Fact-Checking the White House’s Supreme Court History

Brian Johnson, a student at George Mason University, is an HNN intern.
With the recent nomination of anti second amendment judge Garland for the open SCOTUS seat, we though a historical look back at presidential supreme court nominations was in order.

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History News Network
History News Network

USA –  -(Ammoland.com)- Mystery has recently shrouded the history of 1875, as the fight over the Supreme Court vacancy left by the late Antonin Scalia continues.

The GOP has insisted they will not allow a hearing or vote to take place on any nomination made by the Obama administration. Both sides of the aisle have invoked history to defend their positions.

Recently the White House released a fact sheet that indicated that since 1875 every Supreme Court nomination has received a hearing or vote from the Senate.

This left us wondering just what happened in 1875?

Dissecting this question requires consideration of the development of Senate confirmation hearings for Supreme Court nominations.

According to a 2009 Congressional Research Service report, since 1868 the Senate has referred almost every Supreme Court nomination to the Judiciary Committee, but did so, for much of our history, without the benefit of public confirmation hearings. The first supreme court nominee to face a hearing was George H. Williams, who was nominated for chief justice by President U.S. Grant in 1873. The hearing was held behind closed doors and was called to accommodate a small number of witnesses to testify against the nominee. Following strong opposition and negative press reports, President Grant was forced to withdraw the nomination.

There would not be another Senate confirmation hearing held for a Supreme Court nominee, either private or public, for the next forty years until Woodrow Wilson’s presidency. Professor Lucas Powe, a leading historian of the Supreme Court from the University of Texas at Austin, says that the process of public Senate hearings for nominations did not begin until 1916 with the nomination of Louis Brandeis. Brandeis’s public hearing lasted 19 days — the longest in history.

Between 1873 and 1916 there is no record of any Supreme Court nomination hearing taking place except for Williams and Brandeis. This report by the Congressional Research Service confirms Brandeis’s nomination was the first to trigger public hearings. Although this was an important precedent, the next six Supreme Court nominations (from 1916 to 1923) were either considered directly by the Senate, through the Judiciary Committee behind closed doors, or without referral to the committee.

Today’s process for Senate Supreme Court confirmation hearings require the nominee to be present for extensive questioning about their background and judicial philosophy. PolitiFact has explained that the modern format of public hearings combined with testimony from nominees started in 1955 with the appointment of John Harlan II.

So what’s the answer to the question we posed at the beginning? What exactly happened in 1875?

Nothing, actually. So why did the Obama White House point to 1875 as a milestone of some sort? We have no idea. Maybe officials meant to write 1873. Call it a presidential typo.

But that’s not the only problem with the White House history. The fact is not every nominee to the Supreme Court since 1873 has received either a hearing or a vote. The administration claim that they have has been rated mostly false by PolitiFact. This is because many nominees were withdrawn by the president before the Senate took action. The White House subsequently acknowledged this.

Since the creation of the Supreme Court in 1789, there have been 161 presidential nominations for the Supreme Court sent to the Senate for confirmation. Of that number, only 124 were confirmed. (Odd fact: of that number, only 117 served on the Court; 7 nominees were confirmed but declined to serve.)

The majority of failed nominations were withdrawn by the president. Only 11 nominees have been rejected through Senate roll-call votes. This is because roll-call votes weren’t customarily taken until second half of the twentieth century. Between 1890 and 1965 fewer than one-third of Supreme Court nominations were given a roll-call vote. The remaining two-thirds of nominees were accepted by voice vote or unanimous consent. Since 1965 only roll-call votes have been used.

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    B.ZerkerRicochetFrederick Vanickhijinx60GomeznSA Recent comment authors
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    B.Zerker
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    B.Zerker

    The way I learned it, back when they actually taught civics high school, is that the SCOTUS is the guarantor of the U.S. Constitution and the Bill of Rights (the first ten Amendments) which is the ABSOLUTE Supreme Law of this republic (see the Supremacy Clause, Article VI, Clause 2) which cannot be altered easily (see Article V). The Founders believed that a “free” people had the right of self-governance, free from the interference of an overbearing central government such as the one that they had just defeated (King George III of Britain) in the revolutionary war. For this reason,… Read more »

    Frederick Vanick
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    Frederick Vanick

    It is a real slap in the face of the American People ,that Sen.Kirk was the first to sell out and have a meeting with the Obama nominee .Kirk claims that The American People want a hearing and an up or down vote.Not this America Citizen until after the election in Nov.Garland , has stated he is anti Second Amendment .That should be a red flag as to why Obama is in so much of a rush to have him confirmed.

    Ricochet
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    Ricochet

    I wouldn’t be in any hurry after the November elections either. At least wait until February or so when we hopefully have a conservative president and an even more conservative Congress sworn into office than now. Kansas Sen Moran had been set to meet with the nominee, but his constituents set him right and he claims to have THEN dome some research on the nominee and decided he couldn’t confirm him. So why don’t they all do their research before having to have their constituents tell them what’s what? At least they do listen to their constituents, some of them… Read more »

    hijinx60
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    hijinx60

    The Obama nominee has already ruled (in his own mind and words) as being anti-gun. Anyone with such a given opinion should be rejected from ever sitting on the bench of any court since the 2nd Amendment is so plainly worded.

    Tony's Take
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    Tony's Take

    There sure are a bunch of liberal fools out there who believe that the SCOTUS is the final word on all things legal. May I remind everyone that this is not true. At it’s worst, their decisions can lead to war and many hundred of thousands deaths. Example, Leading-up to the Civil War was the Dred Scott Decision wherein no negro could ever be a US citizen.

    Elder Ambassador
    Guest
    Elder Ambassador

    A great many rulings by SCOTUS, particularly in the last 50 to 70 years are Null, Void, and Without Effect as they are not founded on the Constitution. Roe v Wade (there is NO mention of body privacy in it), Gay Marriage (marriage is purely a State issue), one man one vote (the States determine who is eligible to vote, and the Motor Voter act can NOT change the Constitution), and Many, MANY more!

    Carl
    Guest
    Carl

    Any first year law student can define shall or may in judicial language. Even my 7 year old knows she may do something or she shall do something, Makes you wonder the intelligence level on the court when they cannot comprehend the most definitive clause in the Bill of Rights. “shall not be infringed”
    “The difference between Genius and Stupidity is Genius has it’s limits” –Albert Einstein

    abelhorn
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    abelhorn

    NO NO NO
    The court is only to decide if a law is Constitutional
    according to LAW & FACT.
    If they can read it does not need interpretation.

    Boz
    Guest
    Boz

    Correct abelhorn! That is ALL they are supposed to do.

    GomeznSA
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    GomeznSA

    abelhorn – you are absolutely correct. Judges at ALL levels are supposed to make rulings based on laws and facts as they are presented. Unfortunately far too many (most?) use their bench as a place to ‘interpret’ and by doing so are falling prey to their personal biases and beliefs. If a judge is unable to put aside those beliefs and biases and make a legal decision based on those facts and laws, they are supposed to recuse themselves from that case. Few, if any, do so.

    TEX
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    TEX

    The critical problem with the Supreme Court is the lifetime appointment aspect. The Supreme Court is suppose to interprete the constitution and make rulings,not pass laws and make rulings along partisan lines.

    Clark Kent
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    Clark Kent

    Actually, the lifetime appointment aspect cuts both ways. You also have the reality of a jurist who believes in the Constitution sitting on the court for a lifetime.