occurred in 1828, when adoption (by roll call) of a resolution postponing the Crittenden
nomination until after a circuit court reorganization effectively terminated consideration of the
During the decade between 1835 and 1845, by contrast with earlier years, only five of the 16
Supreme Court nominations that reached the floor were considered without the intervention of
optional procedures. The procedures used continued to include only motions to postpone,
commit, and table, but the consequences of their use became more varied. Some of these motions
continued to be adopted by voice vote, but others were either adopted or rejected on roll call
votes. Adoption by voice vote may most likely suggest that supporters of the nomination may
have been using the motion either to gain time or for routine purposes of agenda management;
rejection by roll call suggests that the motions may have been offered by opponents seeking to
bring about delays in consideration. Either of these results, however, normally permitted
consideration to continue.
Especially when one of these motions was adopted by roll call, on the other hand, it often had the
effect of terminating consideration before an up-or-down vote could occur. In 1835, the Senate
tabled a resolution to postpone the Taney nomination until a circuit court reorganization, then
adopted a motion to postpone it indefinitely. In 1844, the Senate tabled President Tyler’s
nominations of Walworth and King by roll call, and in the following year it did the same to their
renominations by voice vote. The motion to postpone indefinitely has the explicit purpose of
terminating consideration, but, under the practice of the time, a similar consequence followed
from adopting the motions to table only because the Senate did not choose to resume their
consideration. It appears highly likely that in taking these actions, the Senate understood that
leaving consideration unfinished was their proponents’ intent and would be their practical effect.
In the decades after 1845, political circumstances varied widely, but the overall incidence of
procedural complexity on Supreme Court nominations declined, although not to early levels. A
solid majority of the nominations reaching the floor between 1845 and 1890 (20 of 31)
experienced no optional procedural action at all after being called up. (This figure, however,
includes the five nominations confirmed during the Civil War, when any substantial opposition to
the administration was absent from the Senate.)

After 1845, the three motions already mentioned continued to be used on Supreme Court
nominations, except that, because initial committee referral had become routine, the motion to
recommit largely replaced the motion to commit. These three motions also continued to have a
similar range of consequences. In 1870, however, a resolution was offered to lay two Supreme
Court nominations on the table until Congress completed a circuit court reorganization, and this
proved to be the last occasion on which an attempt was made in the Senate to table such a
nomination. The Senate, accordingly, has never attempted to use this motion on Supreme Court
nominations during the era when it would have the effect of a final negative disposition.
The motions to postpone and recommit, on the other hand, continued to be used through 1890 in
ways similar to those appearing previously. Beginning in 1853, as well, the Senate also started to
use motions to adjourn with the effect or apparent intent of putting off consideration of a Supreme 41
Court nomination. On the Badger nomination in 1853, the motion was adopted by a roll call
vote. Thereafter, such a motion was offered on six other nominations through 1889. On one
occasion it was adopted by voice vote, but otherwise a roll call always rejected it. After 1890, this
form of optional procedure fell out of use, except for one occasion (on Hughes for Chief Justice
in 1930) when a roll call rejected a motion to recess.
For a brief period beginning in 1870, motions to reconsider a vote to confirm also appeared. The
first such motion (on Strong in 1870) was withdrawn after three days’ debate and the failure of a
motion to postpone it. The second (on Harlan in 1877) never reached a vote. The last (on Woods
in 1880) was tabled by roll call after a quorum failed on an initial roll call on the motion itself.
After this third unsuccessful attempt, the Senate abandoned use of this motion in this context as
Neither of the motions newly coming into use in this period was ever used with the effect of
terminating consideration. The three motions that had continued to appear since earlier times, on
the other hand, were still occasionally used with this effect. The Bradford nomination was tabled
in 1852 and received no further action, and the Badger nomination in the following year was
postponed until a date after Congress was to adjourn. In 1873, the Williams nomination became
the only one on which a recommittal ever terminated consideration.
On only one subsequent occasion (Fortas, 1968; see below) has the Senate ever again resorted to
optional procedural actions to terminate action on a Supreme Court nomination short of an up-or-
down vote. With this one exception, accordingly, such terminations came about only in the half
century from 1828 through 1873. This period included not only the nine nominations on which
floor action was terminated before a vote through optional procedures during consideration, but
also the two on which this effect followed from Senate action on a motion to proceed to 42
consider. As already suggested in the case of the tabled Tyler nominations, it appears likely that
in these instances, even when the procedures used did not, in themselves, definitively terminate
consideration, the Senate understood in using them that this would be their practical effect.

