Speed of Presidential and Senate Actions on Supreme Court Nominations, 1900-2010
Released: 2010-08-06T00:00:00

Introduction

The nomination and confirmation of a Chief Justice or an Associate Justice to the U.S. Supreme Court is an infrequent event of major significance in American public life. To receive what may be lifetime appointment to the Court, a candidate must first be nominated by the President and then confirmed by the Senate. Midway in the appointment process, intensive hearings on a Supreme Court nomination, often taking at least three or four days, are routinely held by the Senate Judiciary Committee, which then can vote on whether to report the nomination to the Senate with a favorable recommendation.

Nominating and confirming Supreme Court Justices is an interdependent process. Neither the President nor the Senate acts alone. The decisions that each branch makes determine how quickly nominations are made and considered, and whether the nomination is successful. This report provides information on the pace of all Supreme Court nominations and confirmations since 1900, focusing on the actual amounts of time that Presidents and the Senate have taken to act (as opposed to the elapsed time between official points in the process). As discussed below, the speed with which the President makes Supreme Court nominations and the Senate acts on those nominations has been of continuing concern to Congress in recent years. Especially since 2005, a high priority has been assigned to making appointments according to timetables designed to assure that vacancies taking effect while the Court is in summer recess are filled in time for the nine-member Court to be at full strength when it convenes its next annual term.

Recent Nominations Activity

Activity During 2010

On April 9, 2010, Associate Justice John Paul Stevens wrote to President Obama that he would retire from "regular active service" when the Court recesses for the summer. Speculation about the retirement had been reported in the media for weeks, but even days before writing to President Obama Stevens' plans remained at least publicly unknown. According to one media account, Stevens' letter arrived at the White House at 10:30 a.m. on April 9. White House counsel Robert Bauer then notified the President, who was traveling aboard Air Force One.

Almost immediately, the President, Members of Congress, and members of the media began to comment on a potential schedule for considering Justice Stevens' replacement. In fact, the retirement letter itself referenced time concerns. Justice Stevens wrote he had concluded that "it would be in the best interests of the Court to have my successor appointed and confirmed well in advance of the commencement of the Court's next Term" in October 2010. President Obama also expressed his desire for a new Justice to be seated by the start of the fall term, saying that he would "move quickly to name a new nominee." He also urged the Senate to "move quickly in the coming weeks to debate and then confirm my nominee so that a new Justice is seated in time for the fall term." Senator Patrick Leahy, Chairman of the Judiciary Committee, has predicted that the new Supreme Court Justice would be confirmed by the Senate's August 2010 recess and said that there is "no question" that a nominee would be confirmed by the start of Court's fall term.

On May 10, 2010, President Obama announced that he had selected Solicitor General Elena Kagan as his nominee to replace Justice Stevens. At that time, the President reiterated his call for quick action on the nomination, saying, "I hope that the Senate will act in a bipartisan fashion ... and that they will do so as swiftly as possible, so she can get busy and take her seat in time to fully participate in the work of the Court this fall." Senator Leahy subsequently announced, on May 19, 2010, that Ms. Kagan's confirmation hearings would begin on June 28, 2010. Calling that timetable "a reasonable schedule that is in line with past practice," Senator Leahy noted that the Sotomayor confirmation hearings had begun 48 days after her nomination was announced (as noted in Table 2 at the end of this report). That schedule proceeded as expected. Forty-nine days elapsed between the May 10 announcement of the Kagan nomination and the start of hearings on June 28. Both time spans (49 and 48 days respectively for the Kagan and Sotomayor nominations) are close to or at the median 49 days that elapsed between the nomination announcement and the start of hearings for all Supreme Court nominees between 1981 and 2010. Figure 1 and discussion in the rest of this report provide additional detail.

The entire Kagan appointment process, starting with when President Obama first learned that Justice Stevens would leave the Court, until Senate confirmation on August 5, lasted 118 days. This interval was relatively close to, but longer than, the median duration of 113 days of the entire appointment process for Court nominations which received final Senate action during the 1981-2010 period.

Some individual phases of the Kagan appointment process took longer than the corresponding intervals for previous Supreme Court nominations. One such phase, for example, is the time interval between final committee action and final Senate action. Sixteen days elapsed between final Judiciary Committee action on July 20, when the committee favorably reported the nomination, and August 5, when the Senate confirmed Kagan. That 16-day interval was almost twice the nine-day median elapsed time between final committee and final Senate actions on Supreme Court nominations between 1981 and 2010. In a few relatively recent instances, however, the full Senate has taken much longer to act on a reported Court nomination than it did with the Kagan nomination. Specifically, the Senate took 34 days to vote on the Rehnquist Chief Justice and the Scalia Associate Justice nominations in 1986. Overall, it took longer to announce and consider the Kagan nomination than any since Ruth Bader Ginsburg's in 1993. Although the Kagan appointment process lasted 118 days, then-Judge Ginsburg's lasted 137. The timetable for selecting and considering the Kagan nomination stretched 21 days beyond what was required for then-Judge Sotomayer's nomination in 2009. Timetables for action on Supreme Court nominations are affected by the selection process, the Senate schedule, and other factors. For any given nomination, the Senate may, of course, proceed at any pace it deems appropriate.

