[Update] Representation of voters in the Supreme Court confirmation process

2020 October 26

This is an update to the previous post on the degree of popular support for the politicians who nominate and confirm US Supreme Court justices, following the confirmation of Amy Barrett earlier today.

With now five justices on the court having received below 50% “effective popular vote”, Samuel Alito at 49.6% is the median such justice. By this metric, the majority of current justices were opposed by the majority of votes. For historical comparison, of the 106 former justices, only 3 had confirmations that were even slightly close, all near the civil war: Lucius Lamar (32 - 28 in 1887), Stanley Matthews (24 - 23 in 1881), and Nathan Clifford (26 - 23 in 1857). (I could not find information on which senators voted for or against these justices, much less how many votes these senators received, so the only direct comparison I can make is the number of votes received in the senate.) Recall that most confirmations before 1967 were done by voice vote, so no official vote tally was recorded, but presumably this indicated support was overwhelming.

Here are the updated figures and tables:

Justice Year Nominator Senate ‘Yea’ ‘Nay’ ‘Yea’%
Marshall 1967 Johnson 61.34% 69 - 11 - - -
Burger 1969 Nixon 50.41% 74 - 3 - - -
Blackmun 1970 Nixon 50.41% 94 - 0 - - -
Powell 1971 Nixon 50.41% 89 - 1 - - -
Rehnquist 1971 Nixon 50.41% 68 - 26 - - -
Stevens 1975 Ford 61.79% 98 - 0 - - -
O’Connor 1981 Reagan 55.31% 99 - 0 81938226 0 100.00%
Rehnquist 1986 Reagan 59.17% 65 - 33 52484264 34602506 60.27%
Scalia 1986 Reagan 59.17% 98 - 0 87086770 0 100.00%
Kennedy 1988 Reagan 59.17% 97 - 0 79603513 0 100.00%
Souter 1990 Bush 53.90% 90 - 9 76500215 11844310 86.59%
Thomas 1991 Bush 53.90% 52 - 48 35475831 44253820 44.50%
Ginsburg 1993 Clinton 53.45% 96 - 3 88261651 2034999 97.75%
Breyer 1994 Clinton 53.45% 87 - 9 81479894 6195598 92.93%
Roberts 2005 Bush 51.24% 78 - 22 76870777 43929082 63.63%
Alito 2006 Bush 51.24% 58 - 42 59162228 60126394 49.60%
Sotomayor 2009 Obama 53.69% 68 - 31 86633780 30182701 74.16%
Kagan 2010 Obama 53.69% 63 - 37 75861452 37123012 67.14%
Gorsuch 2017 Trump 48.89% 54 - 45 54760599 76494514 41.72%
Kavanaugh 2018 Trump 48.89% 50 - 48 53364281 76883828 40.97%
Barrett 2020 Trump 48.89% 52 - 48 55669312 68437726 44.86%

The current justices are in bold. The ‘Yea’ and ‘Nay’ columns indicate the total number of votes received by the corresponding senators. William Rehnquist appears twice as he was appointed as associate justice in 1971 and then chief justice in 1986.

Some senators have been appointed to their position, and therefore received zero votes. Here is a list of every such senator that influenced my result:

Justice Year Senator State Vote
Barrett 2020 Kelly Loeffler Georgia Yea
Barrett 2020 Martha McSally Arizona Yea
Kavanaugh 2018 Cindy Hyde-Smith Mississippi Yea
Kavanaugh 2018 Jon Kyl Arizona Yea
Kavanaugh 2018 Tina Smith Minnesota Nay
Gorsuch 2017 Luther Strange Alabama Yea
Kagan 2010 Michael Bennet Colorado Yea
Kagan 2010 Roland Burris Illinois Yea
Kagan 2010 Kirsten Gillibrand New York Yea
Kagan 2010 Carte Goodwin West Virginia Yea
Kagan 2010 Ted Kaufman Deleware Yea
Kagan 2010 George LeMieux Florida Nay
Sotomayor 2009 Michael Bennet Colorado Yea
Sotomayor 2009 Roland Burris Illinois Yea
Sotomayor 2009 Kirsten Gillibrand New York Yea
Sotomayor 2009 Ted Kaufman Deleware Yea
Alito 2006 Bob Menendez New Jersey Nay
Breyer 1994 Harlan Mathews Tennessee Yea
Ginsburg 1993 Harlan Mathews Tennessee Yea
Thomas 1991 John Seymour California Yea
Souter 1990 Daniel K. Akaka Hawaii Nay
Souter 1990 Dan Coats Indiana Yea
Kennedy 1988 David Karnes Nebraska Yea
Scalia 1986 Jim Broyhill North Carolina Yea
Rehnquist 1986 Jim Broyhill North Carolina Yea
O’Connor 1981 George J. Mitchell Maine Yea

As we noted before, California uses a jungle primary system. Senators Kamala Harris and Diane Feinstein were each elected against opponents in the same party as them. In 2016 Harris received 7542753 votes while her opponent received 4701417, and in 2018 Feinstein received 6019422 votes while her opponent received 5093942; in each case, their opponent received a much larger percentage than all Republican candidates in the primary had received combined. This suggests that Harris and Feinstein received fewer votes than would have been expected had California not used a jungle primary system. Harris voted ‘Nay’ for the confirmations of Neil Gorsuch and Brett Kavanaugh, and both voted ‘Nay’ for the confirmations of Barrett. (While Feinstein was in the senate during the confirmations of Gorsuch and Kavanaugh, at the time her most recent election was against a Republican opponent; she had received almost 2 million more votes in that election.)

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