41 Routine adjournments and recesses by voice vote or unanimous consent, most of which occurred outside executive
session in any case, were not taken into account for this purpose.
42 It also included the single case in which consideration lapsed without a vote in the absence of any procedural action
(Read, 1845; see Table 1).

After 1890, the frequency of optional procedural action during consideration declined further;
from then through 1967, such action appeared on just 14 of the 50 nominations that reached the
floor. Additional shifts also occurred in the forms of procedural action used. These shifts
amounted principally to a substantial decline in the use of motions that required a vote of the
Senate, and an increasing resort instead to live quorum calls, which can be demanded by a single
Senator, and unanimous consent agreements, which require the absence of objection by any single
Senator. Although the votable motions could potentially be used in ways that would have the
effect of terminating consideration, such a result was not likely from either of the procedures
newly coming into use in this context.
Early in this period, the Senate continued to adopt motions to recommit and to postpone by voice
vote, and to reject them by roll call. After 1930, however, these motions became more unusual,
and the motion to adjourn ceased to be used at all in this context. A motion to recommit or
postpone has been offered on just four nominations since 1930, most recently in 1971 (on
Rehnquist for Associate Justice), and all have been rejected on roll calls. The motions to
reconsider and to adjourn, as noted above, had already become disused on these matters, the
former perhaps because the Senate now routinely tables the motion, immediately after every
successful action.
Beginning with the Stone nomination for Associate Justice in 1925, live quorum calls came to be
used with some regularity during consideration (although a single such call had already occurred
once previously, on the Woods nomination of 1880). At least 10 such calls each were demanded
on the Hughes and Parker nominations in 1930. This procedure can be used to incur a certain
amount of delay even if it succeeds in producing a quorum, although only once (in the
consideration of Parker) did such a call ever result in the actual failure of a quorum. After 1930,
live quorum calls occurred on seven more nominations, most recently in 1971, but no more than
three times on any single nomination.
The unanimous consent agreements that are to be taken into account in this connection include
only those that assured the ability of the Senate to reach a final vote on a nomination, usually by 43
setting either a time certain for the vote or an overall limit on the time for debate. Such an
agreement was first reached for Brewer (1889), but appeared on just three other nominations
between then and 1967. Three of these four agreements were reached either in advance of
consideration or on its first day, and accordingly appear likely to represent consensual
arrangements to facilitate consideration. The fourth agreement, by contrast (on Parker in 1930),
was not reached until the seventh day of consideration, and so appears more likely to represent a
response to attempts to delay or extend consideration.
From 1968 onward, however, consent agreements became the standard means of regulating
consideration of Supreme Court nominations, as they increasingly did for other major matters.
Such agreements appeared on 15 of the 19 nominations to reach the floor after that date, and six

43 Consent agreements providing that the Senate proceed to consider a nomination at a subsequent point were addressed
in the previous section, onCalling Up Nominations.” Agreements that involved both features are counted in both
groups and considered separately under both heads.

of the 15 were established only after the first day of consideration. Many of these agreements, on
the other hand, may have represented collegial arrangements rather than attempts to overcome
any difficulties in consideration, especially inasmuch as, on 10 of the 15 nominations in question,
the consent agreement was the only optional procedural action taken. Overall, indeed,
consideration of 14 of the 19 nominations reaching the floor since 1968 involved no optional
procedural actions other than the consent agreement.
On the remaining five of these 19 recent nominations, the only optional procedures used were to
postpone (once), to recommit (once), and for cloture. The motion for cloture, which allows a
super-majority to limit the time for consideration of a matter, started to be used on Supreme Court
nominations at about the same time as consent agreements became routine. As explained in the
section on “Historical Trends in Floor Consideration,” this motion did not become available for
use on nominations until 1949. It was not used on any nomination, however, until 1968, when the
Senate rejected cloture on a motion to proceed to consider the Fortas nomination for Chief Justice
(and thereafter abandoned action on the nomination). This action represented the only time since

