From 98 to 0 to Party Lines, a Timeline of Supreme Court Confirmations

Ninety-eight to nothing. Say it out loud and let it sink in. In September 1986 the United States Senate confirmed Antonin Scalia to the Supreme Court without a single vote against him. Not one. This was a man who would spend three decades writing some of the sharpest, most unapologetic originalist opinions in the history of the Court, and the Senate that confirmed him looked at the file, shrugged at the philosophy, and said fine.

Seven years later Ruth Bader Ginsburg, a Democratic president's pick, went through ninety-six to three. Try to picture those numbers today. You can't. Anybody who has watched a confirmation in the last decade knows the modern math: a handful of votes either side of fifty, and an argument about whether the process itself is broken.

How did we get from there to here? Ask the cable shows and you will get a villain. Pick your side and the villain is whoever your side dislikes. I want to do something different. I want to walk the dates in order, give you the numbers I am certain of, and let you see that this story has many authors, and that both parties wrote chapters they would rather forget. The timeline below lists the votes as the Senate recorded them. If a number matters to you, check it against the Senate's own roll-call records before you repeat it.

The era of near-unanimity, 1986 to 1988

September 17, 1986: Antonin Scalia, 98 to 0. Ronald Reagan elevated William Rehnquist to Chief Justice and named Scalia, a federal appeals judge, to the open seat. The Senate confirmed Rehnquist 65 to 33 and Scalia 98 to 0. The contrast tells you something. Senators of the opposite party were willing to vote against a sitting justice they considered too conservative to lead the Court, but they gave a fresh nominee, who was arguably just as conservative in method, a free pass. In that period, the norm in the Senate was that a president's qualified nominee was confirmed, and ideology was a reason to vote no only in an extreme case.

October 23, 1987: Robert Bork, rejected 42 to 58. Justice Lewis Powell retired in June 1987 and Reagan nominated Bork, a former Yale law professor and a D.C. Circuit judge. The fight that followed changed everything. Senator Edward Kennedy denounced the nominee on the Senate floor within hours of the announcement. Outside groups ran television advertising against a Supreme Court nominee, something that was then rare. The Judiciary Committee held days of hearings in which Bork defended his writings at length. The committee voted against him and the full Senate voted 42 to 58. The language gained a new verb, "to bork," which is still used to describe a vicious confirmation fight. The lesson both parties took away was not subtle: a nomination is a campaign, and you can lose it.

November 1987: Douglas Ginsburg withdraws. Reagan's second choice for the seat, Judge Douglas Ginsburg, withdrew within days after reports about his past use of marijuana. He should not be confused with Ruth Bader Ginsburg, who sits later in this timeline.

February 3, 1988: Anthony Kennedy, 97 to 0. Reagan then nominated Anthony Kennedy, a judge on the Ninth Circuit. Kennedy was confirmed 97 to 0 in February 1988, in a presidential election year, by a Senate that was then controlled by Democrats. The vacancy had opened in 1987, and the seat was filled in the last year of a Republican president's term, by a Democratic Senate, because the nominee had been chosen with the votes in mind. Keep that one in your pocket the next time somebody tells you there was never a confirmation in an election year.

Two confirmations that told you where things were headed, 1990 to 1991

October 2, 1990: David Souter, 90 to 9. Souter, nominated by George H. W. Bush to replace William Brennan, was a quiet New Hampshire judge with a thin paper trail. Conservatives later came to regret him, and the phrase "no more Souters" became a rallying cry on the right. That tells you something about what the right took from this episode: a nominee who is easy to confirm may be easy because his record is thin.

October 15, 1991: Clarence Thomas, 52 to 48. Bush nominated Thomas to replace Thurgood Marshall. The Judiciary Committee tied seven to seven on whether to recommend him and sent the nomination to the floor without a recommendation. Then came the allegations by Anita Hill, a law professor who had worked with Thomas, and the committee reopened its hearings for several days of televised testimony. The Senate confirmed Thomas 52 to 48, one of the closest votes for a justice in the twentieth century. Whatever you think of the facts, the lesson of those weekend hearings stuck: a confirmation hearing could be a national drama, with consequences for everyone in the room.