Activity During 2009

Before the Stevens announcement, the Senate most recently considered a Supreme Court nomination during the spring and summer of 2009. On May 1, 2009, President Barack Obama announced that Justice David H. Souter intended to retire when the Court recessed for the summer. During his brief appearance at a White House press briefing on May 1, the President expressed the "hope that we can swear in our new Supreme Court Justice in time for him or her to be seated by the first Monday in October when the Court's new term begins."

On May 26, 2009, President Obama announced his intention to nominate Sonia Sotomayor, then a judge on the U.S. Court of Appeals for the Second Circuit, to the Souter seat. Shortly thereafter, discussion of various timetables began to emerge. The President and some Senate Democrats expressed the hope that the Senate would vote to confirm Judge Sotomayor before the Senate's August 2009 recess, in order to afford time for her to prepare for the start of the Court's term in October. Some Senate Republicans, however, were less supportive of a Senate vote before September, saying they wished to have as much time to examine the Sotomayor nomination as Senate Democrats were given in 2005-2006 for the Supreme Court nominations of Samuel A. Alito, Jr. and John G. Roberts, Jr.

The Senate Judiciary Committee began hearings on the Sotomayor nomination on July 13, 2009, and favorably reported it (by a vote of 13-6) on July 28. The Senate confirmed Sotomayor (68-31) on August 8, 2009—the same day the new Justice took the constitutional and judicial oaths of office.

Activity During 2005-2006

Late 2005 and early 2006 marked a period of transition among Supreme Court Justices. Associate Justice Sandra Day O'Connor's July 2005 retirement announcement marked the first pending Court vacancy since 1994. Within a few months, however, the Senate considered three nominations. As is discussed below, Judge John G. Roberts, Jr. was initially nominated to replace O'Connor, but that nomination was withdrawn when Chief Justice William H. Rehnquist died in early September. The Roberts nomination was withdrawn and re-submitted for the Chief Justice vacancy. The Senate confirmed Roberts in September 2005. Then-White House Counsel Harriet Miers was initially nominated to fill the again-pending O'Connor vacancy, but the Miers nomination was eventually withdrawn. Judge Samuel A. Alito, Jr. was confirmed to the O'Connor seat in January 2006.

As is noted throughout this report, media accounts and other research suggest that when these and other Court vacancies arise, the President, members of the Senate, and their staffs, can begin work on nominations immediately, even if official nominations are days or weeks away. Particularly when multiple vacancies occur in close succession or simultaneously, as they did in 2005, the President and the Senate might have different preferences about how quickly new nominees should be considered. Until 1980, the President often took longer to announce a nominee than the Senate did to take final action on nominees. By contrast, since 1981, Presidents have been quicker to announce nominations than the Senate has been to confirm or reject those nominations. The President and members of the Senate (especially the Judiciary Committee) each proposed their own timetables regarding the Roberts, Miers, and Alito nominations. The following discussion provides additional details.

The Roberts Nomination

On July 1, 2005, Associate Justice Sandra Day O'Connor surprised many in official Washington, and possibly President George W. Bush, with a one-paragraph letter announcing her retirement from the Supreme Court, effective upon the confirmation of her successor. Her announcement created the first vacancy on the Court in 11 years. The Court had just concluded its 2004-2005 term, and the opening session of the Court's next term, on October 3, 2005, was three months away. Finding a new Associate Justice took on added urgency, given the failing health of then-Chief Justice William H. Rehnquist. Departure of the Chief Justice as well as Justice O'Connor could result in the need for two Court appointments, and create the possibility of at least one vacancy on the Court when it reconvened in October—unless the new appointments were made expeditiously.

Hours after Justice O'Connor announced her retirement, a senior aide to Senate Majority Leader Bill Frist told reporters that, "Our goal is to have the court back at full strength by the first Monday in October." Senate Judiciary Committee staff were reportedly "poised to begin reviewing background materials" on potential nominees. Nevertheless, appointment of a new Justice in time for the Court's opening session seemed like a challenging goal. In recent years, the Senate Judiciary Committee, and the full Senate as well, had been embroiled in controversies over some of the President's nominations to the lower federal courts. Continued controversy seemed likely surrounding any future nominations to the Supreme Court.

On July 19, 2005, 18 days after receiving Justice O'Connor's retirement letter, President Bush announced his selection of John G. Roberts, Jr., a federal appellate judge, to be the next Associate Justice. Ten days later, on July 29, the President formally nominated Judge Roberts to the Court, with the nomination document immediately transmitted to the Senate, where it was referred to the Senate Judiciary Committee. Hearings on this nomination were scheduled to begin September 6, but those hearings would never take place.

When Chief Justice William H. Rehnquist died on September 3, Judge Roberts became the first Supreme Court nominee to be withdrawn by the President for one seat on the Court and re-nominated for another. The Senate Judiciary Committee quickly cancelled its Associate Justice hearings, and began Roberts's Chief Justice hearings on September 12, 2005. After receiving a favorable 13-5 vote by the Judiciary Committee on September 22, the nomination of Judge Roberts to be Chief Justice was confirmed by the Senate on the morning of September 29, 2005, by a 78-22 vote. Later that day, the confirmed nominee took both his constitutional and judicial oaths of office at the White House.

Due to the speed with which Judge Roberts was nominated to be Chief Justice and considered by the Senate Judiciary Committee and the full Senate, his appointment was completed in time for the Court to be at full strength at the start of its 2005-2006 term. With the start of that term, Justice O'Connor remained on the Court, in keeping with the intention stated in her retirement letter of stepping down only upon the confirmation of her successor. For his part, President Bush had declined to name a replacement for John Roberts to succeed Sandra Day O'Connor prior to the Senate vote on September 29 confirming Judge Roberts as Chief Justice.