1873 when the Senate terminated floor action on a Supreme Court nomination short of an up-or-

down vote. Subsequently, cloture was moved also on the two Rehnquist nominations, as shown in
the case study presented above. On the 1971 nomination for Associate Justice the motion failed,
but a consent agreement was subsequently reached that permitted the Senate to reach a vote on
confirmation. On the 1986 nomination for Chief Justice, the Senate invoked cloture, the first time
it had done so on a Supreme Court nomination. Cloture was invoked also on the fourth Supreme
Court nomination on which it was moved, that of Alito in 2006.
As was the case for forms of disposition and length of consideration, the significance of
procedural complexity is more difficult to ascertain than is its occurrence. The preceding
discussion shows that, on some occasions, optional procedures may have been used routinely,
with the apparent purpose of managing the flow of business, and with a potential effect only of
expediting action. On other occasions, optional procedures may have been used as means of
delaying consideration or even placing obstacles in the way of a final disposition. In cases when
the occurrence of optional procedural action resulted in consideration being terminated before a
final vote, for example, it might reasonably be conjectured that the procedural action in question
could have been undertaken with the intent of bringing about this result. It is equally reasonable
to suppose that similar actions, undertaken on other nominations, may at least sometimes have
reflected similar intentions, even if the results did not successfully fulfill those intentions.
No definitive conclusions, of course, might be drawn about the purpose of optional procedural
actions in any specific case in the absence of information about the intentions of Senators
undertaking them. Even to offer inferences about specific occasions on which such intentions
were present would require examination of the political and historical circumstances surrounding
each nomination, a task beyond both the scope and the purpose of this report. The preceding
discussion, nevertheless, permits some assessment about which optional procedures may have
afforded the possibility of delaying consideration or forestalling a final vote, and, accordingly,
which of them might, in principle, have been used in some instances for such a purpose.
As with the level of opposition manifested in the final vote and the length of floor action, it is
plausible to consider the occurrence of procedural actions, or procedural roll calls, as an
indication that contention or controversy may have been present, but it is insufficient to
demonstrate that substantial contentiousness actually was present. At most, it may be appropriate

to consider that the absence of optional procedural actions that could have been used for delay
presents an absence of indication of controversy.
That none of the three indicators examined in this part of the report may be taken as a definitive
demonstration of the presence or absence of controversy is substantiated by the observation that
these three criteria do not always identify the same nominations as possibly controversial. On the
other hand, substantial overlap does exist among the nominations picked out by each indicator.
This circumstance suggests that a more reliable and comprehensive measure of the level of
controversy on each nomination might be derived from a simultaneous consideration of all three
indicators together. Such an analysis, however, is beyond the scope of this report.

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

Year Nominee Final Vote Extent of Opposition Floor Days Procedural aNotes
1789 Robert H. Voice 1 n Declined to serve
1789 James Wilson Voice 1 n
1789 John Blair Voice 1 n
1790 James Iredell Voice 1 n
1791 Thomas Johnson Voice 1 n
1793-1 William Paterson No floor action;
1793-2 William Paterson Voice 1 n
1795 John Rutledge 10-14 Rejected 2 op
1796 William Cushing Voice 1 n Declined to serve
1796 Samuel Chase Voice 1 n
1796 Oliver Ellsworth 21-1 1 n
1798 Bushrod Voice 1 n
1799 Alfred Moore Voice 3 op
1800 John Jay Voice 1 n Declined to serve
1801 John Marshall Voice 1 n
1804 William Johnson Voice 1 n
1806 H. Brockholst Voice 1 n
1807 Thomas Todd Voice 1 n
1811 Levi Lincoln Voice 1 n Declined to serve
1811 Alexander 9-24 Rejected 4 op
1811 John Quincy Voice 1 n Declined to serve
1811 Joseph Story Voice 1 n
1811 Gabriel Duvall Voice 1 n
1823 Smith Thompson Voice 1 n
1826 Robert Trimble 27-5 2 opr
1828 John J. Unfinished 9 opr
1829 John McLean Voice 1 n
1830 Henry Baldwin 41-2 1 n
1835 James M. Wayne Voice 1 n
1835-1 Roger B. Taney Unfinished 3 opr
1835-2 Roger B. Taney 29-15 Opposition 3 opr

