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It’s Harder Than Ever To Confirm A Supreme Court Justice

UPDATE (April 6, 2022, 5:28 p.m.): In February, shortly after Justice Stephen Breyer announced he would retire, we looked back at just how partisan the Supreme Court nomination process has become, finding that only one of the seven justices confirmed since Breyer — Chief Justice John Roberts — has received more than 69 percent of the Senate’s votes. Moreover, we found that Roberts was also the only justice to have earned the backing of a majority of the other party’s senators.

That is unlikely to change either with Ketanji Brown Jackson’s nomination — the U.S. Senate is expected to vote to confirm her either Thursday or Friday, and we expect just three Republican senators, Susan Collins, Lisa Murkowski and Mitt Romney, to join Senate Democrats in voting to confirm Jackson to the court.

Read more on why the Supreme Court nomination process has become so partisan.


On July 29, 1994, the U.S. Senate voted 87 to 9 to confirm Stephen Breyer to the Supreme Court. Nominated by Democratic President Bill Clinton, Breyer received 100 percent support from the Democratic senators present, but he also secured 79 percent of the votes cast by Republicans.

That kind of overwhelming and bipartisan support for a president’s Supreme Court nominee wasn’t unusual at the time, but it ended up marking the end of an era. Breyer received more than 90 percent of the votes cast on his confirmation, in line with about three-fourths of Supreme Court nominees in U.S. history up to that point.1 But as the chart below shows, only one of the seven justices confirmed since Breyer — Chief Justice John Roberts — has received more than 69 percent of the Senate’s votes, and Roberts is also the only one to have earned the backing of a majority of the other party’s senators.

This is not to say that Supreme Court nomination processes always went smoothly prior to Breyer, and the Senate has rejected nominees or only narrowly confirmed them many times in the past, but as Princeton University political scientist Jonathan Kastellec’s data of Senate votes on high-court nominees since the nation’s founding shows, most nominees were overwhelmingly confirmed by the Senate. In fact, about half of all Supreme Court nomination votes have been voice votes, with no tally of individual votes — typically an indication of little or no opposition, as a senator would likely call for a recorded vote otherwise.

Those days are long gone, though. Since Breyer’s confirmation, four of the seven confirmed justices received less than 60 percent overall support in the Senate, and those four each earned support from less than 10 percent of the opposing party’s senators. This includes all three of former President Donald Trump’s Supreme Court picks, who progressively received less bipartisan backing: Neil Gorsuch got just two Democratic yeas in April 2017, Brett Kavanaugh one in October 2018 and Amy Coney Barrett zero in October 2020. In fact, Barrett’s lack of cross-party support marked the first time since 1869 that a Supreme Court nominee failed to garner a single vote from the other party. And with all three of Trump’s picks, they were confirmed only because of a Republican majority in the Senate.

Now it's Democrats’ turn to push their nominee, but they have even less margin for error than Republicans did during Trump’s tenure. Whereas Republicans always had at least one vote they could afford to lose, Democrats in a 50-50 Senate can’t spare a single vote.2 It’s why any hiccup in the nomination process, including some sort of health issue for a Democratic senator, could create real problems for Democrats.

As my colleague Nathaniel Rakich recently wrote for this site, there’s reason to think that all 50 Democrats will back Biden’s eventual pick, despite their recent trouble passing legislative priorities, such as Biden’s social spending plan and voting rights bill. And there’s some indication that a Republican senator or two might consider voting for the nominee, too. But at the same time, more moderate members of the GOP caucus, such as Sens. Susan Collins of Maine and Lisa Murkowski of Alaska, could give way to intraparty pressure to oppose Biden’s pick. Collins, for her part, recently criticized how Biden had gone about publicly promising to nominate a Black woman for Breyer’s spot on the court, while Murkowski faces a tough reelection battle and may want to avoid further irritating her already-frustrated party base.

All of this comes within the confines of the increased polarization in our politics, too, which has simply upped the ante on Supreme Court appointments. In fact, conflicts of the judicial branch are among the best illustrations of how the Senate has become more partisan, more majoritarian and less consensus-driven. First, in 2013, facing Republican opposition to judges nominated by Barack Obama, then-Senate Majority Leader Harry Reid backed the “nuclear option” to require simple majorities to confirm lower-court nominees. Then, in 2016, Sen. Mitch McConnell, the new majority leader, prevented a vote on Obama’s Supreme Court nominee Merrick Garland, in the hopes of keeping a seat open for a potential GOP president to fill — which is exactly how it panned out. To confirm conservative justices like Gorsuch (and those after him), McConnell expanded the use of simple majorities to confirm Supreme Court justices as well.

Now we face the potential scenario where the Senate confirms a Supreme Court nominee on a 50-50 vote with the vice president breaking the tie. That may or may not happen with Biden’s eventual choice, but it hangs out there as a distinct possibility because of the polarized times we live in. And that reality reflects the new normal of close, mostly party-line votes for nominees to the Supreme Court.

Footnotes

  1. Including voice votes, where no vote tally is recorded.

  2. This includes two independent senators, Angus King of Maine and Bernie Sanders of Vermont, who caucus with the Democrats. Democrats have the majority thanks to Vice President Kamala Harris’s tie-breaking vote.

Geoffrey Skelley is an elections analyst at FiveThirtyEight.

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