The Miers Nomination

On October 3, 2005, President Bush announced his nomination of White House Counsel Harriet E. Miers to succeed Sandra Day O'Connor as Associate Justice on the Supreme Court. The President said that the Senate had shown during the confirmation of Chief Justice Roberts that it could act promptly, and called upon the Senate to "review [Miers's] qualifications thoroughly and fairly and to vote on her nomination promptly." At a press conference the next day, the President said that he expected the Senate "to hold an up-or-down vote on Harriet's nomination by Thanksgiving" (i.e., by November 24, 2005). Similarly, Senate Majority Leader Bill Frist called on his colleagues to move "expeditiously but carefully," and encouraged a floor vote "by Thanksgiving." Several news reports suggested that confirmation hearings could begin as early as November 7, 2005. Senator Arlen Specter, Chairman of the Senate Judiciary Committee, reportedly told reporters that he hoped the committee would complete hearings by Thanksgiving, but also reportedly emphasized that "thoroughness will be the objective," as opposed to meeting a particular timetable. He also reportedly said that the timing of hearings on the nomination would in part be up to Miers, who would have to study "so that she would have the grasp of these very complex decisions."

On October 27, 2005, Miers delivered a letter to the President withdrawing her nomination as Associate Justice, and the President "reluctantly accepted" her withdrawal. Both Miers and the President indicated that the action was precipitated by the Senate's request for documents about her service in the White House. However, others suggested that other factors may have been involved. In his statement accepting the withdrawal, the President said that he expected to fill the vacancy "in a timely manner."

The Alito Nomination

Four days after Harriet Miers's withdrawal, on October 31, 2005, President George W. Bush announced his nomination of Samuel A. Alito, Jr., a judge on the U.S. Court of Appeals for the Third Circuit, to replace Justice O'Connor. President Bush called on the Senate to "act promptly on this important nomination so that an up or down vote is held before the end of this year." Senate Majority Leader Bill Frist also predicted a relatively quick timetable for Senate consideration, but other Senators, including Minority Leader Harry Reid, suggested that Senate consideration of the nomination could last into the new year.

On November 3, 2005, Senate Judiciary Committee Chairman Arlen Specter and Ranking Minority Member Patrick Leahy announced that confirmation hearings on Judge Alito's nomination would not begin until January 9, 2006, with a vote by the committee scheduled for January 17, 2006, after five days of hearings. They said that the full Senate would vote on the nomination on January 20, 2006. Judiciary Committee hearings on the Alito nomination began and concluded as scheduled, although a targeted January 17 committee vote was postponed until January 24, 2006. A final floor vote was anticipated before President George W. Bush's January 31, 2006, State of the Union address. After Senators Specter and Leahy reportedly reached agreement on the revised committee schedule over the January 14-16 weekend, Majority Leader Bill Frist announced that "as soon as the Judiciary Committee reports the nomination, the full Senate will begin debate on Judge Alito the next day and move swiftly to a fair up-or-down vote." In a 10-8 party line vote, the Senate Judiciary Committee on January 24 reported Alito's nomination to the full Senate, which confirmed Alito, 58-42, on January 31, 2006.

Measuring the Pace of Supreme Court Appointments

For many Supreme Court appointments, the timing of individual events is determined by the decisions of various key players—by sitting Justices planning to leave the Court; by the President, who selects nominees to fill Court vacancies; and by Senate committee and party leaders, who respectively schedule committee and floor action on Supreme Court nominations. First, Justices who retire or resign from the Court must decide whether to provide the President with advance notice of that decision. For example, Justice Harry A. Blackmun told President William J. Clinton of his decision to retire in 1994, more than four months before the decision became public on April 6 of that year. Justice O'Connor, on the other hand, did not appear to have given President George W. Bush any advance notice when she resigned on July 1, 2005. Also, the mode of presidential notification varies. While President Clinton learned of Justice Blackmun's plans to retire through an informal conversation, Justice O'Connor apparently notified President Bush of her decision through a formal letter.

Once the President chooses a nominee, he alerts the Senate—by public announcement as well as by formal transmission of a written nomination to the Senate. Frequently, the President will announce and formally nominate his Supreme Court choice on the same day, or take both actions within a few days of each other. Less commonly, Presidents announce their intention to nominate a candidate, then make the official nomination a week or more later. The most extreme case of the latter involved President Ronald Reagan in 1981. On July 7 of that year, President Reagan announced he would send the nomination of Sandra Day O'Connor, then an Arizona state appeals court judge, to the Senate "upon completion of all the necessary checks by the Federal Bureau of Investigation." However, it was not until almost six weeks later, on August 19, that Judge O'Connor was officially nominated. As noted above, after the Senate receives a Supreme Court nomination, the Judiciary Committee normally holds hearings, followed by final committee action, and consideration before the full chamber.

Official and Unofficial Timetables

The measurement of how long the President and the Senate take to execute their official duties surrounding Supreme Court nominations necessarily focuses on official dates of action taken. The most important of these action dates include those on which (1) an outgoing Justice officially informs the President of the intention to step down from the Court (or, alternatively, the date on which a Court seat is vacated due to the death of a Justice), (2) a President formally nominates someone to the Court, the Senate receives the President's nomination, and the nomination is referred to the Senate Judiciary Committee (almost always all on the same date), (3) the Senate Judiciary Committee holds hearings on the nomination, (4) the committee votes on the nomination, and (5) the Senate votes on whether to confirm, or chooses to take no action.