Year Nominee Final Vote Extent of Opposition Floor Days Procedural aNotes
1835 Philip P. Barbour 30-11 Opposition 1 opr
1837 William Smith 23-18 Opposition 2 op Declined to serve
1837 John Catron 28-15 Opposition 2 op
1837 John McKinley Voice 1 n
1841 Peter V. Daniel 22-5 1 opr
1844-1 John C. Spencer 21-26 Rejected 1 n
1844-1 Reuben H. Unfinished 1 opr Withdrawn
1844 Edward King Unfinished 1 opr
1844-2 John C. Spencer No floor action;
1844-2 Reuben H. Unfinished 1 op
1845 Reuben H. Unfinished 1 op Withdrawn
1845 Edward King Unfinished 1 op Withdrawn
1845 Samuel Nelson Voice 1 op
1845 John M. Read Unfinished 1 op
1845 George W. 20-29 Rejected 2 opr
1845 Levi Woodbury Voice 1 n
1846 Robert C. Grier Voice 1 n
1851 Benjamin R. Voice 1 n
1852 Edward A. Unfinished 1 op
1853 George E. Badger Unfinished 6 opr
1853 William C. Micou No floor action
1853 John A. Campbell Voice 1 n
1857 Nathan Clifford 26-23 Opposition 2 op
1861 Jeremiah S. Black Unfinished 3 opr
1862 Noah H. Swayne 38-1 1 n
1862 Samuel F. Miller Voice 1 n
1862 David Davis Voice 1 n
1863 Stephen J. Field Voice 1 n
1864 Salmon P. Chase Voice 1 n
1866 Henry Stanbery No floor action
1869 Ebenezer R. 24-33 Rejected 2 opr


Year Nominee Final Vote Extent of Opposition Floor Days Procedural aNotes
1869 Edwin M. Stanton 46-11 Opposition 1 n Did not serve
1870 William Strong Voice 3 opr
1870 Joseph P. Bradley 46-9 4 opr
1872 Ward Hunt Voice 1 n
1874 George H. Unfinished 2 op Withdrawn
1874 Caleb Cushing No floor action;
1874 Morrison R. Waite 63-0 1 op
1877 John M. Harlan Voice 1 op
1880 William B. 39-8 2 opr
1881-1 Stanley Matthews No floor action
1881-2 Stanley Matthews 24-23 Opposition 3 op
1881 Horace Gray 51-5 1 n
1882 Roscoe Conkling 39-12 Opposition 1 n Declined to serve
1882 Samuel Voice 1 n
1888 Lucius Q.C. 32-28 Opposition 1 n
1888 Melville W. Fuller 41-20 Opposition 1 n
1889 David J. Brewer 53-11 Opposition 2 opr
1890 Henry B. Brown Voice 1 n
1892 George Shiras, Jr. Voice 1 n
1893 Howell E. Voice 2 op
1893-1 William B. No floor action
1893-2 William B. 24-30 Rejected 2 op
1894 Wheller H. 32-41 Rejected 3 op
1894 Edward D. White Voice 1 n
1895 Rufus W. Voice 1 n
1898 Joseph McKenna Voice 2 op
1902 Oliver W. Voice 1 n
1903 William R. Day Voice 1 n
1906 William H. Voice 1 n

Year Nominee Final Vote Extent of Opposition Floor Days Procedural aNotes
1909 Horace Lurton Voice 1 n
1910 Charles E. Voice 1 n
1910 Edward D. White UC 1 n
1910 Willis Van Voice 1 n
1910 Joseph R. Lamar Voice 1 n
1912 Mahlon Pitney 50-26 Opposition 3 n
1914 James C. 44-6 2 n
1916 Louis D. Brandeis 47-22 Opposition 1 op
1916 John H. Clarke UC 1 n
1921 William H. Taft 60-4 1 n
1922 George Voice 1 n
1922-1 Pierce Butler No floor action
1922-2 Pierce Butler 61-8 1 opr
1923 Edward T. UC 1 n
1925 Harlan F. Stone 71-6 4 op
1930 Charles E. Hughes 52-26 Opposition 4 opr
1930 John J. Parker 39-41 Rejected 8 op
1930 Owen J. Roberts UC 1 n
1932 Benjamin N. UC 1 n
1937 Hugo L. Black 63-16 Opposition 1 opr
1938 Stanley F. Reed UC 1 n
1939 Felix Frankfurter Voice 1 n
1939 William O. 62-4 2 op
1940 Frank Murphy UC 1 n
1941 Harlan F. Stone UC 1 n
1941 James F. Byrnes UC 1 n
1941 Robert H. Voice 1 op
1943 Wiley B. Voice 1 n
1945 Harold H. Burton UC 1 n

