Congressional Pressure on the Justices: Selection and Rejection

Document Outline
Qualifications
Competence
Partisan Politics
Senatorial Courtesy
Sidebars

An individual senator or representative, particularly one who is personally close to the president, may wield some unofficial influence in the selection process. And because the Senate adheres to the custom of senatorial courtesy—it is reluctant to confirm a nominee who is repugnant to a senator of the nominee's home state—presidents do well to assure themselves in advance that their nominees will not be objectionable to the pertinent senators.

In at least two instances, a majority of the Senate and House successfully petitioned the president to nominate a specific individual. In 1862, 129 of 140 House members and all but 4 senators signed a petition urging President Abraham Lincoln to nominate Samuel F. Miller of Iowa to the vacancy caused by the death of Justice Peter V. Daniel. The Senate confirmed Miller's nomination half an hour after receiving it. After Justice Robert C. Grier announced his resignation in December 1869, members of Congress submitted a petition to President Ulysses S. Grant asking him to name former secretary of war Edwin M. Stanton to the seat. Pending in the Senate was the nomination of Grant's attorney general, Ebenezer R. Hoar, to a second vacancy on the Court. Hoar's nomination had run into some difficulty. Although Stanton was not Grant's first choice, the president acceded to the congressional request, thinking that the Stanton nomination might enhance Hoar's confirmation chances. But Grant's strategy never bore fruit. Confirmed immediately upon nomination, Stanton died four days later of heart trouble. The Senate subsequently rejected Hoar in February 1870.

Qualifications

While the Constitution specifies qualifications that the president and members of Congress must meet, it sets no corresponding requirements for Supreme Court justices. Proposals to establish qualifications for the Court have been made throughout the nation's history, but few have received more than passing attention in Congress.

The most frequent recommendations are that justices be natural-born citizens, of a minimum age, and have a certain number of years of judicial experience. This last suggestion may grow into an informal requirement. Pressure from the legal community and the increasing complexity of the law have made prior experience on the bench an important consideration in the selection of nominees. While it may not play a significant part in the selection of justices, the Senate has a crucial role in the confirmation of Supreme Court nominees. Article II, Section 2, of the Constitution provides that no nominee shall be seated unless confirmed by the Senate. Of the 148 individuals nominated to a seat on the Supreme Court, 28, nearly one-fifth, have failed to win confirmation. By contrast, the Senate has denied confirmation to only ten cabinet nominees.

Competence

Only two Supreme Court nominees have gone unconfirmed primarily on the grounds that they were professionally unqualified. In 1873 President Grant nominated his attorney general, George H. Williams, to be chief justice. Williams had served as chief justice of the Oregon Territory, but his record was undistinguished. When the Senate showed signs of balking at the nomination, Williams asked that his name be withdrawn.

Nearly one hundred years later President Richard Nixon's 1970 appointment of G. Harrold Carswell was rejected largely because of Carswell's mediocre juridical record. A second Nixon nominee, Clement F. Haynsworth Jr., although well qualified judicially, was rejected in part because he appeared insensitive to ethical improprieties and participated in cases where his financial interest might have involved him in conflicts of interest. Similar allegations of impropriety led to the resignation in 1969 of Justice Abe Fortas, nominated to the Court four years earlier by President Lyndon B. Johnson.

Partisan Politics

By far, most Senate rejections of Supreme Court nominees have been grounded in political considerations. A primary factor in the rejection of fourteen nominees has been the “lameduck” status of the nominating president or confidence by the party in control of the Senate that its presidential candidate will win the next election.

Both these problems afflicted the Court nominations of President John Tyler, who has the distinction of having more nominees rejected than any other president. Tyler had an opportunity to fill two vacancies, but only one of his six nominations was confirmed by the Senate. One nominee was rejected because his politics offended the party ruling the Senate. Two appointments were killed because the Senate—anticipating correctly that Tyler, a Whig, would not be his party's candidate for election—wanted to hold the vacancies open. And two, including one whom Tyler renominated, were rejected after the election of 1844, before the victor—Democrat James K. Polk—assumed office.

Ironically, Tyler made his only confirmed nomination during this period. As historian Charles Warren observed, Tyler's choice of Samuel Nelson “was so preeminently a wise one that the Senate at once confirmed it.” But the Senate's refusal to confirm any of Tyler's nominations to the second seat helped create the longest vacancy in Supreme Court history. Other lame-duck presidents whose nominees were rejected include John Quincy Adams, Millard Fillmore, James Buchanan, and Lyndon B. Johnson.