The quiet confirmations of the Clinton years, 1993 and 1994

August 3, 1993: Ruth Bader Ginsburg, 96 to 3. Bill Clinton nominated Ginsburg, an appeals judge and a longtime litigator for the ACLU's Women's Rights Project, to replace Byron White. The Senate, including most Republicans, voted yes. Republican senators accepted a basic principle: a president who wins an election gets to pick judges whom the Senate finds qualified, even when it disagrees with their politics.

July 29, 1994: Stephen Breyer, 87 to 9. Clinton's second pick, Breyer, replaced Harry Blackmun, and the Senate confirmed him 87 to 9. These two votes are the high-water mark of a norm that senators called the "qualifications" standard: they voted for nominees they would not have chosen themselves.

Pause here and note what had changed and what had not. The Bork and Thomas fights had made Supreme Court nominations a public spectacle. But the votes were still lopsided in 1993 and 1994, because the Senate had not yet sorted itself the way it has today. Conservative southern Democrats and moderate northeastern Republicans were still in the building, and those senators pulled the numbers toward the middle.

The judicial filibuster fights, 2003 to 2005

Lower-court nominations were where the dispute spread. Beginning in 2003, Senate Democrats used the filibuster to block several of President George W. Bush's appeals court nominees, an escalation of a tool that had been used rarely against judges. Republicans threatened to end the filibuster for judicial nominees by changing Senate precedent, which they called the "constitutional option" and critics called the "nuclear option." In May 2005, a bipartisan group of fourteen senators, the Gang of 14, struck a deal: Democrats would filibuster only in "extraordinary circumstances" and Republicans would hold off on the rule change. The deal held for a while, and it set up the confirmations that followed.

September 29, 2005: John Roberts, 78 to 22. Bush first nominated Roberts to the seat held by Sandra Day O'Connor, then, after Chief Justice Rehnquist died on September 3, moved Roberts to the Chief Justice's seat. The Senate confirmed him 78 to 22, with a significant number of Democrats in favor.

January 31, 2006: Samuel Alito, 58 to 42. Alito took the seat Bush had first offered to Harriet Miers, who withdrew in October 2005. The vote was 58 to 42, and the number of Democrats in favor was small. The fall in support from Roberts to Alito, in just four months, shows the pattern: the closer a seat came to shifting the Court's balance, the closer to party lines the vote.

The Obama appointments, 2009 and 2010

August 6, 2009: Sonia Sotomayor, 68 to 31. Barack Obama's first nominee replaced David Souter and was confirmed 68 to 31. A handful of Republicans voted yes.

August 5, 2010: Elena Kagan, 63 to 37. Kagan, then the Solicitor General, replaced John Paul Stevens and was confirmed 63 to 37. A handful of Republicans voted yes.

Two things stand out. Both nominees were confirmed with margins larger than the bare majority, and they were replacing justices who were already regarded as part of the Court's liberal wing, so the balance of the Court did not change. When a vacancy does not tip the balance, the vote is calmer. When it does, expect a fight.

The rule changes, 2013 to 2017

November 21, 2013: the Senate rewrites cloture. Frustrated by Republican blocks on a number of President Obama's judicial and executive nominees, Democrats, then in the majority, changed the Senate precedent so that cloture on executive-branch nominees and lower-court judges took a simple majority instead of sixty votes. Supreme Court nominees were not covered. Republicans warned at the time that the change would be used against the Democrats later. They were right.

February 13 and March 16, 2016: Scalia dies and Garland is nominated. Justice Scalia died on February 13, 2016. A month later, President Obama nominated Merrick Garland, the Chief Judge of the D.C. Circuit. The Republican Senate leadership announced that the Senate would not consider the nomination, arguing that the American people should have a voice in the selection through the presidential election that year. Garland received no hearing and no vote. Democrats called this unprecedented. Republicans answered that the voters were about to choose a president and that the seat should wait for them. Both sides reached for history, and each found examples it liked. You may argue about whether it was wise, and I have views on that, but notice what it was not: it was not a violation of any law. The Constitution gives the Senate the power to advise and consent, and it says nothing about a duty to hold a hearing.

