Highlights of Past Supreme Court Nominees

Of the 158 Supreme Court nominations sent to the Senate to date, only 12 have been rejected, seven have declined to serve and another 11 nominations have been withdrawn, according to the U.S. Senate Art and History Office. These rejections have been for a variety of reasons including the perception of personal or professional incompetence, inexperience, philosophical positions out of the mainstream of the public and allegations of impropriety. Some justices have had attempts made to discredit them after they have served on the court, while others have been rejected once and later confirmed.

The following are notable Supreme Court nominations throughout this nation’s history:

1789 | John Jay is unanimously confirmed the first chief justice of the Supreme Court due, like many of President George Washington’s first nominees, to his lengthy career in public service and support of the Constitution.

1795 | John Rutledge is nominated by President Washington to replace Chief Justice John Jay as the country’s second chief justice. Prior to his confirmation hearing, Rutledge speaks against the Jay Treaty — covering U.S. dealings with Great Britain — which is endorsed by the Federalist-controlled Senate and signed by President Washington. Rutledge’s views arouse the anger of the Federalist-controlled Senate and calling into question Rutledge’s political judgment — and for some senators, his mental competency. As a result, Rutledge is rejected, 10-14, making it clear that the Senate’s examination of a nominee’s qualifications could extend to his political views.

1796 | Samuel Chase is nominated by President Washington and confirmed in one day, due to his history of patriotism and his experience as a state judge. But Chase later falls out of favor for his support of the controversial Alien and Sedition Acts, passed in 1798 by the Federalists to stop foreign interference and silence criticism by the Democratic-Republicans. In 1803, Chase’s political opponents in the House of Representatives draw up impeachment proceedings charging judicial misconduct. Chase becomes the only Supreme Court justice ever to be impeached. However, political supporters in the Senate acquit Chase and he serves eight more years on the court.

1811 | President James Madison’s appointment of Alexander Wolcott holds the dubious distinction of being rejected by the widest majority for a Supreme Court justice nomination. Madison nominates Wolcott based on his Republican leadership in his home state of Connecticut. However, convinced Wolcott lacks appropriate legal training and experience, the Senate rejects his nomination by a 9-24 vote.

1835-6 | In January 1835, Andrew Jackson selects political ally Roger Taney as associate justice of the Supreme Court. Political opponents in the Senate block the vote on the last day of the session due in part to Taney’s association with Jackson. In December, Jackson again submits Taney to replace the late John Marshall. When the Senate reconvenes in 1836, the Democrats hold a slim margin and after bitter debate, approve Taney by a vote of 29-15.

1844-5 | During the last 14 months of President John Tyler’s term in office, his nominees John Spencer, Ruben Walworth, Edward King and John Read are rejected; King is rejected twice. These constitute the most Supreme Court nomination rejections of any president. Tyler’s strident support for states’ rights angers the Whig-controlled Senate. Tyler finally gets a justice on the Supreme Court with the confirmation of Samuel Nelson in February 1845, just as he is leaving office.

1861 | President James Buchanan nominates lawyer and Attorney General Jeremiah Black to the Supreme Court in the waning months of his presidency. Black’s nomination faces two obstacles: a new president, Abraham Lincoln, will take office in a month and Black is a Northerner opposed to abolition, thus displeasing many in the Senate. His nomination is rejected, 25 to 26.

1870 | One of the few appointments President Ulysses Grant makes is Ebenezer Hoar as justice of the Supreme Court. The Senate rejects Hoar’s nomination, 33-24, due in part to his opposition to the impeachment of President Andrew Johnson and his past rejection of political patronage while serving as attorney general under Grant.

1881 | President Rutherford Hayes nominates former Sen. Stanley Matthews in January, just before the end of his term. The Senate takes no action to confirm Matthews suspicious he will sustain monopolies due to his previous employment as a “railroad lawyer.” Two months later, President James Garfield nominates Matthews and after two months of debate, the Senate confirms him, 24-23.

1893-4 | President Grover Cleveland selects William Hornblower over the objections of New York Sen. David Hill. Hornblower’s nomination is defeated, 30-24. Unconcerned, Cleveland nominates Wheeler Peckham, again under Hill’s objections and he, too, is defeated 41-32. Three days after Peckham’s rejection, Cleveland foils Hill’s political maneuvering by nominating sitting Sen. Edward White of Louisiana, who is confirmed unanimously the same day.

1916 | President Woodrow Wilson nominates lawyer Louis Brandeis to the Supreme Court, sparking one of the most antagonistic confirmation fights in the history of the Senate. The controversy stems from Brandeis’ advocacy of “social jurisprudence” focusing on social and economic issues instead of constitutional precedents. Despite a vote of no-confidence by the American Bar Association and a slim two-vote margin in the Senate Judiciary Committee, he is confirmed by a wide 47-22 margin in the Senate.

