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Politics and the Supreme Court and History
Wikipedia plus a spreadsheet = statistics, or lies, or damn lies, or something...
I'm looking at confirmed Supreme Court justices over the past hundred years. I don't have the data on confirmation votes that didn't pass; I think there are very few such, as a nominee who's not going to pass confirmation is usually withdrawn.
[Edited 2021 to include Amy Coney Barrett]
In the past hundred years, seven Justices have been confirmed against more than 30% opposition: the latest six (Barrett, Kavanaugh, Gorsuch, Kagan, Sotomayor, and Alito), and Thomas, all of whom are still on the court. An additional four were confirmed against more than 20% opposition: Roberts, Rehnquist, Minton, and Black, of whom Roberts is still on the court.
There have been 273 votes cast against confirmation in the past twenty years, and 196 such votes in the previous 85 years. The nine currently-sitting justices received, collectively, 330 "nay" votes at their confirmations, which is more than the total number of "nay" votes cast at the confirmations of the previous fifty-some justices combined, and ~45% of all the "nay" votes cast for confirmed justices in the history of the U.S. (I may be conflating some votes to put someone onto the court with votes to promote an already-sitting justice to Chief Justice.)
Justices confirmed by a Democratic-majority Senate after nomination by a Democratic President:
Kagan (63-37) in 2010
Sotomayor (68-31) in 2009
Breyer (87-9) in 1994
Ginsburg (96-3) in 1993
Marshall (69-11) in 1967
Fortas (acclamation) in 1965
Goldberg (acclamation) in 1962
White (acclamation) in 1962
Minton (47-16) in 1949
Clark (73-8) in 1949
Vinson (acclamation) in 1946
Burton (acclamation) in 1945
Rutledge (acclamation) in 1943
Jackson (acclamation) in 1941
Byrnes (acclamation) in 1941
Stone (acclamation) in 1941
Murphy (acclamation) in 1940
Douglas (62-4) in 1939
Frankfurter (acclamation) in 1939
Reed (acclamation) in 1938
Black (63-16) in 1937
Justices confirmed by a Republican-majority Senate after nomination by a Republican President:
Barrett (52-48) in 2020
Kavanaugh (50-48) in 2018
Gorsuch (54-45) in 2017
Alito (58-42) in 2006
Roberts (78-22) in 2005
Scalia (98-0) in 1986
O'Connor (99-0) in 1981
Warren (acclamation) in 1954
Cardozo (acclamation) in 1932
Roberts (acclamation) in 1930
Hughes (acclamation) in 1930
Stone (71-6) in 1925
Sanford (acclamation) in 1923
Butler (61-8) in 1922
Sutherland (acclamation) in 1922
Taft (acclamation) in 1921
Justices confirmed by a Democratic-majority Senate after nomination by a Republican President:
Thomas (52-48) in 1991
Souter (90-9) in 1990
Kennedy (97-0) in 1988
Stevens (98-0) in 1975
Rehnquist (68-26) in 1971
Powell (89-1) in 1971
Blackmun (94-0) in 1970
Burger (74-3) in 1969
Stewart (70-17) in 1959
Whittaker (acclamation) in 1957
Brennan (acclamation) in 1957
Harlan (71-11) in 1955
Justices confirmed by a Republican-majority Senate after nomination by a Democratic President: none.
This isn't necessarily a damning indictment: I think there were no vacancies in 1918-1920, nor 1946-1948, nor 1994-2000, and we all know what happened in 2014-2016. The last Democratic President to nominate a justice who was confirmed by a Republican Senate was Grover Cleveland.
I'm looking at confirmed Supreme Court justices over the past hundred years. I don't have the data on confirmation votes that didn't pass; I think there are very few such, as a nominee who's not going to pass confirmation is usually withdrawn.
[Edited 2021 to include Amy Coney Barrett]
In the past hundred years, seven Justices have been confirmed against more than 30% opposition: the latest six (Barrett, Kavanaugh, Gorsuch, Kagan, Sotomayor, and Alito), and Thomas, all of whom are still on the court. An additional four were confirmed against more than 20% opposition: Roberts, Rehnquist, Minton, and Black, of whom Roberts is still on the court.