April 6 and 7, 2017: Neil Gorsuch, 54 to 45. President Trump nominated Gorsuch for the Scalia seat. Democrats filibustered the nomination, and Republicans responded by extending the simple-majority cloture rule to Supreme Court nominees on April 6. Gorsuch was confirmed the next day, 54 to 45. The 2013 change made the 2017 change easy. The sixty-vote threshold for Supreme Court nominees, which had been the norm for decades, was gone for good.

Three more fights, 2018 to 2022

October 6, 2018: Brett Kavanaugh, 50 to 48. Kavanaugh, nominated to replace the retiring Anthony Kennedy, was confirmed 50 to 48 after allegations from Christine Blasey Ford led to a second round of testimony. It was one of the narrowest margins in modern history, and the process was among the most bitter.

October 26, 2020: Amy Coney Barrett, 52 to 48. Justice Ginsburg died on September 18, 2020. Barrett was nominated on September 26 and confirmed on October 26, 2020, 52 to 48, eight days before the presidential election. Republicans argued that, unlike in 2016, the president and the Senate majority belonged to the same party, which in their view made the difference. Democrats argued the principle should have been the same as in 2016. Notice that the argument here is about a norm, not about a law. No statute or constitutional clause said either side was right.

April 7, 2022: Ketanji Brown Jackson, 53 to 47. Jackson replaced Stephen Breyer and was confirmed 53 to 47. Three Republicans voted yes. The vote followed the party-line pattern that had become normal.

What the pattern says

Put the numbers side by side. Scalia: 98 to 0. Kennedy: 97 to 0. Souter: 90 to 9. Ginsburg: 96 to 3. Breyer: 87 to 9. Then Roberts: 78 to 22. Alito: 58 to 42. Sotomayor: 68 to 31. Kagan: 63 to 37. Gorsuch: 54 to 45. Kavanaugh: 50 to 48. Barrett: 52 to 48. Jackson: 53 to 47. The "no" votes grew from zero to forty-plus. That is a fact, and no amount of blaming one side makes it go away.

What changed? I would offer three causes, each of them documented.

1. The Senate sorted by party. In 1986 there were conservative Democrats and liberal Republicans. They are mostly gone. When every senator votes with a caucus that is ideologically tight, a nominee's lopsided margin disappears.
2. Outside groups learned how to fight. After Bork, both parties' allied organizations treated every Supreme Court seat as a campaign, with ads and mailings and fundraising.
3. The stakes rose. As courts took on more social and economic questions, a single seat became the difference between winning and losing issues that the voters never got a vote on. When you give judges that power, you should expect people to fight over who gets to be one. We explain how the confirmation machinery works in Every Step in Confirming a Federal Judge, from Vacancy to Oath.

If you want the source of the pressure, ask what happens when courts, instead of legislatures, decide the big questions. That is the argument in The Living Constitution Sounds Reasonable Until You Ask Who Gets to Update It and in Originalism Explained for People Who Skipped Law School. And the stakes extend back much further than 1986: see FDR Tried to Pack the Supreme Court in 1937 and His Own Party Said No.

The bottom line

• No single villain explains the slide from 98 to 0 to party lines. Both parties escalated at different times, and each justified it by pointing to the other.
• The Constitution requires a simple majority for confirmation. Every higher threshold was a Senate custom, and the Senate changed it by majority vote in 2013 and 2017.
• Seats that change the balance of the Court produce the closest votes. Seats that do not, produce calm ones. Expect that to hold.
• If you want better judges and calmer fights, put your effort where it counts: Senate elections, and the quality of the list a president picks from.
• Check roll-call votes yourself on the Senate's own website before you repeat any number you heard on television.