In addition to these dates, however, the President and the Senate usually consider Supreme Court nominations outside official timetables. Just as the President can begin considering a new nominee as soon as he knows a vacancy will arise, the Senate can begin preparing to consider a nominee as soon as the President announces his choice, even if the receipt of the formal nomination is still days or weeks away. Fundamentally, nominations and confirmations to the Supreme Court involve both formal and informal decisions. While formal decisions are easily accessible in historical records, informal decisions—sparsely mentioned in the formal record, or not mentioned at all—might, in many cases, provide better insight into how long the process truly takes.

Objectives of This Report

This report explores the speed of presidential and Senate decision-making surrounding nominations to the Supreme Court from 1900 to the present. The analysis concentrates on the period 1900-2010: (1) relevant historical data for this period are much more readily available and reliable than for earlier Court appointments, and (2) public confirmation hearings for Supreme Court nominations before the Senate Judiciary Committee—an important phase in the Supreme Court appointment process, and one of particular interest to this report—were unheard of before the 20 th century.

Although research on Supreme Court nominations often focuses on either presidential or Senate decision-making, this analysis considers the time both institutions take to make decisions about, and act on, nominees. The report also takes a unique approach in discussing—as well as can be determined—how long Presidents actually take to decide who their nominees will be, and how long the Senate actually takes to act on nominations. For example, rather than starting the nomination clock with the official notification of the President of a forthcoming vacancy (e.g., the receipt of a formal retirement letter), this analysis focuses on when the President first learned of the vacancy (e.g., a private conversation with the outgoing Justice). Likewise, rather than starting the confirmation clock with the transmission the official nomination to the Senate, this analysis focuses on when the Senate became aware of the President's selection ( e.g., by a public announcement by the President).

In many cases, establishing precisely when a President knew that he would have the opportunity to make a Supreme Court nomination is impossible. Such information might never have been recorded or known by anyone except the President and his inner circle. However, historical research reveals several instances when a President had advance knowledge of an impending vacancy, well before the public announcement of a Justice's intention to leave the Court. Data sources used to determine when Presidents first knew of vacancies included historical newspapers, official documents such as public presidential papers (which contain Justices' retirement letters to various Presidents), and CRS consultations with presidential libraries. Dates cited throughout this report and in Table 1 , Table 2 , and Table 3 , at the end of the report, are based on that research.

The dates and intervals presented here may differ from those in other sources, such as media reports or even Congressional figures. In general, earlier starting dates and longer durations between dates presented here are likely due to this report's emphasis on when the President first learned of an opportunity to make a nomination and when the Senate first learned of an opportunity to act on a nomination—regardless of official timetables. In addition, events such as withdrawals, rejected nominations, and recess appointments can uniquely affect calculating intervals in the nomination and confirmation process. The tables and accompanying notes show which dates were selected to start and stop the nominations clock in these cases. Different methodologies could yield different results. This report takes no position on the appropriateness of other methodologies, and contrasting this report's methodology with alternatives is beyond the scope of the report.

How Supreme Court Vacancies Occur

The need for a new appointment to the Court arises when a Justice position becomes vacant, due to death, retirement, or resignation, or when a Justice announces his intention to retire or resign. If the vacated seat is that of the Chief Justice, the President, if he chooses, may nominate a sitting Associate Justice to be Chief, thus setting the stage for the creation of an Associate Justice vacancy as well. Vacancies on the Court also will occur if Justices resign to receive new government appointments or to seek new government positions. When a nomination fails in the Senate, the President must select a new nominee (unless the President chooses to re-nominate his first choice).

Death of a Sitting Justice

Supreme Court Justices receive what may be lifetime appointments, "good Behaviour" being the only constitutionally specified requirement for continued service. Lifetime tenure, interesting work, and the prestige of the office result in Justices often choosing to serve as long as possible. Historically, a number of Justices have died in office. Most recently, Chief Justice William H. Rehnquist died on September 3, 2005, after battling thyroid cancer for almost a year. Death in office was common on the Court during the first half of the 20 th century—14 of 34 vacancies between 1900-1950. In fact, all five Court vacancies occurring between 1946 and 1954 were due to death of a sitting Justice (see Table 1 ). Of the 23 vacancies since 1954, though, no Justice had died while still on the Court until Chief Justice Rehnquist in 2005.

Retirement or Resignation of a Sitting Justice

Since 1954, retirement has been by far the most common way in which Justices have left the bench (19 of 23 vacancies occurring after 1954 resulted from retirements). Resignation (i.e., leaving the bench before becoming eligible for retirement compensation) is rare. In recent history, two Justices have resigned from the Court. Justice Arthur Goldberg resigned in 1965 to assume the post of U.S. Ambassador to the United Nations. Justice Abe Fortas resigned in 1969 after protracted criticism over controversial consulting work while on the bench and a failed nomination to be elevated from Associate Justice to Chief Justice. When Justices retire or resign, the President is usually notified by formal letter. As noted previously, there is evidence in a few cases that a President informally learned of a forthcoming retirement in advance.

