Supreme Court Nominations: Senate Floor Procedure and Practice, 1789-2010

Richard S. Beth
Specialist on Congress and the Legislative Process

Betsy Palmer
Analyst on Congress and the Legislative Process

From 1789 through 2009, the President submitted to the Senate 159 nominations for positions on the Supreme Court. Of these nominations, 147 received action on the floor of the Senate, and 123 were confirmed. On May 10, 2010, the Senate received the nomination of Solicitor General Elana Kagan to be an Associate Justice of the Supreme Court. The data presented in this report do not include this nomination. 

The forms of proceeding by which the Senate considered the 147 nominees to reach the floor break down relatively naturally into five patterns over time. First, from 1789 through about 1834, the Senate considered the nominations on the floor a day after they were received from the President. The second period (1835-1867) was distinguished by the beginning of referral of nominations to the Committee on the Judiciary. The third period (1868-1921) was marked by rule changes that brought about more formalization of the process. During the fourth period (1922- 1967), the Senate began using the Calendar Call to manage the consideration of Supreme Court nominations, and the final time period, 1968 to the present, is marked by routine roll call votes on confirmation and the use of unanimous consent agreements to structure debate. 

Of the 123 votes by which the Senate confirmed nominees, 73 took place by voice vote and 50 by roll call, but on only 25 of the roll calls did 10 or more Senators vote against. Of the 36 nominations not confirmed, the Senate rejected 11 outright, and 12 others never received floor consideration (some because of opposition; others were withdrawn). The remaining 13 nominations reached the floor but never received a final vote, usually because some procedural action terminated consideration before a vote could occur (and the President later withdrew some of these). Including those that received incomplete consideration, were rejected, or drew more than 10 negative votes, just 49 of the 159 total nominations experienced opposition that might be called "significant." 

Of the 147 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 147 nominations, optional procedural actions that could have been used to delay or block a confirmation vote occurred on 58, of which 26 involved procedural roll calls. Among a wide variety of procedural actions used, the more common ones have included motions to postpone, recommit, and table; motions to proceed to consider or other complications in calling up; live quorum calls, and unanimous consent agreements. 

Neither extended consideration, the presence of extra procedural actions, nor the appearance of "significant" opposition affords definitive evidence, by itself, that proceedings were contentious. For example, some nominations considered for one day still faced procedural roll calls, some considered for three days or more faced no optional procedures, and some opposed by more than 10 Senators were still considered only briefly and without optional procedures. Of the 147 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.


Date of Report: May 17, 2010
Number of Pages: 46
Order Number: RL33247
Price: $29.95

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