Year Nominee Final Vote Extent of Opposition Floor Days Procedural aNotes
1946 Fred M. Vinson Voice 1 n
1949 Tom C. Clark 73-8 2 n
1949 Sherman Minton 48-16 Opposition 1 opr
1954 Earl Warren Voice 1 n see noteb
1954 John M. Harlan No floor action
1955 John M. Harlan 71-11 Opposition 2 op
1957 William J. Voice 2 op
Brennan, Jr.
1957 Charles E. Voice 1 n
1959 Potter Stewart 70-17 Opposition 1 op
1962 Byron R. White Voice 1 n
1962 Arthur J. Voice 1 n see notec
1965 Abe Fortas Voice 1 n
1967 Thurgood 69-11 Opposition 2 n
1968 Abe Fortas Unfinished 6 opr Withdrawn
1968 Homer No floor action;
Thornberry withdrawn
1969 Warren E. Burger 74-3 1 n
1970 Clement 45-55 Rejected 6 op
Haynsworth, Jr.
1970 G. Harrold 45-51 Rejected 14 opr
1970 Harry A. 94-0 2 n
1971 Lewis F. Powell, 89-1 3 n
1971 William H. 68-26 Opposition 5 opr
1975 John Paul Stevens 98-0 1 n
1981 Sandra Day 99-0 1 n
1986 William H. 65-33 Opposition 5 opr
1986 Antonin Scalia 98-0 1 n
1987 Robert H. Bork 42-58 Rejected 3 op
1988 Anthony M. 97-0 1 n
1990 David H. Souter 90-9 2 n

Year Nominee Final Vote Extent of Opposition Floor Days Procedural aNotes
1991 Clarence Thomas 52-48 Opposition 6 op
1993 Ruth Bader 96-3 3 n
1994 Stephen G. 87-9 1 n
2005-1 John G. Roberts No floor action;
2005-2 John G. Roberts 78-22 Opposition 4 n
2005 Harriet Miers No floor action;
2005 Samuel A. Alito 58-42 Opposition 5 opr
Source: Senate Executive Journal. For 21st century nominations, Legislative Information System (LIS) and
Congressional Record.
a. Includes only procedural actions having the potential for delaying consideration. For details, see Table 4
and accompanying text.
b. Recorded as unanimous.
c. One Senator asked to be recorded in opposition.
Years are the year the nomination was submitted; action occasionally extended into the following year.
Nomination for Chief Justice in italics.
Final vote: Voice = confirmed by voice vote.
Extent of Opposition: Blank = scattered or none apparent.
Opposition = confirmed with more 10 or more “nay” votes.
Optional procedural actions: n = none
op = optional procedures without roll calls
opr = optional procedures with roll calls.
Table A-2 provides information about the course of committee action on Supreme Court
nominations which, like that in Table A-1, may shed light on the extent and intensity of
opposition thereto. Also like Table A-1, this table identifies nominees by name and by year of
submission (which in some cases is not the year in which action was concluded), distinguishing
nominations for Chief Justice by italics.
Table A-2 addresses only committee action that occurred before initial floor consideration. If a
nomination was not referred to committee before initial floor consideration, the columns on
“Days from receipt to committee report (or other final action),” and on “”Form of reporting (or
other final committee action)” are left blank Similarly, the column on “Days of open committee

hearings” is left blank for cases in which no open committee hearings are known to have been
Finally, the column on “floor disposition” is left blank for nominations that were confirmed. For
nominations not confirmed, a summary indication of floor disposition appears in this column, but
greater detail appears in Table A-1, above.
The table provides the “Form of reporting (or other final committee action)” for each nomination
that was referred to committee. In cases in which the committee action took any form other than
the normal form of favorable action, the entry in this column is given in bold face. “Reported”
was the normal form of favorable committee action from 1835 to 1865; “reported favorably”
Table A-2. Selected Characteristics of Committee Action on Supreme Court
Days from Form of
receipt to Days of reporting
Year Nominee committee report (or open committee (or other final Floor Disposition
other final hearings committee action)
1789 John Jay
1789 John Rutledge
1789 William Cushing
1789 Robert H.
1789 James Wilson
1789 John Blair
1790 James Iredell
1791 Thomas Johnson
1793-1 William Paterson no floor action;
1793-2 William Paterson
1795 John Rutledge rejected
1796 William Cushing
1796 Samuel Chase
1796 Oliver Ellsworth
1798 Bushrod
1799 Alfred Moore
1800 John Jay
1801 John Marshall
1804 William Johnson