Pursuant to a law enacted in 1939, a Justice (or any other federal judge receiving lifetime appointment) may also retire if "unable because of permanent disability to perform the duties of his office," by furnishing the President a certificate of disability. Prior to 1939, specific legislation from Congress was required to provide retirement benefits to a Justice departing the Court because of disability who otherwise would be ineligible for such benefits, due to insufficient age and length of service. In such circumstances in 1910, for instance, Congress took legislative action granting a pension to Justice William H. Moody. As the Washington Post reported at the time, although illness had kept Justice Moody from the bench for "almost a year," he was not yet eligible for retirement.

Nomination of a Sitting Justice to Another Position

When a Chief Justice vacancy arises, the President may choose to nominate a sitting Associate Justice for the Court's top post. If the Chief Justice nominee is confirmed, he or she must, to assume the new position, resign as Associate Justice, requiring a new nominee from the President to fill the newly vacated Associate Justice seat. However, this scenario is relatively rare. During the 1900-2009 period, Presidents attempted to elevate Associate Justices to Chief Justice four times, with the Senate confirming three nominees. Most recently, in 1986, President Ronald Reagan nominated then-Associate Justice William H. Rehnquist to be Chief Justice.

Presidents may also nominate sitting Justices to other political posts, which (if accepted) require resignation from the Court. Between 1900 and 2009, three Justices resigned to pursue other formal public service. In 1916, Justice Charles Evans Hughes resigned to pursue the Republican nomination for President. Justice James F. Byrnes resigned on October 3, 1942, becoming Director of Economic Stability for President Franklin D. Roosevelt. As noted previously, Justice Arthur Goldberg resigned in 1965 to become the U.N. Ambassador.

Controversial, Withdrawn, and Rejected Nominations

When any Court nomination (whether for an Associate or Chief Justice seat) fails in the Senate, the President may either re-submit the nomination or choose another candidate to fill the bench. The entire process thus begins anew. Withdrawals and rejections can greatly increase the amount of time taken to confirm Justices to the Court. Controversial nominees who are eventually confirmed also usually take more time to consider. The late 1960s and early 1970s were one of the most tumultuous periods of nominations and rejections in the Court's history. On May 14, 1969, Justice Abe Fortas resigned from the bench. Fortas had been embroiled in a scandal surrounding his consulting income, and failed to win confirmation as Chief Justice when President Johnson nominated him to the seat in 1968. Previously, on October 14, 1968, President Johnson had withdrawn the Fortas nomination as well as the nomination of Homer Thornberry to fill the vacancy that would have been created by Fortas's elevation. The Senate rejected President Richard M. Nixon's first two nominees to the Fortas seat—Clement F. Haynsworth, Jr. and G. Harrold Carswell. President Nixon's third choice, Harry A. Blackmun, was not confirmed until May 12, 1970—almost a year after Fortas's resignation.

Data Presentation

Table 1 (at the end of this report) lists dates for the following events regarding each nomination to the Supreme Court since 1900: (1) when the actual or prospective vacancy apparently became known to the President, (2) when the President announced the nominee, (3) when the Senate Judiciary Committee held its first hearing on the nominee, (4) when final committee action took place, and (5) when final Senate action took place. Table 2 presents the number of days elapsed for six related time intervals: (1) from when the President apparently learned of the actual or prospective vacancy to the his announcement of a new nominee, (2) from the nomination announcement to the first Judiciary Committee hearing, (3) from the first hearing to the committee's final action, (4) from the committee's final action to the Senate's final action, (5) from nomination announcement to final Senate action (duration of total Senate action), and (6) from the vacancy starting date (when the President apparently first became aware of the opportunity to make a nomination) to final Senate action. Table 3 provides summary statistics for the number of days elapsed during each of these intervals, for all nominations from 1900 until 2010, and for two periods within those dates—1900-1980 and 1981-2010. As discussed later in this report, those periods were chosen because the data indicate a sharp difference in the pace of most nominations before and after 1980.

Date of Actual or Prospective Vacancy

As noted previously, it is often difficult or impossible to determine the specific date that a President first knew he would have the opportunity to name a new Justice to the Supreme Court. The President always has the constitutional obligation to make nominations to the Court when vacancies arise, and is certainly aware of the possibility that vacancies could arise at any time. However, the "Actual or Prospective Vacancy Became Known to President" columns in Table 1 and Table 2 focus on documented, specific instances when the President knew he had, or soon would have, the opportunity to name a new Justice to the Court. These dates are based on extensive research about when the Justice's impending departure (or death) was made public, and whether the President had advance knowledge of the vacancy before it became public. In cases in which research revealed no public evidence that the President had advance notice (or in which the data are inconclusive), the date of the first public account of the vacancy marks the beginning of the process (the "When" column in Table 1 and Table 2 ).

For example, Justice Sandra Day O'Connor announced her retirement, pending confirmation of a successor, on July 1, 2005. There is no evidence that President George W. Bush definitely knew that O'Connor would retire until her announcement. Therefore, July 1, 2005, is used as the starting point for what became the Associate Justice nomination of John G. Roberts, Jr. On the other hand, although Chief Justice Warren Burger's retirement letter to Ronald Reagan was not released until June 17, 1986, President Reagan's public papers reveal that Burger informed the President of his decision to retire on May 27, 1986. Therefore, May 27, 1986, is used as the starting point for what became the William H. Rehnquist elevation to Chief Justice. Notes throughout Table 1 and Table 2 provide information on historical context.

