The Senate's power of advice and consent is perhaps most consequential in the case of presidential appointments to the federal courts, where judges are granted life tenure under the Constitution and can be terminated only through the time-consuming congressional impeachment process.
For much of its history, the Senate generally deferred to the president's choices to sit on the Supreme Court, typically confirming the appointments within days of nomination and often using simple voice votes.
Nevertheless, from the beginning, senators demonstrated that they would reject a nominee if his political views did not align with theirs. In 1795, for example, chief justice nominee John Rutledge angered Senate Federalists when he publicly criticized the Senate's approval of the unpopular Jay Treaty. Rutledge became the first judicial nominee to be formally rejected. In 1811 James Madison nominated customs collector Alexander Wolcott to be an associate justice, but Wolcott was unpopular in his native New England due to his enforcement of the despised Embargo Act of 1807. He was rejected by the Senate by a vote of 9 to 24. Over the course of the 19th century, the Senate rejected nearly a third of all Supreme Court nominees.
Although the Senate is more likely to reject a nominee when the party of the president differs from that of the Senate majority, intraparty disputes have also led the Senate to withhold approval from nominees to the Court. President John Tyler's falling out with the Whig Party in 1844 led the Senate Whig majority to reject or refuse to act on four of his nominations to the Supreme Court. Senate Republicans who feuded with President Ulysses S. Grant over a host of appointments in the 1860s and 1870s rejected one of his Supreme Court nominees and forced the withdrawal of two others.
Before the 1860s, the Senate considered most nominations without referring them to a committee for review or investigation, although the Judiciary Committee did consider some nominees as early as the 1830s. In 1868 the Senate adopted rules to provide for more routine referral of nominations to "appropriate committees," but investigations of judicial nominees typically took place only in cases where the committee received credible allegations of wrongdoing on the part of a nominee. For example, in 1873 the committee investigated allegations of financial misconduct against Attorney General George H. Williams, who had been nominated to be chief justice by President Grant. After an investigation, the committee informed the president that Williams would likely not be confirmed and Williams asked that his name be withdrawn.
There were far fewer contests over lower court nominees during the 19th and early 20th centuries, owing both to the large number of appointments and to the tradition known as senatorial courtesy, in which presidents consulted with senators who represented the state of a potential nominee. Beginning in 1917, the Judiciary Committee instituted the "blue slip" process. The committee asked home-state senators to register their objection or approval of a nominee on a blue form. The process has changed over the years, with different committee chairs giving varied weight to a negative or non-returned blue slip, but the system has endured, providing home-state senators the opportunity to be heard by the Judiciary Committee.
By the early 20th century, as the Supreme Court more frequently exercised its power to declare state and federal laws unconstitutional, fights over Supreme Court nominations became more heated, drew more public attention, and mobilized organized interest groups. Consequently, the Judiciary Committee became much more integral to the nomination process. Woodrow Wilson's 1916 nomination of Louis D. Brandeis, an outspoken advocate for progressive causes and the nation's first Jewish nominee to the Court, sparked controversy and led the Judiciary Committee to hold lengthy public hearings. Brandeis did not appear in person, but the committee heard testimony from 46 witnesses over the course of three months.
In 1925 the Senate for the first time summoned a Supreme Court nominee to testify before the Judiciary Committee in a closed hearing. When President Calvin Coolidge nominated his attorney general, Harlan Fiske Stone, senators raised questions about Stone's recent investigation of Senator Burton K. Wheeler, charging that it was politically motivated. Stone appeared in person to defend his investigation and convinced a majority of committee members to report his nomination with a favorable recommendation. The Senate then took another notable step by voting to debate the nomination on the floor in open session. Up to that point all nominations were debated behind closed doors and kept secret unless the Senate voted afterward to make the record of deliberations public.
When President Herbert Hoover nominated Fourth Circuit Chief Judge John J. Parker to the Supreme Court in 1930, a subcommittee of the Judiciary Committee allowed representatives of the American Federation of Labor and the National Association for the Advancement of Colored People to lodge objections to the nomination in public hearings. The groups cited Parker's statements against black voting rights during his 1920 run for governor of North Carolina and his anti-labor decisions handed down while sitting on the U.S. Court of Appeals for the Fourth Circuit. A coalition of Democrats and progressive Republicans on the Judiciary Committee voted not to invite Parker to testify and reported the nomination adversely. The full Senate rejected Parker by a two-vote margin, making him the first nominee rejected in the 20th century.
In 1939 Felix Frankfurter became the first nominee to appear before the Judiciary Committee to answer questions in a public hearing. Starting with the 1955 nomination of John Marshall Harlan, the Judiciary Committee has routinely held open hearings on all Supreme Court and lower court nominees.
By the end of the 1960s, partisan balance on the Supreme Court became one of the most contentious political issues facing the country and led to an era of heightened scrutiny of Court nominees. Of the 24 Supreme Court nominations between John Parker's rejection in 1930 and 1968, 17 were confirmed unanimously and none were withdrawn or rejected by the Senate. Conversely, between 1968 and 1972, four out of 10 Supreme Court nominations were either rejected by the Senate or withdrawn by the president.
The Senate rejected two of President Richard Nixon's nominees—appeals court judges Clement F. Haynsworth, Jr., and G. Harrold Carswell. Both faced accusations of bias by labor and civil rights organizations. Two of Nixon's subsequent nominees were confirmed with only a single vote in opposition, but Democrats on the Judiciary Committee closely scrutinized his next nominee, William Rehnquist, and his record on civil liberties during his time at the Department of Justice. Rehnquist faced tough questioning by the Judiciary Committee again in 1986 when President Ronald Reagan nominated him to be chief justice.
Over the course of the 1980s and 1990s, the Senate confirmed most Supreme Court nominees with bipartisan majorities, but the contentious televised hearings of outspoken law professor Robert Bork in 1987 and appeals court judge Clarence Thomas in 1991 left bitter feelings behind in the Senate. Bork received an adverse report from the Judiciary Committee and was rejected by the full Senate, while Thomas, embroiled in accusations of sexual harassment, overcame the Judiciary Committee's decision to report his nomination without a recommendation and was confirmed by a narrow-margin vote of the full Senate.
The increasing ideological polarization of the two major political parties in the 21st century raised the stakes for judicial nominations in the Senate, and not just for nominees to the Supreme Court. The pace of confirmation of judges slowed, and lower court nominations for the first time were subjected to filibusters by the minority party, which required a three-fifths majority, or 60 votes, to invoke cloture to end debate. As more and more judicial nominees were left unconfirmed at the end of each session, party leaders threatened to establish new precedents to allow for nominations to go forward by simple majority vote.
In 2013 Senate Democrats used their majority power to trigger the so-called nuclear option, a procedural move that reduced the threshold for ending debate on lower court judicial nominees to a simple majority. After Republicans regained the majority in 2015, the Judiciary Committee took no action to consider President Barack Obama's March 2016 nomination of Merrick Garland to the Supreme Court. In January 2017, President Donald Trump nominated Neil Gorsuch to fill the vacancy, and Senate Republicans deployed the nuclear option to lower the cloture threshold for Supreme Court nominees to a simple majority, leading to confirmation by slim margins of Gorsuch and subsequent nominee Brett Kavanaugh.
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