President Ronald Reagan was in the next to the last year of his eight-year stay in the White House when his nomination of Robert H. Bork was defeated by the Senate after one of the most vociferous confirmation battles in history. Bork's rejection was due largely to his often-articulated and well-known conservative views and the fact that he had been named to replace a “swing vote” on the Court, Justice Lewis F. Powell Jr. (Subsequently, Reagan's selection of Douglas H. Ginsburg also failed to win confirmation. Before his nomination was official, Ginsburg asked that his name be withdrawn because questions were raised concerning his possible conflicts of interest and his past drug use.)

Several other nominations also were rejected because a majority of the Senate objected to specific political views or actions of the nominee. George Washington's nomination of John Rutledge for chief justice was refused because Rutledge had publicly attacked the Jay Treaty. Although it became apparent during the confirmation process that Rutledge suffered from occasional fits of insanity, “[t]he excited political situation was such that irrespective of Rutledge's mental condition his rejection by the Senate was certain,” wrote Warren.

Senate Whigs rejected future chief justice Roger B. Taney twice—first as Treasury secretary, forcing him to resign his recess appointment, and then as an associate justice because he had carried out President Andrew Jackson's orders to remove government deposits from the Bank of the United States.

James Madison's appointment of Alexander Wolcott failed in part because of his strict enforcement of the embargo and nonintercourse laws during his tenure as customs collector. James K. Polk's nomination of George W. Woodward fell in part because Woodward held what were described as “native American sentiments” offensive to Irish-Americans and other ethnic groups.

The distinguished lawyer Jeremiah S. Black had two strikes against him. He was a lame-duck appointment when President Buchanan nominated him a month before Abraham Lincoln was inaugurated. He also was a northerner whose views on slavery were unacceptable to abolitionists. The Senate objected to Ebenezer R. Hoar for several reasons, two of which were that he had opposed the impeachment of President Andrew Johnson and had supported civil service reform. Rutherford B. Hayes's nomination of Stanley Matthews was initially rejected for political reasons and ethical considerations, but upon renomination he was confirmed.

In 1930 the American Federation of Labor (AFL) and the National Association for the Advancement of Colored People (NAACP) mounted a successful lobbying campaign against confirmation of Herbert Hoover's appointee, John J. Parker. A well-qualified federal judge from North Carolina, Parker was accused of insensitivity to labor and racial problems. Civil rights activists might well have rued their success. Parker continued as a judge on the Fourth Circuit Court of Appeals where he handed down some of the earliest and most influential decisions in favor of rights for African Americans. The man elevated to the Supreme Court in his stead, Owen J. Roberts, was not so supportive on civil rights issues.

One nominee was denied the position of chief justice because the Senate could not decide what his political views were. In addition to being seventy-four years old at the time of his nomination in 1874, Caleb Cushing had been a Whig, a Tyler Whig, a Democrat, a Johnson Constitutional Conservative, and a Republican. Those shifting allegiances gained him so many political enemies that Senate opposition forced President Grant to withdraw the nomination.

Perhaps the most pointed political rejection of a nominee was the treatment of Henry Stanbery, President Andrew Johnson's attorney general. Stanbery was well liked, but the president was not. To deny Johnson any opportunity to make appointments to the Court, Radical Republicans in Congress engineered the passage of legislation that reduced the number of justices from ten to seven as vacancies occurred. The seat to which Stanbery had been appointed in 1865 was thus abolished and his nomination was never considered.

Senatorial Courtesy

A feud between a president and a senator prompted the only two rejections made solely on the grounds of senatorial courtesy. When Justice Samuel Blatchford died, President Grover Cleveland sought to replace him with another New Yorker. Sen. David B. Hill, D-N.Y. (1892—1897), made several suggestions, but because he and Cleveland opposed each other on patronage matters, Cleveland ignored his recommendations and nominated New York attorney William B. Hornblower. Hill prevailed upon his colleagues, and the Senate rejected the nomination.

