Don’t get me wrong: I’m not saying that Elena Kagan should or will lose her bid to become a Supreme Court justice. In fact, the odds are with her: In the 211-year history of Supreme Court nominees, about 80% have been confirmed. But the road to confirmation can be rocky, and the reasons for failure are varied. Here’s my take on some of the most intriguing stories in the annals of unsuccessful Supreme Court nominations. [A complete report on Supreme Court nominees--both winners and losers-- is available at Congressional Research Service.]
The numbers [some of them]
- Individuals nominated to U.S. Supreme Court since 1789: 151
- Nominees not confirmed by Senate: 36
- Nominees rejected, but re-nominated later and confirmed: 6
- Nominees confirmed, but declining to serve: 7
- Nominees submitted more than once, but not confirmed: 6
The first to fail
America’s first unsuccessful Supreme Court nomination occurred in 1789. George Washington nominated William Paterson, but withdrew the nomination one day later, when he realized that he was violating the almost-still-wet U.S. Constitution by appointing a sitting US Senator. The law creating the Supreme Court barred anyone from serving who was in office when the law was enacted. Washington’s workaround was to wait until a few days later, when Paterson’s elected term ended, and a new Congress went into session. Paterson was then immediately confirmed.
Most rejections for a President
The U.S. President with the highest tally of rejected Supreme Court nominees was John Tyler. He had the opportunity to fill two Supreme Court vacancies. In the final 15 months of his presidency, he made 9 nominations, in a convoluted merry-go-round of nominations, withdrawals and re-nominations of the same five men. Only Samuel Nelson, his fifth nominee, was confirmed.
Roger B. Taney was nominated twice by President Andrew Jackson. Taney’s first nomination, to Associate Justice, was postponed indefinitely by the Senate. During the next Congress, he was nominated and confirmed as Chief Justice, and he went on to author the Dred Scott decision, which upheld the legality of slavery.
A victim of downsizing
On April 16, 1866, President Andrew Johnson nominated Henry Stanbery to replace a justice who had died the previous May. By the time Stanbery was nominated, however, the House of Representatives had passed a bill decreasing the number of associate justices in the Supreme Court from eight to six. The bill effectively eliminated the vacancy that Stanbery would have filled. Historians speculate that the downsizing was a calculated move by a Republican Congress to prevent Democrat Johnson from shaping the court. Interestingly, within two months of the inauguration of Republican President Ulysses S. Grant, Congress passed a law reinstating the eight-man Associate Justice bench.
If you want to be a Supreme Court justice, avoid being nominated by a president who is about to leave office. Two of President Lyndon Johnson’s nominees—Abe Fortas and Homer Thornberry—learned this lesson the hard way. Both were nominated during Johnson’s final seven months in office [after he announced that he would not seek re-election]. Seeing Johnson as a lame-duck president, nineteen Senators issued a statement indicating that, on this basis, they would oppose any nomination by President Johnson.
The biggest loser
Alexander Woolcott, nominated in 1811 by President James Madison, ran into a buzz saw of opposition because, as a U.S. customs collector, he had strongly enforced a controversial embargo. Senators also questioned his overall qualifications for the Court. The Senate rejected him by a vote of 9-24, the widest margin in Supreme Court history.
Although seemingly well-qualified for the Supreme Court, Douglas Ginsburg—nominated by President Reagan in 1987—never really made it to the starting line. After he was nominated, a report aired on National Public Radio (NPR) revealing that Ginsburg had used marijuana “on a few occasions” during his student days in the 1960s. Senators didn’t like that, but they were especially shocked to hear that he continued to smoke pot after graduation and while he served as a Harvard professor in the 1970s. Ginsburg got the message and withdrew his own nomination.
The rejected nominee whose name became a political verb
Supreme Court nominees who are rejected on the basis of their views—or at least their views as perceived by members of the Senate–are said to have been “borked.” The neologism derives from Robert Bork, nominated by President Ronald Reagan in 1987, and rejected by the Senate after some of the toughest and most substantive confirmation hearings in recent memory. Bork’s defenders say that his conservative views were unfairly portrayed, and conservative commentators tend to define “borking” as the unfair vilification and defamation of a nominee to block his or her appointment. Liberal commentators take a different view, describing what happened in his confirmation hearings as a rigorous probing of Bork’s legal positions.
But whichever is your preferred definition, subsequent nominees clearly learned a lesson from the original “borking:” to avoid public positions that would enable anyone to “bork” them. To see that lesson in action, watch excerpts of the Senate confirmation hearings of current Supreme Court justices Roberts and Alito.
Also, “borking” may be coming back into vogue, as the Senate prepares to hold confirmation hearings for Elena Kagan, who wrote a now-famous 1995 article labeling recent Supreme Court confirmation hearings “a vapid and hollow charade,” and calling for more rigorous questioning of nominees.
Will Elena Kagan join the Supreme Court, or will she enter the rejected-nominees’ hall of fame? Senate confirmation hearings are slated for June 28. Be sure to take notes.