Announcement-of-Nominee Date

Unless otherwise noted, the "President's Announcement-of-Nominee" date in Table 1 is the day when the President announced his nomination to the public or released the text of his nomination letter (whichever came first). This date is significant because it marks the Senate's first opportunity to begin considering the nomination, even if informally. There are a few cases, explained by table notes, in which Presidents announced their decisions less formally, but still publicly. For example, President Harry S. Truman casually told reporters during a July 28, 1949, press conference that he had offered an Associate Justice nomination to then-Attorney General Thomas C. Clark, even though Clark had not yet accepted the nomination. As discussed previously, in some cases, the announcement date differs by days or even weeks from the date the nomination was formally submitted to the Senate.

Use of Medians to Summarize Intervals

Table 2 provides the duration of each major interval in the process of nominating and considering Supreme Court Justices. Table 3 provides the median number of days for each major interval in the process. The median is the middle number in a set of observations (in this case, the number of days involved in each stage of considering Supreme Court nominations). The median is generally the preferred measure of central tendency in social science research. As statistician William H. Greene notes, "Loosely speaking, the median corresponds more closely than the mean to the middle of a distribution [group of numbers]. It is unaffected by extreme values." In other words, the median represents the best example of the "average" case, regardless of extremely short or long individual confirmations.

However, in describing the speed of the Supreme Court nomination-and-confirmation process, even median values should be considered carefully. Each nomination is different, and political context and historical factors can have a major impact on when various events occur. Several factors affecting individual nominations to the Court are discussed later in this report.

The Duration of the Nomination-and-Confirmation Process

During the entire period covered by this report (1900-2010), the President and the Senate have each taken varying amounts of time to act on Supreme Court nominations and confirmations. As Table 3 shows, from 1900-2010, Presidents took a median of 28 days after a vacancy occurred to announce their nominees, compared with a median of 23.5 days for final Senate action once the nomination was announced. The entire process, from actual or prospective vacancy to final Senate action, lasted a median of 79 days from 1900-2010.

However, the amount of time involved in each stage of the nomination-and-confirmation process varies widely when individual cases are examined. Some Supreme Court nominations are unusually fast, coming immediately on the heels a sitting Justice's departure from the bench. In these cases, the President almost certainly knew in advance of the outgoing Justice's intention to retire yet delayed announcement of the retirement to coincide with announcing a new nominee. For example, on May 27, 1986, President Reagan simultaneously announced the retirement of Chief Justice Warren Burger, the elevation of William H. Rehnquist to Chief Justice, and the nomination of Antonin Scalia to assume the Associate Justice seat being vacated by Justice Rehnquist. On the other hand, some nomination decisions can take months—at least to become public. For example, although Justice Harold H. Burton submitted his retirement letter to President Dwight D. Eisenhower on October 6, 1958, Eisenhower did not publicly announce Potter Stewart's nomination until January 17, 1959—103 days after announcing Justice Burton's retirement. The entire interval between Burton's announced retirement and Stewart's confirmation lasted 211 days, the bulk of the interval due to a long congressional recess.

Changes Since 1981

The data indicate that the median decision-making intervals surrounding Supreme Court nominations have changed substantially since 1981. When comparing Supreme Court nominations from 1900-1980 with those from 1981-2010, five patterns stand out. First, after apparently learning of vacancies, Presidents have typically been quicker to announce nominees since 1981 than in the previous 80 years. As shown in Figure 1 (and Table 3 ), from 1900-1980, Presidents took a median of 34 days to announce their nominees after apparently learning of vacancies, compared with only 19.5 days from 1981-2010.

Second, and perhaps most notably, the median interval between the President's announcement of his nominee and the first Judiciary Committee hearing was substantially longer from 1981-2009 than from 1900-1980. As shown in Figure 1 (and Table 3 ), this period almost quadrupled—from 12.5 days during the 1900-1980 period to 49 days from 1981-2010. Again, however, context is important. Even before hearings begin, the Senate can be actively working on the nomination. For example, prior to the start of John G. Roberts's hearings (and even before his nomination was submitted to the Senate), Senators met privately with Judge Roberts, and some pressed the White House to release records from Roberts's Department of Justice service. The Harriet Miers and Samuel Alito nominations followed similar patterns.

Third, committee and floor action from 1981-2010 also took slightly longer than prior to 1981. From 1981-2010, the Judiciary Committee took a median of 15 days to reach a decision after starting hearings, while the interval between final committee action and final Senate action took nine days (compared with six and three days respectively from 1900-1980).

Fourth, as shown in Figure 1 (and Table 3 ), total Senate activity (the interval between the President's announcement of the nominee and final Senate action) increased from a median of 17 days (1900-1980) to 84 days (1981-2010).

Finally, the entire nomination-and-confirmation process took substantially longer after 1980 than during the previous 80 years. The median duration for the entire process (from when the President apparently became aware of a vacancy until the Senate's final action on the nomination) was almost twice as long from 1981-2010 than during 1900-1980 (113 days versus 59 days, respectively).

Factors Influencing the Speed of the Process

Some elements of the decision-making process surrounding the naming and the confirmation or rejection of Supreme Court nominees are known only to Presidents, nominees, and a few select advisors. Other elements are more obvious. Each nomination has its own political context, making each nomination somewhat different. However, several factors appear to be relatively constant in affecting the speed of Supreme Court nominations and Senate decisions.

