Unsuccessful nominations to the Supreme Court of the United States
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The
Justices are nominated by the President of the United States and then must be confirmed by the United States Senate, before being officially appointed. A nomination to the Court is considered to be official when the Senate receives a signed nomination letter from the president naming the nominee, which is then entered in the Senate's record. There have been 37 unsuccessful nominations to the Supreme Court of the United States. Of these, 11 nominees were rejected in Senate roll-call votes, 11 were withdrawn by the president, and 15 lapsed at the end of a session of Congress. Six of these unsuccessful nominees were subsequently nominated and confirmed to seats on the Court.[3] Additionally, although confirmed, seven nominees declined office and one died before assuming office.[4]
18th century
George Washington
Among the six original nominees to the Supreme Court, George Washington nominated Robert H. Harrison, who declined to serve.[5] The seat remained empty until the confirmation of James Iredell in 1790.
Washington nominated William Paterson for the Supreme Court on February 27, 1793.[6] The nomination was withdrawn by the President the following day. Washington had realized that since the law establishing the positions within the Supreme Court had been passed during Paterson's term as a Senator (a post he had resigned in November 1790 after being elected Governor of New Jersey) the nomination was a violation of Article I, Section 6 of the Constitution. Washington re-nominated Paterson to the Court on March 4, 1793, after the expiration of what would have been Paterson's term as Senator had he not resigned, and Paterson was confirmed by the Senate.[6]
John Jay resigned as Chief Justice on June 29, 1795, after being elected Governor of New York. The subsequent nomination of John Rutledge as Chief Justice was rejected by a vote of 10–14 on December 15, 1795. Rutledge's strident and vocal opposition to the Jay Treaty may have been the main reason for his rejection. Because he had been a recess appointment, Rutledge served as Chief Justice for one term.[7] Washington nominated Associate Justice William Cushing to replace him as Chief Justice, but Cushing declined the role. Washington then successfully appointed Oliver Ellsworth to serve as the next Chief Justice.[4]
John Adams
After Oliver Ellsworth decided to resign from the position of Chief Justice, President John Adams sought to replace Ellsworth with John Jay, who had been the first Chief Justice. Jay was formally nominated, but turned down the position. Adams then successfully nominated his Secretary of State, John Marshall.[8]
19th century
James Madison
When William Cushing died, James Madison nominated Levi Lincoln Sr. on January 2, 1811. Lincoln declined the nomination.[9] Alexander Wolcott was then nominated, but was rejected by a vote of 9–24 on February 13, 1811.[9] After John Quincy Adams declined a nomination, Madison was finally successful in filling the seat with his appointment of Joseph Story.[4]
John Quincy Adams
John Quincy Adams nominated John J. Crittenden on December 18, 1828. The Senate postponed the vote on his confirmation, by a vote of 23–17, on February 12, 1829. The Senate did not explicitly vote to "postpone indefinitely", but the resolution did have that effect.[10] President Andrew Jackson instead filled the position with John McLean.[4]
Andrew Jackson
Andrew Jackson nominated Roger B. Taney on January 15, 1835, to be an Associate Justice. A resolution was passed by a Senate vote of 24–21 on March 3, 1835, to postpone the nomination indefinitely.[11] Jackson nominated Taney again on December 28, 1835. After the political composition of the Senate changed the next year, Taney was confirmed as Chief Justice March 15, 1836.[11]
In 1837, Jackson nominated
John Tyler
John Tyler experienced extreme difficulty in obtaining approval of his nominees due to his lack of political support in the Senate. Tyler took office in 1841 after the death of Whig President William Henry Harrison. Tyler had been Harrison's running mate in the 1840 election, but Tyler clashed with the Congressional Whigs over issues such as the national bank, and these clashes extended to judicial nominees.[12]
John Canfield Spencer was nominated on January 9, 1844, and his nomination was defeated by a vote of 21–26 on January 31, 1844. Reuben H. Walworth was nominated on March 13, 1844, and a resolution to table the nomination passed on a 27–20 vote on June 15, 1844. The nomination was withdrawn from the Senate on June 17, 1844. Edward King was nominated on June 5, 1844. A resolution to table the nomination passed by a vote of 29–18 on June 15, 1844. No other action was taken on this nomination.[12]
The same day that Walworth's nomination was withdrawn, Spencer was re-submitted, but there is no record of debate and a letter from the President withdrawing the nomination was received on the same day. Walworth was then re-nominated later that same day, but the motion to act on the nomination in the Senate was objected to, and no further action was taken.[12]
Walworth and King were re-nominated on December 10, 1844, but both nominations were tabled on January 21, 1845. Walworth's nomination was withdrawn on February 6, 1845, and King's two days later. John M. Read was nominated on February 8, 1845, and there was a motion to consider the nomination in the Senate on January 21, 1845, but the motion was unsuccessful and no other action was taken.[12] On February 14, 1845, the Senate voted to confirm Samuel Nelson.[4]
James K. Polk
After
Millard Fillmore
Millard Fillmore, the last member of the Whig Party to serve as president, made three nominations to replace John McKinley, nominating Edward A. Bradford, George Edmund Badger, and William C. Micou, but the Senate, controlled by the Democratic Party, did not take action on any of the nominees. Democratic President Franklin Pierce filled the vacancy with John Archibald Campbell.[4]
James Buchanan
Andrew Johnson
Andrew Johnson took office after the death of Republican Abraham Lincoln in 1865. Johnson, a former Democrat, had been Lincoln's running mate on the National Union ticket of 1864, but Johnson disagreed with Congressional Republicans on several issues, including judicial nominees.
