majority (along with one Republican-leaning independent), Fuller was confirmed, 41–20, with nine Republican votes. He went on to lead the Court through a period of rising professionalism but also its notorious decisions in Plessy v. Ferguson and Lochner v. New York.

‐In February 1893, lame-duck Republican president Benjamin Harrison — having been ousted by Cleveland, and only a few weeks from leaving office — nominated Howell Jackson, who was confirmed by the lame-duck Republican Senate by voice vote. Jackson, however, was a Democrat — he had served in the Senate as a Democrat, had fought for the Confederacy, and had been appointed to the Sixth Circuit by Cleveland. The Jackson nomination was thus a concession of Republican power in the lame-duck session, not an assertion. It would not bethe last time a weakened president reached for the bipartisan olive branch.


In short, durable norms of behavior of any kind are hard to identify in this period, from either the White House or the Senate. Confirmation fights were hotly contested, some nominees never got a vote, and presidents who were dealing from a position of weakness tended to choose nominees who would be acceptable to the opposing party.

1897–1932: De-escalating the Court

The Senate’s general lack of deference to Supreme Court nominees in the late 19th century was consistent with the weak presidencies of that era, as well as the view of justices as political actors — hence the tendency to appoint senators and Cabinet members to the Court (not until 1941 would we have a chief justice who had