With the recent announcement by Associate Justice David Souter that he intends to retire from the Supreme Court this year, all eyes are on President Barack Obama to see who he will send up to the U.S. Senate for confirmation hearings in the coming weeks or months.

Obama, of course, has the advantage of having the Democratic Party in control of the U.S. Senate. Of the 54 Supreme Court justices who have been confirmed since 1900, 21 have been so confirmed with Democrats controlling both the presidency and the Senate – the last two of which were current justices Stephen Breyer and Ruth Bader Ginsberg.

Another 20 Justices have been confirmed under unified Republican party rule of the White House and Senate – the last two of which were Samuel Alito and Chief Justice John Roberts.

An additional 13 Justices since the beginning of the 20th Century have been confirmed under split party control, with a Republican president and a Democratic-led Senate – the most recent of which were Clarence Thomas, Souter, and Anthony Kennedy.

No justices have been confirmed during the past 100+ years with nominations from a Democratic president to a Republican-controlled Senate.

While there are some faint rumblings that Republicans may try to scrape together a filibuster of an Obama pick that is seen as too ‘radical,’ history has shown presidential nominees tend to sail through the Senate with a large percentage of votes to confirm.

Of course, this presumes Obama’s eventual nominee will make it to a roll call vote – a generally safe assumption, but not a guarantee.

Since 1900, six nominees have failed to make it all the way to a successful confirmation passage through the Senate. Four were rejected by the Senate and two were withdrawn from nomination. Two of these failed nominees, John J. Parker (1930) and Harriet Miers (2005), were rejected and withdrawn respectively under nominations from Republican presidents heading before a GOP-led Senate. (Another nominee, Homer Thornberry, was withdrawn in 1968 after President Nixon’s initial choice for Chief Justice, Associate Justice Abe Fortas, was withdrawn for that position. Fortas thus remained on the Court as an Associate Justice, and Thornberry’s nomination was withdrawn).

History has actually shown that divided partisan control between the presidency and the Senate has yielded the largest percentage of confirmation votes for Supreme Court nominees – with such nominees receiving 87.5 percent ‘yea’ votes since 1900.

Divided power, of course, may prompt presidents to nominate more moderate candidates than presidents presiding over a Senate controlled by his own party, as is the current scenario with President Obama.

Still, even when the president’s own party controls the Senate and the temptation to nominate a less moderate nominee is greater, a rather low percentage of Senators end up casting ‘nay’ votes against the nominee – just 13.9 percent under scenarios of unified Democratic power, and 18.7 percent under scenarios with unified Republican power.

Senate Roll Call Votes for Supreme Court Nominees, 1900-2006

President
Senate
% Yea
% Nay
% President’s Party in Senate
Republican
Republican
81.3
18.7
55.6
Democrat
Democrat
86.1
13.9
61.3
Republican
Democrat
87.5
12.5
43.0
Democrat
Republican
—
—
—

Note: Excludes nominees confirmed via voice vote.

There have been several additional nominees, however, who have sailed through the Senate without a roll call vote – ascending to the Court on simple voice votes. In fact, since 1900, 27 of the 54 Justices were confirmed by this method – although none since 1965.

When Republicans have controlled the presidency and the Senate, 12 out of 20 nominees have been confirmed via voice votes. Republicans have held 61.8 percent of Senate seats during these instances (the GOP held an average of just 55.6 percent of Senate seats when the confirmation process involved roll call votes).

When Democrats have controlled both the presidency and the Senate, 12 out of 21 nominees have become Supreme Court Justices without the taking of a roll call vote. Democrats have held 66.1 percent of Senate seats under such circumstances (again, higher than than the 61.3 percent of seats held when roll call votes were taken).

However, under divided power, with a Republican president and a Democratic-led Senate, just 3 out of 13 nominees have become Justices through a voice vote – all during the Eisenhower years when Republicans were just shy of holding 50 percent of the Senate seats in the country.

Recent years, however, have shown the confirmation process to be much more partisan – with Democrats in particular proving to be a much bigger thorn in the side of Republican presidents trying to get their nominees through. The last three Republican presidential nominees – Alito, Roberts, and Thomas – have won ‘yea’ votes from only 62.7 percent of U.S. Senators, with almost all of the ‘nay’ votes being cast by Democrats. (These nominees come on the heels of two failed Republican nominations by President Reagan in 1987 – one rejected (Robert Bork), and one withdrawn (Douglas Ginsburg)).

However, the last two Democratic presidential nominees to the Supreme Court – Breyer and Ruth Bader Ginsburg – were confirmed by 90.6 percent and 97.0 percent of the Senate respectively.

