This is the fourth and final installment in a Governing series in a historical look at the U.S. Supreme Court to coincide with nominee Ketanji Brown Jackson’s confirmation process, which continues this week before the Senate Judiciary Committee.
President Biden’s nomination of Judge Ketanji Brown Jackson to fill the seat vacated by the retirement of Associate Justice Stephen Breyer seems likely to win confirmation this spring by the U.S. Senate. The vote is set for Monday. She was confirmed 53-44 just a year ago when she was vetted by the Senate for a seat on the U.S. Court of Appeals for the District of Columbia. Still, it is by no means certain that any nominee will be confirmed in this era of political mistrust and rancor. Nominations for the federal bench have become much more politically intense in recent years.
In its 235-year history, 114 men and women (five women, the rest men) have served on the Supreme Court. Thus far 37 individuals nominated by the president of the United States have been denied confirmation. That’s about one in every five. Twenty-five have withdrawn their nominations. Only 12 have been formally rejected by the Senate. The last person formally rejected was Robert Bork in 1987.
More recently, the Republican-majority Senate, led by Kentucky Sen. Mitch McConnell, refused even to hold hearings on Barack Obama’s third nominee, Merrick Garland, in the summer and fall of 2016. Their rationale was that no nominee should be vetted in the last year of a presidential term. The same Republicans managed to overcome that scruple in 2020 when they rushed through the confirmation of Trump nominee Amy Coney Barrett less than two weeks before the presidential election.
As we brace ourselves for this confirmation debate, it is useful to remind ourselves of what causes the Senate to reject a Supreme Court nomination, either formally or by pressuring the president to withdraw the nomination?
There are three basic reasons for Senate rejection: antagonism toward the president; the qualifications of the nominee; and the perceived or real political outlook of the nominee.
Reason One: Antagonism Toward the President
In the case of President John Tyler (served 1841-1845), Senate rejection had little to do with the nominees. Tyler was a replacement president. Like Andrew Johnson, Theodore Roosevelt and Lyndon B. Johnson, he came in through the back door after the incumbent President, William Henry Harrison, died in office just 31 days after his inauguration. Tyler was dubbed “His Accidency” by his detractors. Tyler was a states’ rights Southerner whose views and stubbornness caused his entire Cabinet to resign. He was not only the first vice president to ascend into the presidency on the death of the incumbent but the first president to be threatened with impeachment. Four of the five men Tyler nominated for seats on the Supreme Court were rejected, some several times.
A few years earlier, John Quincy Adams’ 1828 nomination of John J. Crittenden was postponed indefinitely by the Senate, in part because Adams was not regarded as a legitimate president by supporters of Andrew Jackson. Jackson won both the popular vote and the Electoral College vote in the 1824 election, but because he did not win a majority in the Electoral College, the House of Representatives decided the election — in Adams’ favor. When Jackson took power in March 1829, his nominee for the seat, John McLean, was confirmed by the Senate. North Carolina judge John Parker was rejected on May 7, 1930, mostly because he was nominated by President Herbert Hoover, who was widely condemned for his mishandling of the stock market crash of 1929 and the first waves of the Great Depression. Parker was also rejected because he declared that African Americans engaging in American politics would be “a source of evil and danger to both races.”
Reason Two: Qualification and Deportment
President Reagan’s second nominee, Douglas H. Ginsburg (October 1987), withdrew his name after allegations of unethical behavior and marijuana use surfaced. Associate Justice Abe Fortas, appointed by Lyndon Johnson in 1965 and confirmed by the Senate, withdrew his nomination for chief justice in 1968 after his paid off-duty activities and other ethical issues surfaced. Then things grew worse. In May 1969 he was forced to resign from the court altogether when it was revealed that he had accepted an emolument of $20,000 per year for life from a friend and former law client.
For a man of great intellectual acumen, President Richard Nixon proved to be a lousy selector of personnel. In the spring of 1969, he nominated South Carolina Judge Clement Haynsworth of the Fourth Circuit to fill the seat vacated by Abe Fortas. The Senate immediately determined that Haynsworth was too much an unreconstructed Southerner to deserve so important a post. On Nov. 21, 1969, Haynsworth was rejected by a 45-55 vote. It was the first time in 39 years that a president’s nominee was rejected. President Nixon was so angry at the Senate’s rejection (he, like Jefferson, believed the president is entitled to surround himself with people of his choice) that he nominated an even more objectionable Southerner, G. Harrold Carswell, to fill the seat. In 1948, running for Congress, Carswell had declared, “I am a Southerner by ancestry, birth, training, inclination, belief and practice. I believe the segregation of the races is proper and the only practical and correct way of life in our states. I have always so believed, and I shall always so act. I shall be the last to submit to any attempt on the part of anyone to break down and to weaken this firmly established policy of our people.” Although he later distanced himself from these remarks, he frequently called civil rights legislation the “civil wrongs program.” Moreover, as a district and appeals court judge his decisions had been reversed by higher courts 58 percent of the time. He was regarded by members of both political parties as insufficiently qualified for a seat on the high court.
