The Judicial Branch

The Role of the Supreme Court, the Nomination

Process,
and Looking Ahead
 U.S. Constitution
Article II, Section 2,
paragraph 2
. . . he shall nominate, and by and with the
Advice and Consent of the Senate, shall
appoint . . . Judges of the supreme Court . . .
 Senate Judiciary Committee Voting on Supreme Court nominees 1969-2019

UNANIMOUS or NEAR UNANIMOUS: Warren Burger (1969)(voice); Harry Blackmun (1970)(17-

0); Lewis Powell (1971)(16-0); John Paul Stevens (1975)(voice); Sandra Day O’Connor (1981)(17-0);
Antonin Scalia (1986)(18-0); Anthony Kennedy (1988)(14-0); Ruth Bader Ginsburg (1993)(18-0);
Stephen Breyer (1994)(18-0). David Souter (1990)(13-1)

SOME OPPOSITION: Clement Haynsworth (1969)(10-7); G. Harrold Carswell (1969)(13-4);

William H. Rehnquist (1971)(12-4); William H. Rehnquist as Chief Justice (1986)(13-5); John
Roberts (2005)(13-5)

PARTY-LINE or NEAR PARTY-LINE OPPOSITION: Samuel Alito (2006)(10-8); Sonia

Sotomayor (2009)(13-6); Elena Kagan (2010)(13-6); Neil Gorsuch (2017)(11-9); Brett Kavanaugh
(2018)(11-10)

REPORTED UNFAVORABLY OR NO RECOMMENDATION: Robert Bork (1987)(9-5 for

negative report); Clarence Thomas (1991)(13-1 to report with no recommendation)
 Full Senate Voting on Supreme Court Nominees 1969-2019
SMALL
UNANIMOUS OPPOSITION SOME OPPOSITION PARTY OPPOSITION DEFEATED

Harry Blackmun Warren Burger (1969) William Rehnquist William Rehnquist Clement Haynsworth
(1970)(94-0) (74-3) (1971)(68-26) (1986)(65-33) (1969)(45-55)

John Paul Stevens Lewis Powell John Roberts (2005) Clarence Thomas G. Harrold Carswell
(1976)(98-0) (1971)(89-1) (78-22) (1991)(52-48) (1969)(45-51)

Sandra Day O'Connor David Souter Samuel Alito

(1981)(99-0) (1990)(90-9) (2006)(58-42) Robert Bork (1987)(42-58)

Anonin Scalia Ruth Bader Ginsburg Sonia Sotomayor

(1986)(98-0) (1993)(96-3) (2009)(68-31)

Anthony Kennedy Stephen Breyer Elena Kagan (2010)

(1988)(97-0) (1994)(87-9) (63-37)

Neil Gorsuch
(2017)(54-45)

Brett Kavanaugh
(2018)(50-48)

Adapted from Congressional Research Service

 Days from Nomination to Final Vote

Source: Congressional Research Service

***Kavanaugh’s nomination took 88 days from 7/9/18 to 10/6/18***

Interesting Facts

-- Kavanaugh is the 114th Justice

-- Since 1968 when Richard Nixon was elected, Republican Presidents have named 14 Justices, including
Kavanaugh; Democrats only 4.

-- Kavanaugh makes a first-time majority of Justices who were Supreme Court law clerks (Stephen
Breyer; John Roberts; Elena Kagan; Neil Gorsuch; Brett Kavanaugh)

-- The Senate voted to reject 4 Supreme Court nominees in the 20th century, 7 in the 19th century. Others
declined the nomination or had their nominations withdrawn or postponed. The first rejection by the
Senate was in 1811.

-- President Eisenhower made the last recess appointments to the Supreme Court – Warren, Brennan,
Stewart, all 3 later confirmed

-- Many nominees were confirmed by voice vote, but since 1969 there has been a roll call on final vote
on all Supreme Court nominees
Source: SCOTUSblog and Empirical Scotus
Source: SCOTUSblog
 Highlight of Voting and Opinion Writing by Justices

-- Clarence Thomas wrote the most total opinions last Term with 28 (8
maj., 14 concur, 6 dis)
-- Kagan and Roberts wrote the fewest opinions (12 each – Kagan 8-1-3;
Roberts 7- 2-3
-- Gorsuch (11), Breyer (10) and Sotomayor (9) wrote the most dissents;
Kagan, Kavanaugh and Roberts the fewest (3)

-- Highest level of agreement was Ginsburg, Sotomayor at 93%

-- Second was Roberts, Kavanaugh at 92%
-- Kavanaugh and Gorsuch agreed in 70%
-- Lowest agreement was Thomas with Ginsburg, Sotomayor 50%

-- In 5-4 decisions (21), Gorsuch was in majority most, 62%; Kavanaugh

second at 58%; Roberts, Thomas, Ginsburg, Breyer at 57%.
-- Gorsuch was in 5-4 majority 7 times when it was all conservatives and
4 times when he joined the 4 liberals
-- Roberts was in 5-4 majority 7 times when it was all conservatives and
3 times when he joined the liberals
 18-280 New York State Rifle & Pistol Assn. v. City of New York

**U.S. Senate politics spills over to the Supreme Court**

New York City ordinance barred licensed gun owners from transporting
their guns outside their homes, except a small number of shooting ranges

Lower courts upheld ordinance; Supreme Court granted certiorari on Jan.

22; case would be set for argument this fall

In June, New York City amended the regulation to allow guns to be

transported outside the city, and New York state amended state law so
that regs like the one New York City had could not be adopted in the state.

New York City then asked the Supreme Court to dismiss the case as moot.
Amidst a flood of friend-of-the-court (amicus curiae) briefs on both sides, Sen.
Sheldon Whitehouse (D-R.I.) filed a brief joined by Mazie Hirono (Hawaii), Richard
Blumenthal (Connecticut), Richard Durbin (Illinois) and Kirsten Gillibrand (New York).

Whitehouse argued that failure to dismiss the case as moot would show that the
Court’s majority was pursuing a political agenda of expanding 2nd Amendment rights.
The extraordinary Whitehouse brief warned, “The Supreme Court is not well.
And the people know it. Perhaps the Court can heal itself before the public
demands it be “restructured in order to reduce the influence of politics.”

In response, Sen. Mitch McConnell, the Republican Senate leader from Kentucky,
organized a letter signed by 52 other Republican senators, sent to the clerk of the
Supreme Court. The equally extraordinary letter says the Democrats are threatening
the independence of the judiciary. The Court “must not be cowed by the threats of
opportunistic politicians.” The letter promised, “While we remain members of this
Body, the Democrats’ threat to ‘restructure’ the Court is an empty one.”

The Court has not acted on the mootness request and has listed it for discussion
when the Justices meet in early October.