Will there be payback by the Republicans in 2009? How much pressure will be exerted by interest groups and the national Republican Party on GOP Senators to push back against Barack Obama’s forthcoming pick?

In light of the nearly unified opposition exercised by Republican Senators to President Obama’s federal stimulus legislation a few months ago, there are signs that any less than a moderate selection by Obama could yield a significant number of ‘nay’ votes from the GOP this year.

Confirmed Supreme Court Nominees by Vote and Party Split in U.S. Senate, 1900-2009

Justice
President
Conf.
Vote
Dem
Rep
Third
???
Obama
—
—
57
40
2
Samuel Alito
Bush 43
01/06
58-42
44
55
1
John Roberts
Bush 43
09/05
78-22
44
55
1
Stephen Breyer
Clinton
07/94
87-9
56
44
0
Ruth Bader Ginsburg
Clinton
08/93
96-3
57
43
0
Clarence Thomas
Bush 41
10/91
52-48
56
44
0
David Souter
Bush 41
10/90
90-9
55
45
0
Anthony Kennedy
Reagan
02/88
97-0
55
45
0
Antonin Scalia
Reagan
09/86
98-0
47
53
0
Sandra Day O’Connor
Reagan
09/81
99-0
46
53
1
John Paul Stevens
Ford
12/75
98-0
60
38
2
William Rehnquist
Nixon
12/71
68-26
54
44
2
Lewis Powell
Nixon
12/71
89-1
54
44
2
Harry Blackmun
Nixon
05/70
94-0
57
43
0
Warren Burger
Nixon
06/69
74-3
57
43
0
Thurgood Marshall
LBJ
08/67
69-11
64
36
0
Abe Fortas
LBJ
08/65
Voice
68
32
0
Arthur Goldberg
Kennedy
09/62
Voice
64
36
0
Bryon White
Kennedy
04/62
Voice
64
36
0
Potter Stewart
Eisenhower
05/59
70-17
65
35
0
Charles Whittaker
Eisenhower
03/57
Voice
49
47
0
William Brennan
Eisenhower
03/57
Voice
49
47
0
John Harlan II
Eisenhower
03/55
71-11
49
47
0
Earl Warren
Eisenhower
03/54
Voice
48
47
1
Sherman Minton
Truman
10/49
48-16
54
42
0
Tom C. Clark
Truman
08/49
73-8
54
42
0
Frederick Vinson
Truman
06/46
Voice
57
38
1
Harold Burton
Truman
09/45
Voice
57
38
1
Wiley Rutledge
FDR
02/43
Voice
57
38
1
Robert Jackson
FDR
07/41
Voice
66
28
2
James Byrnes
FDR
06/41
Voice
66
28
2
Frank Murphy
FDR
01/40
Voice
69
23
4
William Douglas
FDR
04/39
62-4
69
23
4
Felix Frankfurter
FDR
01/39
Voice
69
23
4
Stanley Reed
FDR
01/38
Voice
76
16
4
Hugo Black
FDR
08/37
63-16
76
16
4
Benjamin Cardozo
Hoover
02/32
Voice
47
48
1
Owen Roberts
Hoover
05/30
Voice
39
56
1
Charles E. Hughes
Hoover
02/30
52-26
39
56
1
Harlan Stone
Coolidge
02/25
71-6
42
53
1
Edward Sanford
Harding
01/23
Voice
37
59
0
Pierce Butler
Harding
12/22
61-8
37
59
0
George Sutherland
Harding
09/22
Voice
37
59
0
William H. Taft
Harding
06/21
Voice
37
59
0
John H. Clarke
Wilson
07/16
Voice
56
40
0
Louis Brandeis
Wilson
06/16
47-22
56
40
0
James C. McReynolds
Wilson
08/14
44-6
51
44
1
Mahlon Pitney
Taft
03/12
50-26
44
52
0
Joseph R. Lamar
Taft
12/10
Voice
32
60
0
Willis Van Devanter
Taft
12/10
Voice
32
60
0
Charles E. Hughes
Taft
05/10
Voice
32
60
0
Horace H. Lurton
Taft
12/09
Voice
32
60
0
William H. Moody
T. Roosevelt
12/06
Voice
32
58
0
William R. Day
T. Roosevelt
02/03
Voice
32
56
2
Oliver W. Holmes
T. Roosevelt
12/02
Voice
32
56
2

Note: The final three columns indicate the partisan makeup of the U.S. Senate at the time of the confirmation vote.

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Posted in National Politics, U.S. Senate, U.S. Supreme Court

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