How the Vacancy Occurs

How quickly the President announces his nominee and how quickly the Senate considers that nomination can depend on how the vacancy occurred. When Justices die unexpectedly, Presidents can be eager to bring the Court back to full strength as soon as possible. On July 19, 1949, for example, Justice Frank Murphy unexpectedly died of a heart attack after a brief illness. President Harry S. Truman announced his nomination of Thomas C. Clark at a press conference nine days later, on July 28. The Senate also considered the nomination quickly, beginning hearings on August 9. Clark's entire nomination-and-confirmation process lasted just 30 days. A few months later, Sherman Minton was confirmed even faster—in 24 days—after the death of Justice Wiley B. Rutledge. Nonetheless, sudden death does not guarantee that either the President or the Senate will make nomination-and-confirmation decisions quickly. For example, when Justice Rufus W. Peckham died unexpectedly on October 24, 1909, President William Howard Taft waited 50 days to announce a nominee. Once Taft announced his choice, the Senate confirmed Horace H. Lurton seven days later.

Retirements and resignations are often expected, allowing the President time to prepare for his choice even before an official announcement that a sitting Justice will step down. For example, at the time of his retirement, Justice William O. Douglas's health had been so poor and abilities allegedly in such decline that seven of his fellow Justices voted on October 17, 1975, to "effectively strip Douglas of his power" and excluded the aging Justice from deliberations. By the time Justice Douglas officially wrote to President Gerald R. Ford on November 12, 1975, announcing his retirement, the President was prepared to act quickly. He announced the nomination of John Paul Stevens just 16 days later. Congress, too, acted quickly, confirming Stevens 19 days later, on December 17, 1975.

Sometimes, though, even when retirements or resignations come with advance notice, the process moves slowly. For example, Justice Harry A. Blackmun privately told President William J. Clinton around January 1, 1994, that he was planning to leave the Court. Soon afterward, the White House staff began quietly considering replacements. However, President Clinton did not publicly announce Justice Blackmun's retirement until April 6, did not publicly announce Judge Stephen G. Breyer's nomination until May 13, and did not formally nominate Breyer until May 17. The Judiciary Committee began hearings 60 days after the nomination was announced, and the entire process surrounding Breyer's nomination lasted 209 days. However, decisions affecting the nomination were apparently being made even before Blackmun's retirement became public knowledge.

The Senate's Schedule

Congress's schedule, especially whether the Senate is in session at all, plays an important role in how long Supreme Court nominations take to reach a conclusion. In the early 1900s, several vacancies arose during summer recess or election years when Congress was away from the Capitol. In 1910, for example, Congress adjourned on June 25 and did not return until December 5—a break of more than five months. In the interim, Chief Justice Melville W. Fuller died of a heart attack on July 4. As press coverage noted at the time, although potential nominees were immediately considered, President William Howard Taft waited to formally submit a nomination to the Senate until Congress reconvened. On December 12, five days after the Senate reconvened, President Taft announced and formally submitted to the Senate his nomination of former Senator Edward D. White of Louisiana to be Chief Justice. That same day, without referring the nomination to the Judiciary Committee, the Senate quickly confirmed Senator White.

Three times during the 1950s, President Eisenhower resorted to recess appointments when Justices died or announced their retirement after Congress had already adjourned for the year. In each case, President Eisenhower formally submitted the nomination after the Senate convened the following January. Of the five persons whom he nominated to the Court, three first received recess appointments and served as Justices before being confirmed—Earl Warren (as Chief Justice) in 1953, William Brennan in 1956, and Potter Stewart in 1958. President Eisenhower's recess appointments, however, generated controversy, prompting the Senate in 1960, voting closely along party lines, to pass a resolution expressing opposition to Supreme Court recess appointments in the future.

President Eisenhower's actions were the most recent recess appointments to the Supreme Court, and recess appointments to the lower federal courts also have become relatively rare since the late 1960s. While a President's constitutional power to make judicial recess appointments was upheld by a federal court in 1985, such appointments, when they do occur, may cause controversy, in large part because they bypass the Senate and its "advice and consent" role. Because of the criticisms of judicial recess appointments in recent decades, the long passage of time since the last Supreme Court recess appointment, and the relatively short duration of contemporary Senate recesses (which arguably undercuts the need for recess appointments to the Court), a President in the 21 st century might be expected to make a recess appointment to the Supreme Court only under the most unusual of circumstances.

Today, Congress's availability is less of an obstacle to speedy consideration of nominations than in the past. Given Congress's increasingly year-round schedule, extended decision-making is more often the result of waiting for presidential decisions, background investigations of nominees, or preparations for Judiciary Committee hearings.

Committee Involvement and Institutional Customs

Today, it would be highly unusual for the Judiciary Committee not to hold Supreme Court confirmation hearings lasting at least a few days. In the past, however, the Judiciary Committee often handled Supreme Court nominations without holding hearings at all. As Table 1 shows, of the 22 nominees to the Court from 1900 to 1937, only three had Judiciary Committee hearings (Louis D. Brandeis in 1916, Harlan F. Stone in 1925, and John J. Parker in 1930 (whose nomination was eventually rejected)). In contrast, of the 41 nominees after 1937, only three did not have hearings. Nominees did not begin regularly testifying at their own hearings until John M. Harlan did so in 1955.