Two justices died in office during Johnson's administration,
Ulysses S. Grant
Grant also nominated
Grant nominated
Rutherford B. Hayes
Early in 1881, President Rutherford B. Hayes nominated Thomas Stanley Matthews for the position of Associate Justice. Matthews was a controversial nominee due to his close ties to the railroad industry,[22] and as the nomination came near the end of Hayes's term, the Senate did not act on it. However, upon succeeding Hayes, incoming President James A. Garfield (who, like Hayes, was a Republican) renominated Matthews, and the Senate confirmed him by a vote of 24 to 23, the narrowest confirmation for a successful U.S. Supreme Court nominee in history. He served on the Court until his death in 1889.[23][24]
Chester A. Arthur
In 1882, Chester A. Arthur nominated Roscoe Conkling to serve as an Associate Justice after Ward Hunt resigned.[25] Conkling was confirmed,[26] and then declined the position.[27]
After Conkling declined, Arthur nominated George F. Edmunds, who twice declined to serve.[28] Arthur then nominated Samuel Blatchford, who was confirmed and accepted.[29]
Grover Cleveland
Associate Justice
By the tradition of Senatorial courtesy, other Senators generally deferred to a nominee's home state senators when evaluating a presidential nomination.[31] The Senators from New York were Edward Murphy Jr. and David B. Hill;[32] Hill objected to Cleveland's nominations, and most other Senators supported Hill.[33] Hill was a rival of Cleveland's who had lost the Democratic nomination for President to him in 1892.[34]
Cleveland finally overcame Hill's opposition by nominating Edward Douglass White of Louisiana.[35] White was a sitting Senator, and Senatorial courtesy dictated that the Senate not reject one of its own.[36] White's nomination was approved; he served as an Associate Justice until 1910,[37] and as Chief Justice until his death in 1921.[38]
20th century
Warren Harding
President
Herbert Hoover
On May 7, 1930,
Dwight D. Eisenhower
President Dwight D. Eisenhower nominated John Marshall Harlan II in 1954, but his nomination was not reported out of the judiciary committee, in part due to opposition to his purported "ultra-liberal" views. Eisenhower re-nominated Harlan in 1955, and the Senate confirmed him in a 71–11 vote.[22]
Lyndon B. Johnson
Lyndon B. Johnson nominated Abe Fortas, then an associate justice, for Chief Justice. Fortas would have succeeded Earl Warren, who had decided to retire. Controversy ensued regarding Fortas's extrajudicial activities, and at Fortas's request, Johnson withdrew the nomination prior to a vote of the full Senate.[41] Fortas's nomination was also opposed by many senators who opposed the rulings of the Warren Court, especially Miranda v. Arizona.[22][42] Fortas's nomination was also injured after Johnson withdrew from the 1968 presidential election, leaving himself as a lame duck.[43] President Nixon instead filled the vacancy caused by Warren's retirement with Warren Burger.
