Supreme Court Nominations – Over 200 Years of Controversy
The nomination of Brett Kavanaugh to the Supreme Court is the latest in a long line of confirmation fights. Since the founding of the Court over 200 years ago, more than 160 judges have been nominated to the court. Over 30 of those nominations have not been confirmed.
Creation of the Court
Article III of the United States Constitution established the Supreme Court: “The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.” The Judiciary Act of 1789 set the number of justices at six. Subsequent acts changed the number of justices, with the current number of nine set in 1869.
In December 1795, the Senate rejected President George Washington's nomination of John Rutledge to be Chief Justice of the United States. At the time Rutledge was serving a recess appointment on the court. Rutledge had publicly opposed the controversial Jay Treaty as a sellout to the British. Since the Senate had recently ratified the treaty, his opposition, although more a political than a judicial matter, cost him Senate support which rejected him by a 14 - 10 vote. He became the first Supreme Court nomination to be rejected and the only recess appointment to not receive subsequent confirmation.
In 1801, lame duck President John Adams and his Federalist congressional supporters passed the Judiciary Act of 1801 expanding the number of judges in the lower courts. Adams then made many appointments to these courts with judges sympathetic to the Federalist Party position supporting a powerful central government. These judges became known as the ‘midnight’ judges as Adams was said to be signing appointments up until midnight of his last day in office.
Newly elected anti-Federalist President Jefferson worked to undo some of Adam’s appointments. One of the affected judges sued and the case went to the Supreme Court. In the Court’s then-controversial ‘Marbury vs. Madison’ decision, it ruled that the Court had the power of judicial review, allowing it to overrule laws on constitutional grounds. This landmark decision vested substantial power in the Court.
In 1811, ‘Father of the Constitution’ President James Madison’s nomination to the Supreme Court was rejected by a vote of 24 – 9, the largest rejection vote of any nominee, even though Madison’s party controlled the Senate. The rejection was generally based on two factors: criticism of his nominee’s enforcement of the trade embargoes against France and Great Britain while he served as customs inspector and concern over the nominee’s lack of judicial experience.
In the 1800s, over one-fourth of the nominations were not confirmed. The Senate declined to consider lame-duck nominations made by Presidents John Quincy Adams, Millard Fillmore and Rutherford B. Hayes, maintaining those vacancies for the incoming President to fill. The Senate used the same rationale in 2016 with the Merrick Garland appointment.
John Tyler became President in 1841 after William Harrison died after thirty days in office. The Whig Party expelled Tyler after he vetoed several bills supported by the Whigs. The Whigs controlled Congress and declined to confirm Tyler’s court nominations. Tyler experienced the most rejections of any President. For one vacancy he made six separate nominations before getting a candidate confirmed. He never filled a second vacancy after three failed attempts.
Millard Fillmore became President when Zachary Taylor died in office. He made three nominations for a vacancy, two while a lame duck. The Senate did not vote on any of them.
After the Civil War, Presidents Johnson, Grant, Hayes and Cleveland all had candidates who failed confirmation. One of Grant’s nominations was voted down 33 – 24 apparently because he did not support patronage while the Senate did. It took Grant three nominations to fill another vacancy due to Senate opposition to his initial candidates.
In 1881, the Senate opposed a nomination of Stanley Matthews by President Rutherford B. Hayes to the Court. Senators felt there was cronyism involved as Hayes and the nominee had attended college and served in the infantry together. After the nomination lapsed, President Garfield re-nominated Matthews. His approval by a 24 - 23 vote was the closest confirmation in history.
Grover Cleveland required three nominations to fill a seat on the court. The first two were rejected 30 – 24 and 41 – 32 respectively, due to opposition by a Senator from New York, the nominee’s home state. This is an early version of what is known today as the ‘blue slip’ rule where a judicial nominee requires approval from their home state Senators.
Twentieth and Twenty-First Centuries
From the late 1890s until the 1960s, Supreme Court nominations were generally approved. Controversy started back up with Lyndon Johnson’s 1968 appointment of Associate Justice Abe Fortas to be Chief Justice. Conservatives opposed the appointment due to his liberal positions. And Fortas was involved in some financial scandals which ultimately led to his resignation from the Court.
It took President Nixon three nominations to fill Fortas’s seat on the Court. Clement Haynsworth and Harrold Carswell, both Southerners, were rejected 55-45 and 51-45 respectively. Opposition was based on concerns over Civil Rights and Labor rights. Nixon successfully appointed Harry Blackmun, who eventually wrote the Roe v. Wade abortion opinion.
President Reagan’s 1987 appointment of Robert Bork was voted down 58 – 42. Liberal Civil Rights and women’s groups strongly opposed this appointment. The opposition was so great that a new verb entered the vocabulary – ‘to bork,’ meaning ‘to attack or defeat a nominee or candidate … through an organized campaign of harsh public criticism or vilification.’
The most recent controversies surround Justices Clarence Thomas and Brett Kavanaugh. Both were accused of sexual misconduct and approved by very narrow margins.
The Supreme Court wields significant power. It has been called on to resolve issues that the legislature has either been unwilling or unable to resolve. As a result, 200 years of contentious nomination processes, that started with George Washington, and affecting both parties, are likely to continue well into the future.