Constitution Daily

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Presidents vs. opposing Senates in Supreme Court nominations

February 16, 2016 by Scott Bomboy


President Obama has vowed to offer a Supreme Court nominee to succeed the late Antonin Scalia. But historically how difficult is that when the President and Senate majority are from different parties?

Robert Bork's nomination drew attention to the process

The process provided by the Constitution allows the President to nominate a Supreme Court Justice, with just the Senate (and not the House) empowered to approve the nomination by a simple majority vote. (The minority in the Senate also has the right to push for a filibuster to prevent a nomination from reaching the Senate floor, under the Senate's current rules.)

But when the President belongs to one political party and the Senate is controlled by another, the process is far from simple.

In recent years, Anthony Kennedy and David Souter were nominated by Republican Presidents and confirmed by a Democrat-controlled Senate. But to find a Supreme Court nominee from a Democrat President, approved by a Republican-controlled Senate, you need to go back to 1895.

The last Supreme Court nominee to come from a President whose party didn’t control the Senate was Clarence Thomas in 1991, who was nominated by President George H.W. Bush. The Democrats had 55 seats in the Senate, compared with the Republicans’ 45 seats, and it took 11 Democrats swinging their votes to Thomas for his successful nomination.

While party politics were in play for the Thomas nomination, Souter, Bush’s other Supreme Court nominee, had 90 yes-votes for his confirmation in 1990 by a Democratic-controlled Senate. In the last years of the Reagan administration, Robert Bork was rejected and Kennedy was overwhelmingly accepted by a Senate also controlled by Democrats.

Since World War II, there have been 38 official nominees for the Supreme Court. Eight of those nominations were withdrawn, not voted on or rejected by the Senate.

Of the 30 successful confirmations since 1945, 13 of the votes, or about 43 percent, came when the President’s party didn’t control the Senate. This was especially true when the Democrats ran the Senate for long periods during the 1960s and 1970s.

In fact, all 13 of the Supreme Court nominations since 1945 that were eventually approved by an opposing party in the Senate were made by Republican Presidents. Familiar names such as Earl Warren, William Brennan and Potter Stewart were Eisenhower nominees approved by a Democrat-controlled Senate.

When President Eisenhower nominated Warren as Chief Justice in January 1954, the Democrats briefly controlled the Senate by one vote, but Warren’s nomination was easily approved in a voice vote. Eisenhower nominees like Stewart and John Harlan II also passed easily, getting at least 70 yes votes from the Democratic-controlled Senate.

But the past three Supreme Court nominees to be rejected in a Senate vote were also candidates proposed by a Republican President to a Democrat-majority Senate. Richard Nixon saw two nominees, Clement Haynsworth and Harold Carswell, get just 45 yes votes in the Senate (the GOP had 44 Senators at the time).

The well-publicized nomination of Bork to the Supreme Court by President Reagan in 1987 saw Bork get just 42 votes in the Senate, when the Republicans had just 45 seats.

Not surprisingly, in every instance since 1945 when the same party controlled the White House and the Senate, that nominee was approved. (There were two nominees in the Lyndon Johnson administration who didn’t make it to the voting stage in the Senate, partially due to a Republican filibuster.)

So what has happened when a Democrat in the White House asked a Republican-controlled Senate to approve a Supreme Court nominee? That is a rarity, because Democratic presidents such as Woodrow Wilson, Franklin Roosevelt, John Kennedy, Lyndon Johnson and Jimmy Carter mostly dealt with a Senate controlled by their own party.

You have to go back to December 1895, when a Senate with a plurality of Republicans approved President Grover Cleveland’s nomination of Rufus Peckham to the Supreme Court in a voice vote. At that time, the Republicans had 44 Senate seats and the Democrats had 40 seats, with 6 other Senators belonging to other parties. (The Republican-controlled Senate during Cleveland’s first term in 1888 also approved two other nominees from the Democratic president: Melville Fuller and Lucius Lamar.)

In recent years, though, Presidents have made it a point to put up Supreme Court nominees when their party controlled the votes in the Senate. Since the Thomas nomination in 1991, the past six Supreme Court Justices won confirmation when the President’s party also controlled the Senate.

President Bill Clinton only had a Democratic-controlled Senate for his first two years in office, but he was able to get Ruth Bader Ginsburg and Stephen Breyer confirmed in 1993 and 1994. President George W. Bush won his nomination battles for John Roberts and Samuel Alito, while President Barack Obama saw successful votes for Sonia Sotomayor and Elena Kagan.


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