1925 | President Calvin Coolidge nominates Harlan Fiske Stone, who becomes the first Supreme Court nominee to testify before the Senate Judiciary Committee. Though he faces a month of vigorous questioning, he is confirmed, 71-6.

1930 | President Herbert Hoover nominates 4th U.S. Circuit Appeals Chief Judge John Parker to the Supreme Court. Focusing on his earlier judicial record rather than his professional attributes, a strong opposition led by the American Federation of Labor and the National Association for the Advancement of Colored People accuse him of insensitivity to labor and racial problems. These efforts are successful in lobbying senators to reject his nomination, 39-41. Remaining on the court of appeals, Parker later hands down several significant decisions supporting the rights of blacks.

1967 | At the height of the civil rights movement, President Lyndon Johnson names civil rights legal expert Thurgood Marshall as the first black nominee for the Supreme Court. Marshall, who had successfully argued to strike down racial segregation in public education in the historic Brown v. Board of Education case, is confirmed, 69-11.

1968 | President Lyndon Johnson nominates sitting Justice Abe Fortas to replace Earl Warren as chief justice. Republican senators, in the minority but heartened by the possibility of capturing the presidency in the fall, launch a filibuster against the nomination. Debate rages on Fortas’ questionable financial activities and his role as a presidential adviser. His supporters are unable to muster enough votes to force cloture and Fortas asks Johnson to withdraw his nomination. Early the next year, he resigns from the court.

1969 | President Richard Nixon nominates appellate justice Clement Haynsworth Jr. to fill the Fortas vacancy on the high court. Haynsworth quickly runs into trouble with conflict-of-interest charges similar to Fortas’. He also faces resistance from labor and civil rights organizations. In a vote in which 17 of 43 Republicans cross party lines, the Senate rejects his nomination, 45-55.

1970 | Bitter over the Haynsworth rejection, President Nixon nominates strict constitutional constructionist G. Harrold Carswell, who is criticized by legal scholars for his inexperience. Sen. Roman Hruska of Nebraska tries to lend support when he argues, “Even if he is mediocre, there are a lot of mediocre judges … and they are entitled to a little representation, aren’t they?” Nonetheless, Carswell faces a torrent of opposition due to his earlier strident views of white supremacy. After three months of debate, he is rejected by the Senate, 45-51.

1981 | In the first year of his presidency, Ronald Reagan nominates Sandra Day O’Connor as the first woman to serve on the Supreme Court. During her confirmation hearings, O’Connor cautiously expresses conservative views on an array of issues and declines to be pinned down on the question of abortion. In a little over a month, the Senate confirms her appointment, 99-0.

1987 | President Reagan nominates conservative Robert Bork to succeed moderate Justice Lewis Powell. But Bork’s outspoken writings and judicial record on civil rights scare away conservative senators who fear losing black votes. In addition, interest groups launch an unprecedented media campaign highlighting Bork’s civil rights record in the South and environmental record in the West, heightening senators’ accountability to their constituency. The Senate rejects Bork, 42-58.

1991 | With the retirement of Justice Marshall, President George H.W. Bush nominates conservative Clarence Thomas, who would be the second black person to serve on the high court. The vote on Thomas deadlocks in the Senate Judiciary Committee. Three days before the Senate is scheduled to vote, charges of sexual harassment against Thomas by a former associate emerge. The nomination goes back to committee and in three days of televised hearings, Thomas denies all allegations. Two days after the second round of hearings, the Senate votes to confirm him, 52-48.

2005 | President George W. Bush first nominated John Roberts Jr., a former federal appellate judge, to succeed retiring Justice O’Connor, but he elevated the nomination to the chief justice position after Chief Justice William Rehnquist died of thyroid cancer. Roberts’ relatively short stint on the circuit court meant he had few published opinions to act as fodder for opponents, so his confirmation was generally assumed. During confirmation hearings, senators tried to draw out his opinions on issues ranging from affirmative action to abortion. In general, he addressed questions through the prism of legal precedent but did not answer specifics. The 50-year-old was confirmed in a 78-22 vote to become the youngest chief justice in 200 years.

Sources: U.S. Senate Art and History Office, Supreme Court Historical Society, Congressional Quarterly Press – the Future of the Supreme Court, NPR – A history of Conflict in High Court Appointments, Oyez U.S. Supreme Court Multimedia, Wikipedia Defeated nominees to the U.S. Supreme Court

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