There have been 273 votes cast against confirmation in the past twenty years, and 196 such votes in the previous 85 years. The nine currently-sitting justices received, collectively, 330 "nay" votes at their confirmations, which is more than the total number of "nay" votes cast at the confirmations of the previous fifty-some justices combined, and ~45% of all the "nay" votes cast for confirmed justices in the history of the U.S. (I may be conflating some votes to put someone onto the court with votes to promote an already-sitting justice to Chief Justice.)
Justices confirmed by a Democratic-majority Senate after nomination by a Democratic President:
Kagan (63-37) in 2010
Sotomayor (68-31) in 2009
Breyer (87-9) in 1994
Ginsburg (96-3) in 1993
Marshall (69-11) in 1967
Fortas (acclamation) in 1965
Goldberg (acclamation) in 1962
White (acclamation) in 1962
Minton (47-16) in 1949
Clark (73-8) in 1949
Vinson (acclamation) in 1946
Burton (acclamation) in 1945
Rutledge (acclamation) in 1943
Jackson (acclamation) in 1941
Byrnes (acclamation) in 1941
Stone (acclamation) in 1941
Murphy (acclamation) in 1940
Douglas (62-4) in 1939
Frankfurter (acclamation) in 1939
Reed (acclamation) in 1938
Black (63-16) in 1937
Justices confirmed by a Republican-majority Senate after nomination by a Republican President:
Barrett (52-48) in 2020
Kavanaugh (50-48) in 2018
Gorsuch (54-45) in 2017
Alito (58-42) in 2006
Roberts (78-22) in 2005
Scalia (98-0) in 1986
O'Connor (99-0) in 1981
Warren (acclamation) in 1954
Cardozo (acclamation) in 1932
Roberts (acclamation) in 1930
Hughes (acclamation) in 1930
Stone (71-6) in 1925
Sanford (acclamation) in 1923
Butler (61-8) in 1922
Sutherland (acclamation) in 1922
Taft (acclamation) in 1921
Justices confirmed by a Democratic-majority Senate after nomination by a Republican President:
Thomas (52-48) in 1991
Souter (90-9) in 1990
Kennedy (97-0) in 1988
Stevens (98-0) in 1975
Rehnquist (68-26) in 1971
Powell (89-1) in 1971
Blackmun (94-0) in 1970
Burger (74-3) in 1969
Stewart (70-17) in 1959
Whittaker (acclamation) in 1957
Brennan (acclamation) in 1957
Harlan (71-11) in 1955
Justices confirmed by a Republican-majority Senate after nomination by a Democratic President: none.
This isn't necessarily a damning indictment: I think there were no vacancies in 1918-1920, nor 1946-1948, nor 1994-2000, and we all know what happened in 2014-2016. The last Democratic President to nominate a justice who was confirmed by a Republican Senate was Grover Cleveland.
no subject
According to the numbers above, 11 Senators voted against Marshall, but 10 also didn't vote (which would put him in the 20% opposition group) and Minton's 47-16 means 33(!) Senators didn't vote (into Kavanaugh territory) and Minton's Wikipedia page makes it sound like the confirmation process was fairly contentious. Looks like 23 abstained for Burger, 14 for Harlan, 27 for Butler, 19 for Stone, 15 for Clark, and 17 for Black which would put them all in 20% or 30% territory.
Perhaps the big change is that voters won't take not voting on a confirmation as an option.
no subject
Abstention may have been considered a more genteel, less confrontational way of saying "nay". Note that in all the cases you mention except Minton, replacing all the abstentions with "nays" wouldn't have changed the outcome. Which suggests that Senators knew pretty accurately how the votes were going to fall before they cast their own, and felt safe saying "abstain" rather than "nay".
I don't know anything about Minton except what I just read on Wikipedia, but the large number of abstentions in that case may have been because he was a former Senator, and a lot of his former colleagues were uncomfortable voting against his confirmation. It may also be that some of his same-party colleagues, while appreciating his help in the Senate, thought he might be too partisan for the Supreme Court and couldn't bring themselves to vote "aye".