Days from Form of
receipt to Days of reporting
Year Nominee committee report (or open committee (or other final Floor Disposition
other final hearings committee action)
1806 H. Brockholst
1807 Thomas Todd
1811 Levi Lincoln
1811 Alexander see notea rejected
1811 John Quincy
1811 Joseph Story
1811 Gabriel Duvall
1823 Smith Thompson
1826 Robert Trimble
1828 John J. Crittenden 39 recommended not to act unfinished
1829 John McLean
1830 Henry Baldwin
1835 James M. Wayne 2 reported
1835-1 Roger B. Taney unfinished
1835-2 Roger B. Taney 8 reported
1835 Philip P. Barbour 8 reported
1837 William Smith 5 reported
1837 John Catron 5 reported
1837 John McKinley 6 reported
1841 Peter V. Daniel
1844-1 John C. Spencer 21 reported rejected
1844-1 Reuben H. 93 reported unfinished;
Walworth withdrawn
1844 Edward King 9 reported unfinished
1844-2 John C. Spencer no floor action;
1844-2 Reuben H. unfinished
1845 Reuben H. 42 reported unfinished;
Walworth withdrawn
1845 Edward King 42 reported unfinished;
1845 Samuel Nelson 2 reported

Days from Form of
receipt to Days of reporting
Year Nominee committee report (or open committee (or other final Floor Disposition
other final hearings committee action)
1845 John M. Read 6 reported unfinished
1845 George W. 28 reported rejected
1845 Levi Woodbury 11 reported
1846 Robert C. Grier 1 reported
1851 Benjamin R. 11 reported
1852 Edward A. 9 reported unfinished
1853 George E. unfinished
1853 William C. 1 discharged no floor action
1853 John A. 1 reported
1857 Nathan Clifford 28 reported
1861 Jeremiah S. Black unfinished
1862 Noah H. Swayne 2 reported
1862 Samuel F. Miller
1862 David Davis 2 reported
1863 Stephen J. Field 2 reported
1864 Salmon P. Chase
1866 Henry Stanbery see notebno action no floor action
1869 Ebenezer R. 7 adversely
1869 Edwin M.
1870 William Strong 6 favorably
1870 Joseph P. Bradley 6 favorably
1872 Ward Hunt 5 favorably
1874 George H. 9 see notec favorably unfinished;
Williams withdrawn
1874 Caleb Cushing 0 favorably no floor action;
1874 Morrison R. Waite 1 favorably
1877 John M. Harlan 40 favorably
1880 William B. 5 favorably


Days from Form of
receipt to Days of reporting
Year Nominee committee report (or open committee (or other final Floor Disposition
other final hearings committee action)
1881-1 Stanley 19d no action no floor action
1881-2 Stanley 53 adversely
1881 Horace Gray 1 favorably
1882 Roscoe Conkling 6 favorably
1882 Samuel 9 favorably
1888 Lucius Q.C. 29 adversely
1888 Melville W. Fuller 61 without recommendation
1889 David J. Brewer 12 favorably
1890 Henry B. Brown 6 favorably
1892 George Shiras, Jr. 6 without recommendation
1893 Howell E. 11 favorably
1893-1 William B. see noteb no action no floor action
1893-2 William B. 33 adversely rejected
1894 Wheller H. Peckham 21 without recommendation rejected
1894 Edward D.
1895 Rufus W. 6 favorably
1898 Joseph McKenna 28 favorably
1902 Oliver W. 2 favorably
1903 William R. Day 4 favorably
1906 William H. 7 favorably
1909 Horace Lurton 3 favorably
1910 Charles E. 7 favorably
1910 Edward D. White
1910 Willis Van 3 favorably


