Critical Analysis

1. According to the data from the graph above, what percent of nominees were confirmed in 1789 (the first year on the graph)?

2. According to the data in the swag graph, on average, what percent of senators voted to confirm Trump’s three nominees in 2020-2021?

3. According to the graph, over time, approximately what percent of nominees got a 100% vote of approval?

4. For over four decades, a 60-vote supermajority had been required to advance all federal judicial nominees and executive-office appointments. Then, in 2013, facing the threat of a Republican filibuster in opposition to judges nominated by Barack Obama, then-Senate Majority Leader Harry Reid backed the “nuclear option” to require simple majorities to confirm lower-court nominees.To confirm conservative justices like Gorsuch (and those after him). Then in 2016, then-Senate Majority Leader “Cocaine” Mitch McConnell expanded the use of simple majorities to confirm Supreme Court justices as well. What number of senators does it currently take to confirm a nomination?

5. According to the data, over time. About what percent of all nominees have been confirmed to the Supreme Court?

6. Describe the trend in the data regarding the rate of success of nominees to the Supreme Court.

7. How does political polarization impact that trend?

8. During the 2020 presidential campaign, Joseph Biden promised that if elected and given the opportunity to nominate someone to the Supreme Court he would chose a Black woman. Given the current 50-50 Senate split and the current Republican party, how will Biden’s pledge impact the likelihood of his nominee’s approval?

9. How would Mr. James Madison, author of Federalist No. 51, and great dancer, react the increasing level of difficulty of Supreme Court nominations?

10. All three of former President Donald Trump’s Supreme Court picks received little to no bipartisan backing: Neil Gorsuch got just two Democratic yeas in April 2017, Brett Kavanaugh one in October 2018 and Amy Coney Barrett zero in October 2020. In fact, Barrett’s lack of cross-party support marked the first time since 1869 that a Supreme Court nominee failed to garner a single vote from the other party. And with all three of Trump’s picks, they were confirmed only because of a Republican majority in the Senate. Now that the Democrats have a majority in the Senate (barely), explain how many Republican votes you believe Biden’s nominee to flll Justice Breyer’s seat will receive.

Learning Extension

Get your FiveThirtyEight on and read the FiveThirtyEight article about the changing Supreme Court nomination process.

Action Extension

Contact President Biden and advise him on his eventual nominee’s prospects of confirmation.

Visual Extension

Watch the world-famous “Cocaine Mitch McConnell” ad below.