Nominees, Rejection Of

Nominees, Rejection Of. From 1789 to mid‐1992 the U.S. Senate has rejected 28 of the 143 nominees forwarded to it by presidents. (Eleven were not rejected per se but were simply not acted upon.) Even counting the Senate's refusal to vote on President Lyndon B. Johnson's suggested promotion of Associate Justice Abe Fortas to chief justice in 1968, only five have been formally voted down in the twentieth century: Chief Judge John J. Parker of the U.S. Fourth Circuit Court of Appeals (Hoover, 1930; by a vote of 39 to 41); Chief Judge Clement F. Haynsworth of the same tribunal as Parker (Nixon, 1969; 45 to 55); Judge G. Harrold Carswell of the U.S. District Court of Florida (Nixon, 1970; 45 to 51); and Judge Robert H. Bork of the U.S. Court of Appeals for the District of Columbia (Reagan, 1987; 42 to 58). Not counted are the 1968 Johnson nomination of Judge Homer Thornberry of the U.S. Court of Appeals for the Fifth Circuit, which was never acted upon because of the failure of the Fortas promotion, and that by President Ronald Reagan of Judge Douglas H. Ginsburg of the U.S. Court of Appeals for the District of Columbia, whose nomination was never formally submitted to the Senate as a result of the instant controversy surrounding him.

An octet of fairly readily identifiable reasons for the Senate's negative actions in the twenty‐eight instances may be listed: (1) opposition to the nominating president, not necessarily the nominee; (2) the nominee's involvement with one or more contentious issues of public policy or, simply, opposition to the nominee's perceived jurisprudential or sociopolitical philosophy (i.e., “politics”); (3) opposition to the record of the incumbent Court, which, rightly or wrongly, the nominee presumably supported; (4) “senatorial courtesy,” closely linked to the consultative nominating process; (5) a nominee's perceived “political unreliability” on the part of the party in power; (6) the evident lack of qualification or limited ability of the nominee; (7) concerted, sustained opposition by interest or pressure groups; and (8) fear that the nominee would dramatically alter the Court's jurisprudential lineup. Usually, several of the above reasons, rather than one alone, play a role in a nominee's rejection. A number of specific illustrations may indicate the leading ones.

For example, in 1866 President Andrew Johnson's nomination of his gifted attorney general, Henry Stanbery, failed only because of the Senate's antipathy to Lincoln's successor—indeed, the Senate rejected every nomination by the embattled president. In 1811, James Madison's nomination of Alexander Wolcott fell 9 to 24 because the Federalist senators opposed Wolcott's vigorous enforcement of the embargo and nonintercourse acts when he was U.S. collector of customs in Connecticut. Ulysses S. Grant's nomination of his eminently qualified and popular attorney general, Ebenezer R. Hoar, fell 23 to 44 in 1870, chiefly because of Hoar's consistently “nonpolitical” stance on appointments to public office. President Herbert Hoover's nomination of John J. Parker was defeated by two votes in 1930 largely because he was deemed “unfriendly” to labor and to the burgeoning civil rights movement—both vast oversimplifications. The Nixon nominations of Judges Haynsworth and Carswell failed in 1969 and 1970 because of questions surrounding the former's judicial ethics and the latter's obvious lack of fundamental qualifications. The Senate's refusal to accept closure in order to vote on the LBJ‐sponsored promotion of Abe Fortas to the center chair was at least partly attributed to his “record” on the high bench in criminal justice cases; opposition to the Warren Court's advanced civil libertarianism; and the pending presidential 1968 elections, with Republicans predicting, accurately, that they would control the government as of that fall.

The 1987 rejection of Judge Robert H. Bork, whom the Senate had approved unanimously for the court of appeals just a few years earlier, was based on his widely articulated jurisprudence, the success of well‐organized interest groups' opposition, his prickly performance during his confirmation hearings, the administration's faulty strategy, and the capture of the Senate by the Democrats in 1986. The best contemporary example of rejection because of the demonstrable lack of qualifications for the office of Supreme Court justice is that of the moribund Nixon nomination of Judge Carswell.

Recent rejections have given rise to the belief that the Senate might be inclined to assume an increasingly skeptical attitude vis‐à‐vis presidential nominations to the Supreme Court. In general, however, when the Senate and the presidency are controlled by the same political party, rejections are likely to be the rare exception, barring obvious lack of qualifications or a tainted personal or political background.

See also Nominations, Controversial.

Bibliography

Henry J. Abraham , Justices & Presidents: A Political History of Appointments to the Supreme Court, 3d ed. (1991).

Henry J. Abraham