Days from Form of
receipt to Days of reporting
Year Nominee committee report (or open committee (or other final Floor Disposition
other final hearings committee action)
1910 Joseph R. Lamar 3 favorably
1912 Mahlon Pitney 14 favorably
1914 James C. 5 favorably
1916 Louis D. 117 19 favorably
1916 John H. Clarke 10 favorably
1921 William H. Taft
1922 George
1922-1 Pierce Butler 5 favorably no floor action
1922-2 Pierce Butler 13 favorably
1923 Edward T. 5 favorably
1925 Harlan F. Stone 28 see notee favorably
1930 Charles E. Hughes 7 favorably
1930 John J. Parker 27 1 adversely rejected
1930 Owen J. Roberts 10 favorably
1932 Benjamin N. 8 favorably
1937 Hugo L. Black 4 favorably
1938 Stanley F. Reed 9 1 favorably
1939 Felix Frankfurter 11 4 favorably
1939 William O. 7 1 favorably
1940 Frank Murphy 11 favorably
1941 Harlan F. Stone 11 1 favorably
1941 James F. Byrnes
1941 Robert H. 18 1 favorably
1943 Wiley B. 21 1 favorably
1945 Harold H. 1 favorably
1946 Fred M. Vinson 13 1 favorably
1949 Tom C. Clark 10 3 favorably
1949 Sherman Minton 18 1 favorably

Days from Form of
receipt to Days of reporting
Year Nominee committee report (or open committee (or other final Floor Disposition
other final hearings committee action)
1954 Earl Warren 44 2 favorably
1954 John M. Harlan see noteb no action no floor action
1955 John M. Harlan 59 2 favorably
1957 William J. 49 2 favorably
Brennan, Jr.
1957 Charles E. 16 1 favorably
1959 Potter Stewart 93 2 favorably
1962 Byron R. White 8 1 favorably
1962 Arthur J. 25 2 favorably
1965 Abe Fortas 13 1 favorably
1967 Thurgood 51 5 favorably
1968 Abe Fortas 83 11 favorably unfinished;
1968 Homer see noteb 11 no action no floor action;
Thornberry withdrawn
1969 Warren E. Burger 11 1 favorably
1970 Clement 36 8 favorably rejected
Haynsworth, Jr.
1970 G. Harrold 28 5 favorably rejected
1970 Harry A. 21 1 favorably
1971 Lewis F. Powell, 32 5 favorably
1971 William H. 32 5 favorably
1975 John Paul 10 3 favorably
1981 Sandra Day 27 3 favorably
1986 William H. 55 4 favorably
1986 Antonin Scalia 51 2 favorably
1987 Robert H. Bork 91 12 unfavorably rejected
1988 Anthony M. 58 3 favorably


Days from Form of
receipt to Days of reporting
Year Nominee committee report (or open committee (or other final Floor Disposition
other final hearings committee action)
1990 David H. Souter 64 5 favorably
1991 Clarence Thomas 81 8f without recommendation
1993 Ruth Bader 37 4 favorably
1994 Stephen G. 63 4
2005-1 John G. Roberts see noteb no action no floor action;
2005-2 John G. Roberts 16 4 favorably
2005 Harriet Miers see noteb no action no floor action;
2005 Samuel A. Alito 75 5 favorably
Source: CRS Report RL33225, Supreme Court Nominations, 1789-2005: Actions by the Senate, the Judiciary st
Committee, and the President, by Denis Steven Rutkus and Maureen Bearden. Also, for 21 century nominations,
Legislative Information System (LIS) and Congressional Record.
a. The Senate referred the Wolcott nomination to a special committee only subsequent to the start of floor
b. The nomination was referred, but the committee took no final action.
c. The committee held two days of closed hearings on the Williams nomination after it was recommitted
subsequent to the start of floor consideration.
d. The committee took no action to report the first Matthews nomination, but at the end of the period stated
voted to postpone it.
e. The committee held one day of hearings on the Stone nomination after it was recommitted subsequent to
the start of floor consideration.
f. The committee held three additional days of hearings on the Thomas nomination subsequent to the start of
floor consideration, although the nomination was not formally recommitted.
Years are the year the nomination was submitted; action occasionally extended into the following year.
Nominations for Chief Justice in italics.
Days from receipt to committee report (or other final action):
Column records only initial referrals before floor consideration.
Blanks indicate nomination was not referred before floor consideration.
Days of open committee hearings:
Blanks indicate that no open committee hearings are known to have been held.
Form of reporting (or other final committee action):
Blanks indicate that no initial committee referral was made.

Bold face indicates instances in which committee action took a form other than the normal form of
favorable committee action. “Reported” was the normal form of favorable committee action from 1835 to 1865;
“reported favorably” thereafter.
Floor disposition:
Blanks indicate that the nomination was confirmed.
Richard S. Beth Betsy Palmer
Specialist on the Congress and Legislative Process Analyst on the Congress and Legislative Process, 7-8667, 7-0381