When the Judiciary Committee holds hearings, Senate floor consideration can be pushed back sometimes by weeks or even months. Controversial nominees often spur protracted hearings. For example, the Judiciary Committee spent 19 days considering Justice Louis D. Brandeis's nomination in 1916, and the interval between the start of hearings and final committee action lasted 105 days. The final Senate vote came eight days later. More recently, the Judiciary Committee, after learning of President Ronald Reagan's selection of Robert H. Bork, took 76 days to hold its first day of hearings on the nomination, and then 21 more days to conclude action on the nomination.

Senate custom plays an especially large role when sitting or former Senators are nominated to the Court. The Senate has almost always considered their colleagues' nominations to the Court within days of receiving the nomination, often without committee hearings or floor debate. For example, although President Taft waited five months to nominate Edward D. White (a former Senator from Louisiana) for Chief Justice, the Senate confirmed the nomination with no debate in less than one hour. Since 1900, three sitting Senators—Hugo L. Black of Alabama (1937), James F. Byrnes of South Carolina (1941), and Harold H. Burton of Ohio (1945)—have been nominated to the Court, and all were quickly confirmed. Senators George Sutherland of Utah (1922) and Sherman Minton of Indiana (1949) were nominated to the Court after having concluded their Senate service. Sutherland was confirmed on the same day on which President Warren Harding announced the nomination, and Minton was confirmed in 19 days.

The decades since 1945 have yet to test again the Senate tradition of bypassing the Judiciary Committee when the Supreme Court nominee is a sitting U.S. Senator; no President since then has nominated a sitting Senator. The last former Senator to be nominated to the Court, in 1949, was Judge Sherman Minton of Indiana. (After defeat for re-election to the Senate in 1940, he had been appointed by President Franklin D. Roosevelt to a federal appellate court judgeship.) In a break with tradition, the Supreme Court nomination of former Senator Minton was referred to the Judiciary Committee, and Senate confirmation followed the day after the committee approved the nomination.

Controversial Nominations

As noted previously, withdrawn, rejected, or controversial nominations can substantially lengthen the process. In these cases, although Presidents often name nominees fairly quickly, consideration of the nominations can be drawn out in the Senate. During Judge Robert H. Bork's controversial nomination, for example, Senate consideration of Bork lasted more than a month, from the first Judiciary Committee hearing on September 15, 1987, until the Senate's floor vote to reject the nomination on October 23, 1987. The entire process—from President Reagan's announcement of his intention to nominate Bork to Senate rejection—took 119 days.

Controversy can also delay confirmation of nominees who are ultimately successful. Despite a relatively quick nomination-and-confirmation process of 42 days in late 1924 and early 1925 for then-Attorney General Harlan F. Stone, his nomination was temporarily set back when it was recommitted to the Senate Judiciary Committee, apparently because of Stone's investigation as Attorney General of Senator Burton K. Wheeler. More recently, although Judge Clarence Thomas narrowly won confirmation in 1991, nominating and confirming him took 110 days, including a second round of Judiciary Committee hearings surrounding law professor Anita Hill's allegations against Thomas of sexual harassment.

Discussion and Conclusions

Understanding how long the previous Supreme Court nomination-and-confirmation process has taken, and what factors affected that schedule, can provide useful perspective on presidential decision-making and the Senate's preparations for future nominations. While Presidents and supporters of nominees want Justices confirmed quickly, some Senators will continue to emphasize their right to consider nominees carefully and their responsibility to hold sufficient hearings. Against that political backdrop, this report demonstrates that the length of time required to nominate and confirm or reject a nominee varies widely. Even median durations must be interpreted cautiously. The context surrounding each nomination is particularly important in understanding how long the process takes.

This report indicates that, from 1900-1980, the President's portion of the process took longer than the Senate's. Since 1981, though, there has been a substantial increase in the median duration between the President's announcement of a nominee and the start of Judiciary Committee hearings. As a result, the Senate's portion of the process has taken longer than the President's.

Prior to 1981, lengthy nomination-and-confirmation processes usually occurred because either the Senate was out of session when a vacancy on the Court arose, or the nomination was controversial. In recent decades, by contrast, slower decision-making has taken place during an era when Congress is in session longer than during the early 20 th century.

Since 1981, the nomination-and-confirmation process has lasted a median of 113 days—almost twice as long as the 59-day median from 1900-1980. Although the data in Table 1 , Table 2 , and Table 3 provide a median measure of the process, political context is an essential backdrop for understanding the numbers. The President and the Senate share decision-making responsibilities for placing new Justices on the Court. Ultimately, the choices each institution makes determine how long nominations and confirmations take.

One possible explanation for the paradox of slower decisions despite more time in session is that, as some critics on both sides of the aisle contend, Supreme Court nominations have become battlegrounds for larger political debates. Another possibility is that the Senate is considering nominations more carefully than in the past, and therefore taking more time to make decisions about nominees. Similarly, the Senate might be using longer decision-making and scrutiny of nominees as a method of counterbalancing presidential power, especially when Senators believe that the President has chosen an unqualified nominee.

Some early 20 th century appointments to the Supreme Court were confirmed within days of a vacancy occurring. More recent nominations and confirmations, by contrast, typically have taken several weeks or months. How and when a vacancy occurs, the Senate's schedule, Judiciary Committee involvement, institutional customs, and whether or not the nomination is controversial, all affect the speed with which the President nominates, and the Senate passes judgment, on prospective Justices.