Undaunted, Cleveland next proposed another New Yorker, Wheeler Peckham. Again Hill objected and again the Senate followed his wishes. To Hill's surprise, Cleveland abandoned his intention to nominate a New Yorker and instead named Edward D. White of Louisiana, then serving as the Senate's Democratic majority leader. He was confirmed the same day he was nominated. In most instances the Senate confirms sitting or former senators with little or no inquiry or opposition. One exception to that tradition was the rejection of North Carolina senator George E. Badger (1846—1855) to fill the seat left vacant when Justice John McKinley died. President Fillmore, a Whig, named Badger, also a Whig, to the Court just three months before the inauguration of Democrat Franklin Pierce. Although it was highly irregular to reject one of its own members, the Democrat-controlled Senate wanted Pierce to fill the vacancy. As a result, Badger's nomination was postponed on February 11, 1853, by a one-vote margin, 26-25. Pierce took office the following month and nominated a fellow Democrat, John A. Campbell, who was confirmed.

Sidebars

Supreme Court Nominations Not Confirmed by the Senate

In the more than two centuries from 1789 to 1996, the Senate has rejected Supreme Court nominees twenty-eight times. One nominee, Edward King, twice failed to win Senate confirmation. A dozen have been rejected outright, and the remainder have been withdrawn or allowed to lapse when Senate rejection seemed imminent. Three were renominated later and confirmed. Following is the complete list of nominees failing to receive confirmation:
Nominee President Date of Nomination Senate Action Date of Senate Action
William Paterson Washington February 27, 1793 Withdrawn [1]  
John Rutledge [2] Washington July 1, 1795 Rejected (10-14) December 15, 1795
Alexander Wolcott Madison February 4, 1811 Rejected (9-24) February 13, 1811
John J. Crittenden John Quincy Adams December 17, 1828 Postponed February 12, 1829
Roger Brooke Taney Jackson January 15, 1835 Postponed (24-21) [3] March 3, 1835
John C. Spencer Tyler January 9, 1844 Rejected (21-26) January 31, 1844
Reuben H. Walworth Tyler March 13, 1844 Withdrawn  
Edward King Tyler June 5, 1844 Postponed June 15, 1844
Edward King Tyler December 4, 1844 Withdrawn  
John M. Read Tyler February 7, 1845 Not acted upon  
George W. Woodward Polk December 23, 1845 Rejected (20-29) January 22, 1846
Edward A. Bradford Fillmore August 16, 1852 Not acted upon  
George E. Badger Fillmore January 10, 1853 Postponed February 11, 1853
William C. Micou Fillmore February 24, 1853 Not acted upon  
Jeremiah S. Black Buchanan February 5, 1861 Rejected (25-26) February 21, 1861
Henry Stanbery Andrew Johnson April 16, 1866 Not acted upon  
Ebenezer R. Hoar Grant December 15, 1869 Rejected (24-33) February 3, 1870
George H. Williams [2] Grant December 1, 1873 Withdrawn  
Caleb Cushing [2] Grant January 9, 1874 Withdrawn  
Stanley Matthews Hayes January 26, 1881 Not acted upon [1]  
William B. Hornblower Cleveland September 19, 1893 Rejected (24-30) January 15, 1894
Wheeler H. Peckham Cleveland January 22, 1894 Rejected (32-41) February 16, 1894
John J. Parker Hoover March 21, 1930 Rejected (39-41) May 7, 1930
Abe Fortas [2] Lyndon Johnson June 26, 1968 Withdrawn  
Homer Thornberry Lyndon Johnson June 26, 1968 Not acted upon  
Clement F. Haynsworth Jr. Nixon August 18, 1969 Rejected (45-55) November 21, 1969
G. Harrold Carswell Nixon January 19, 1970 Rejected (45-51) April 8, 1970
Robert H. Bork Reagan July 1, 1987 Rejected (42-58) October 23, 1987

[1.] Later nominated and confirmed.

[2.] Nominated for chief justice.

[3.] Later nominated for chief justice and confirmed.

Source: Library of Congress, Congressional Research Service.




Document Citation
Elder Witt & Joan Biskupic, Congressional Pressure on the Justices: Selection and Rejection, in Guide to the U.S. Supreme Court, 3rd edition, Volume 2 (1997), available in CQ Electronic Library, CQ Supreme Court Collection, http://library.cqpress.com/scc/gussc2-0007549548 (last visited April 13, 2005). Document ID: gussc2-0007549548.
Document ID: gussc2-0007549548
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