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

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:

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:

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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