Answers to Judicial-Confirmation Trivia Questions

How did you do?

Here are my answers to last week’s questions.

1. Which federal judicial nominee received the highest number of negative votes from senators of the same party as the president who nominated him/her?

Helene White.

George W. Bush nominated White to a seat on the Sixth Circuit in April 2008, as part of a package deal with Michigan’s Democratic senators Carl Levin (White’s former cousin-in-law) and Debbie Stabenow. Bill Clinton had first nominated White to a seat on that court eleven years earlier, in 1997, but her nomination never received a hearing.

Sixth Circuit judge Helene White

White’s nomination in 2008 was confirmed by a vote of 63-32, with all 32 negative votes coming from Republicans. That same day, the Senate confirmed by voice vote the two other nominees that were part of the package deal, Raymond Kethledge to the Sixth Circuit and Stephen J. Murphy III to the Eastern District of Michigan.

As I discussed in “Senate Democrats Block Vote on Clinton Judicial Nominee,” 44 Democrats voted against cloture on Bill Clinton’s nomination of Brian Theadore (“Ted”) Stewart to a federal district court seat in Utah in 1999. But only five voted against his confirmation.

2. Which federal judicial nominee received the second highest number of negative votes from senators of the same party as the president who nominated him/her?

Uh oh. I have learned, thanks to a reader, that my original answer, now in brackets below, is wrong. The correct answer (at least until I learn that I’ve missed someone else) is the late Edward G. Smith, nominated by Barack Obama to a seat on the Eastern District of Pennsylvania. Republican senator Pat Toomey pushed hard for him, and 30 Democrats plus independent Bernie Sanders voted against his confirmation.

[Mark J. Bennett.

Donald Trump nominated Bennett to a seat on the Ninth Circuit in 2018. Bennett had previously served as Hawaii attorney general, and many Republican senators objected to his defense of state firearms laws in that capacity. Twenty-three Republicans, joined (for different reasons) by two Democrats, Cory Booker and Hawaii’s own Mazie Hirono, voted against cloture on his nomination, and a full twenty-seven Republicans voted against his confirmation.

(From what I hear, Bennett has proven to be quite a fine conservative judge.)]

3. Who was the most recent Supreme Court nominee of a Democratic president to have a Democratic senator vote no on his/her confirmation?

Elena Kagan.

One of the 37 negative votes against Barack Obama’s nomination of Elena Kagan in 2010 was cast by Democratic senator Ben Nelson of Nebraska.

Back in 1967, 10 of the 11 votes against LBJ’s nomination of Thurgood Marshall (for whom Kagan would clerk) were cast by Democratic senators from southern states. In 1968, when the cloture vote on LBJ’s nomination of Abe Fortas to be chief justice failed, 19 of the 66 Democrats voted against cloture and another 12 managed to avoid voting.

4. Who is the most recent Supreme Court justice to have been the third nominee to fill his/her seat?

Samuel Alito.

When Justice Sandra Day O’Connor announced her decision to retire in July 2005, George W. Bush initially nominated John Roberts to replace her. But after the death of Chief Justice William H. Rehnquist, Bush renominated Roberts to fill Rehnquist’s seat. He then nominated Harriet Miers to O’Connor’s seat, and after the swift collapse of that nomination, picked Alito.

5. Who is the second most recent Supreme Court justice to have been the third nominee to fill his/her seat?

Harry Blackmun (not Anthony Kennedy).

Richard Nixon’s first two nominations to fill the associate-justice seat vacated by Abe Fortas failed. In November 1969, the Senate voted down Nixon’s nomination of Fourth Circuit judge Clement Haynsworth by a vote of 55 to 45 (with 17 Republicans voting against). In April 1970, it rejected Nixon’s nomination of Fifth Circuit judge G. Harrold Carswell by a vote of 51 to 45 (with 13 Republicans voting no).

Nixon then nominated Eighth Circuit judge Harry Blackmun. The Senate confirmed Blackmun less than a month later, by a unanimous vote.

(Anthony Kennedy was Ronald Reagan’s third selection to fill the vacancy resulting from Justice Lewis F. Powell Jr.’s retirement in 1987. But following the defeat of Robert H. Bork’s nomination, Reagan’s second pick, Douglas H. Ginsburg, withdrew before he was ever formally nominated.)

6. Which currently sitting justice was nominated to fill a seat that had been occupied by which other currently sitting justice?

John Roberts to the D.C. Circuit seat held by Clarence Thomas.

In October 1991, Clarence Thomas vacated his seat on the D.C. Circuit when George H.W. Bush appointed him to the Supreme Court. In January 1992, Bush nominated John Roberts to that seat, but Senate Democrats blocked any action on his nomination.

7. Who is the most recent Supreme Court nominee to be confirmed on a voice vote?

Abe Fortas.

Yes, the same man who had 43 votes against the cloture motion on his nomination to be elevated to be chief justice in 1968 had been confirmed to his associate-justice position three years earlier by a voice vote. (It was Fortas’s photo that I included along with my questions.)

As this table reflects, voice votes on Supreme Court nominations were common through much of American history. Of the first 21 justices, 18 were confirmed by voice vote. So were 20 of the 23 justices appointed in the decades leading up to Fortas’s appointment.

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If you have some good judicial-confirmation trivia questions, please send them to me at ewhelan@eppc.org.