After these humiliating and embittering defeats, Nixon nominated Harry A. Blackmun of the Eighth Circuit to fill Fortis’ seat. Blackmun was confirmed, perhaps by an exhausted Senate, 94-0. Although Nixon had initially sought to appoint a Southern conservative to the court as part of his “Southern Strategy,” Blackman, raised in Minnesota, proved to be one of the most liberal justices of the postwar era. He wrote the decision in Roe v. Wade in 1973.
George W. Bush withdrew his inexplicable nomination of his White House counsel Harriet Miers on Oct. 27, 2005, after senators from both parties expressed their concern that she had no previous judicial experience. The Senate’s misgivings were particularly acute because Miers was to fill the seat vacated by Sandra Day O’Connor, the first female justice and a giant of the court. Bush went on to nominate Samuel Alito for the seat four days later, on Oct. 31, 2005.
Reason Three: Objectionable Political Outlook
Thurgood Marshall became the first African American to sit on the Supreme Court on Aug. 30, 1967. He was nominated by President Lyndon Johnson. Southern senators threatened to filibuster the nomination into the ground, but LBJ was such a masterful politician that he found ways to persuade recalcitrant senators to do the right thing. Opposition to Marshall took two forms, only one of which was publicly articulated: Many senators argued privately (and some publicly) that the country was not ready for an African American justice. Publicly, some senators argued that Marshall was too deeply involved in the civil rights movement to be an objective member of the Supreme Court. (It is worth noting that some of the preliminary Republican responses to Ketanji Brown Jackson are falling out on similar lines).
The most notorious opposition on ideological grounds was the Senate’s 1987 rejection of Reagan nominee Robert Bork. Bork’s rejection still bounces around debates about the nomination process. In fact, that episode has given an often invoked, if somewhat awkward, new word to the English language, in and out of judicial circles: “borked.” Bork, then 60, was blunt and outspoken, both on and off the written page. His extensive paper trail and his unwillingness to moderate his pronouncements made it easy for his detractors to mount a campaign against him. Not merely in speeches, but in print Bork had questioned the whole body of Warren Court opinions, including its landmark decision in Brown v. Board of Education in 1954. That was enough for most liberals to reject his nomination out of hand.
It didn’t help that Bork had wound up on the wrong side of the Watergate crisis. On Oct. 20, 1973, President Nixon ordered his Attorney General Eliot Richardson to fire Watergate Special Prosecutor Archibald Cox. Richardson — Eliot Richardson refused and resigned. Nixon then ordered Deputy Attorney General William Ruckelshaus to do the firing. Ruckelshaus refused and resigned. At that point, the beleaguered Nixon ordered the last man standing, Justice Department Solicitor General Robert Bork, to rid him of the nettlesome Cox. Bork complied with the president’s request. He later said he had intended to resign after carrying out Nixon’s order but was persuaded to stay on for the good of the country. Had he resigned before or after the firing of Cox he might have been confirmed in 1987.
In the end, Bork was denied the seat by a 58-42 vote in the full Senate.
One unfortunate but understandable result of the Bork fiasco has been that presidents now prefer to nominate individuals who have created a light paper trail, or whose writings and speeches are innocuous. Author David Yalof wrote that after Bork’s rejection, nominees practiced being studiously evasive. “You don’t answer questions directly. You hide behind language.” This may make confirmation easier, but it makes it harder for the Senate to make responsible decisions about appointees who are entitled to serve for life once confirmed; and it means that some of the most brilliant potential justices are penalized for amassing a lifetime record of legal or political publications.
In the battered aftermath of the Bork affair, President Reagan’s third nominee, Anthony Kennedy, was unanimously confirmed.
In a tense exchange during Ketanji Brown Jackson’s confirmation hearings, Sen. Lindsey Graham accused the Supreme Court nominee of not meting out harsher punishment in her sentencing decisions in child pornography cases.
It is not clear yet just how rough Jackson’s full confirmation experience will be. She is certainly unlikely to sail through the process with large bipartisan support. That era is over, at least in this period of American political history. Former President Donald Trump recently called Jackson a “radical left zealot.” Sen. Lindsey Graham, who serves on the Judiciary Committee, has said that her nomination means that “the radical Left has won President Biden over yet again,” though Graham was one of three Republicans to vote to confirm her a year ago for the D.C. Court of Appeals.
Buckle up, America.