Table 1.
Senate 'No' Votes for Confirmation by Judiciary Committee 'No' Votes Between 1955 and 1994

What do you see in this chart?

There appears to be a rather distinct link between the number of 'No' votes in the Judiciary Committee, which recommends to the full Senate whether or not to confirm the nominee, and the actual Senate vote. There are at least two reasons why this would be so. First, the Committee might be representative of the full Senate membership. Part of that is intentional with approximately the same proportion of Republicans and Democrats on the Committee as there are in the Senate. Second, Senators not on the Judiciary Committee may well take cues from Committee members or a particularly like-minded Committee member on how to vote.

At any rate, if one were to draw a straight line through the data points, it would show that for every 'No' vote in Committee there is typically around 6 or 7 'No' votes in the Senate. For you statistics people, the regression coefficient is 6.3 with a Y-intercept of 0.3. The correlation coefficient is .94.

One major exception to that result was Stephen Breyer receiving 9 'No' votes in the Senate while having none in Committee. Part of the explanation for that might be that Breyer used to work for the Committee and was well-respected by the Committee members for his work there. On the opposite side of such an equation is the vote on Earl Warren, which lists 3 'No' votes in Committee and in the Senate. However, we don't actually know how many 'No' votes there were in the Senate because the vote was not recorded. Only a voice vote was taken. The three 'No' votes in the Senate are a presumptive minimum, assuming that the three in Committee who voted 'No' likely voted 'No' in the Senate. Finally, Thurgood Marshall received 15 'No' votes in the Senate when we might have expected closer to 30, given the 5 'No' votes in Committee. However, those 5 'No' votes in Committee reflect the fact that the Judiciary Committee was overrepresentative of the South, and opposition to this first African-American justice was limited to senators from the South.

Notes

1. Committee 'No' votes are adjusted to reflect the realities of interpreting Committee member votes. Specifically, the Haynsworth 'No' votes were adjusted from seven to eight to reflect Senator Hugh Scott's 'Yes' as being merely a transmittal vote to send the issue on to the full Senate. Similarly, the Carswell vote was adjusted from four to six 'No' votes to reflect the transmittal votes of Senators Burdick and Mathias. All three senators indicated that their 'Yes' votes should not be interpreted as an endorsement for confirmation. Their explicit separation from nominee supporters on the Committee left the unmistakable impression that they did not support the nomination and, indeed, all did vote against confirmation in those respective Senate votes.

2. Senate 'No' votes reflect announced pairs. The largest impact in so doing was to increase the Marshall negatives from 11 to 15. Single votes were added to Harlan, Fortas (Chief Justice), and the first Rehnquist nomination. The Fortas vote for Chief Justice was not on confirmation but on whether to close debate on the confirmation. The failure to close debate doomed the nomination. Finally, Warren' s voice vote was announced as unanimous, but we recorded the three committee no votes as continuing against him in the full Senate.

3. The regression results that underlie these straight-line predictions are: b = 6.3; a = 0.3; adjusted R2 = .89; P < .0001

4. Abbreviations for the nominees receiving one or more no votes in committee are:
Bk Bork F2 Fortas 2nd Hy Haynsworth R1 Rehnquist 1st Sw Stewart
By Bryer Gs Ginsburg Mr Marshall R2 Rehnquist 2nd Th Thomas
Cr Carswell Hr Harlan Pw Powell Su Souter Wr Warren

This graph is reproduced, with permission, from George Watson and John Stookey. Shaping America; The Politics of Supreme Court Appointments. Harper Collins Publishers, 1995, p. 175.