Judicial-Confirmation Trivia Questions

Given that your attention might be focused on the impending Supreme Court rulings during this last half of June, I figured that I would present some lighter fare. So here are five judicial-confirmation trivia questions, along with some explanatory background.

I am opening up the comments section so that you can submit your answers there. You’re on an honor system not to peek at the answers that other people have provided (and not to do independent research) before you submit yours.

1. Who was the first lower-court federal nominee to have a vote on a cloture motion on his or her nomination?

Background: A motion for cloture is a means by which the Senate brings about an end to debate on a matter. (When a cloture motion passes, a limited period of post-cloture debate precedes the final vote on the matter.) As the Senate explains:

Prior to 1917 the Senate rules did not provide for a way to end debate and force a vote on a measure. That year, the Senate adopted a rule to allow a two-thirds majority to end a filibuster, a procedure known as "cloture." In 1975 the Senate reduced the number of votes required for cloture from two-thirds of senators voting to three-fifths of all senators duly chosen and sworn, or 60 of the 100-member Senate.

Nominations were not initially covered by the cloture rule, but a change to the rule in 1949 brought them under it.

In November 2013, the Democratic-led Senate abolished the 60-vote supermajority threshold and established a simple-majority rule on cloture on lower-court and executive-branch nominations.

2. Before 2017, who was the most recent Supreme Court nominee to face a vote on a cloture motion on his or her nomination as part of an effort to filibuster the nomination?

Background: As the Congressional Research Service emphasizes:

Although cloture affords the Senate a means for overcoming a filibuster, it is erroneous to assume that cases in which cloture is sought are always the same as those in which a filibuster occurs. Filibusters may occur without cloture being sought, and cloture may be sought when no filibuster is taking place. The reason is that cloture is sought by supporters of a matter, whereas filibusters are conducted by its opponents.

While “determining whether a filibuster is occurring in any specific case typically requires a degree of subjective judgment,” an effort to defeat cloture “with the purpose of blocking or delaying a [final] vote” qualifies as a filibuster.

On April 6, 2017, a cloture motion on Neil Gorsuch’s nomination to the Supreme Court failed to receive the necessary 60 votes. (It received 55 yeas and 45 nays.) Using the same means that the Democratic-led Senate had used in November 2013 to establish a simple-majority rule on cloture on lower-court nominations, the Republican-led Senate then extended that simple-majority rule to Supreme Court nominations. The Senate confirmed Gorsuch’s nomination that same day.

3. Before 2017, who was the most recent Supreme Court nominee to have a cloture motion on his or her nomination fail?

Background: Supporters of a matter will file a cloture motion in order to defeat a filibuster effort. A cloture motion fails when it does not receive the requisite number of votes to enable the Senate to proceed to a final vote on the matter under consideration.

4. Who was the most recent Supreme Court justice to take his or her seat by recess appointment?

The Recess Appointments Clause of the Constitution (Article II, section 2, clause 3) provides:

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

Throughout American history, more than 300 federal judges have received recess appointments.

In the ordinary case of a judicial appointment made pursuant to the Appointments Clause (Article II, section 2, clause 2), the president first submits a nomination to the Senate; the Senate confirms the nomination; and the president then appoints the confirmed nominee to an unlimited, or lifetime, tenure (in the terms of the Constitution, “during good Behaviour”). By contrast, a recess appointment is a unilateral act of the president and, as the text of the Recess Appointments Clause makes clear, lasts only until the end of the next session of the Senate.

5. Who was the most recent lower-court judge to take his or her seat by recess appointment?