When Johnson nominated Fortas, he also nominated Homer Thornberry to fill Fortas' seat. Since Fortas withdrew his name from the Chief Justice nomination, but maintained his seat as an Associate Justice (with Earl Warren continuing as Chief Justice), the nomination of Thornberry was void. He was never voted on by the Senate.[44]
Richard Nixon
After the Republicans scuttled Fortas's nomination as Supreme Court Chief Justice, Democrats retaliated by interfering with Nixon's plans to nominate a
Nixon was soon faced with two more Supreme Court vacancies when
Ronald Reagan
When
Reagan then announced his intention to nominate Douglas H. Ginsburg to the court. Before Ginsburg could be officially nominated, he withdrew himself from consideration under heavy pressure after revealing that he had smoked marijuana with his students while a professor at Harvard Law School.[49] Reagan then nominated Anthony Kennedy, who was confirmed by a Senate vote of 97–0.[4]
21st century
George W. Bush
In October 2005, George W. Bush nominated Harriet Miers, a corporate attorney from Texas who had served as Bush's private attorney and as White House Counsel, as an Associate Justice to replace retiring Justice Sandra Day O'Connor. Miers was widely perceived as unqualified for the position, and it later emerged that she had allowed her law license to lapse for a time. The nomination was immediately attacked by politicians and commentators from across the political spectrum. At Miers's request, Bush withdrew the nomination on October 27, ostensibly to avoid violating executive privilege by disclosing details of her work at the White House.[50] Four days later, Bush nominated Samuel Alito to the seat. Alito was confirmed by a vote of 58–42 on January 31, 2006.[4]
Barack Obama
In February 2016, Associate Justice Antonin Scalia died. The following month, President Barack Obama nominated D.C. Circuit Judge Merrick Garland to replace Scalia. However, the Senate was controlled by the Republican Party, which argued that the next president should instead appoint Scalia's successor.[51] Senate Republicans refused to hold hearings on Garland, and Garland's nomination remained before the Senate longer than any other Supreme Court nomination.[52] Garland's nomination expired with the end of the 114th United States Congress.[53]
The vacancy caused by Scalia's death remained unfilled for 422 days, making it just the second Supreme Court vacancy since the end of the American Civil War to remain unfilled for more than one year.[54] On January 31, 2017, President Donald Trump, who succeeded Obama, nominated federal appeals court Judge Neil Gorsuch to replace Justice Scalia. Justice Gorsuch was sworn in on April 10, 2017, after being confirmed by a vote of 54–45.
List of unsuccessful nominations
Following is a list of the 37 unsuccessful Supreme Court nominations.
Unsuccessful Supreme Court nominations[3][4] | |||
---|---|---|---|
Nominee | Year | Nominated by | Outcome |
William Paterson[A] | 1793 | Washington | Withdrawn |
John Rutledge[B] | 1795 | Washington | Rejected, 10–14 |
Alexander Wolcott | 1811 | Madison | Rejected, 9–24 |
John J. Crittenden | 1828 | J. Q. Adams | Lapsed |
Roger B. Taney[A] | 1835 | Jackson | Lapsed |
John C. Spencer |
1844 | Tyler | Rejected, 21–26 |
Reuben H. Walworth | 1844 | Tyler | Withdrawn |
Edward King | 1844 | Tyler | Lapsed |
John C. Spencer |
1844 | Tyler | Withdrawn |
Reuben H. Walworth | 1844 | Tyler | Lapsed |
Reuben H. Walworth | 1844 | Tyler | Withdrawn |
Edward King | 1844 | Tyler | Withdrawn |
John M. Read | 1845 | Tyler | Lapsed |
George W. Woodward |
1845 | Polk | Rejected, 20–29 |
Edward A. Bradford | 1852 | Fillmore | Lapsed |
George E. Badger |
1853 | Fillmore | Lapsed |
William C. Micou | 1853 | Fillmore | Lapsed |
Jeremiah S. Black | 1861 | Buchanan | Lapsed |
Henry Stanbery | 1866 | A. Johnson | Lapsed |
Ebenezer R. Hoar | 1869 | Grant | Rejected, 24–33 |
George Henry Williams | 1873 | Grant | Withdrawn |
Caleb Cushing | 1874 | Grant | Withdrawn |
Stanley Matthews[A] | 1881 | Hayes | Lapsed |
William B. Hornblower | 1893 | Cleveland | Lapsed |
William B. Hornblower | 1893 | Cleveland | Rejected, 24–30 |
Wheeler Hazard Peckham | 1894 | Cleveland | Rejected, 32–41 |
Pierce Butler[A] |
1922 | Harding | Lapsed |
John J. Parker | 1930 | Hoover | Rejected, 39–41 |
John Marshall Harlan II[A] | 1954 | Eisenhower | Lapsed |
Abe Fortas[C] | 1968 | L. B. Johnson | Withdrawn |
Homer Thornberry | 1968 | L. B. Johnson | Withdrawn |
Clement Haynsworth | 1969 | Nixon | Rejected, 45–55 |
G. Harrold Carswell | 1970 | Nixon | Rejected, 45–51 |
Robert Bork | 1987 | Reagan | Rejected, 42–58 |
John Roberts[A] | 2005 | G. W. Bush | Withdrawn |
Harriet Miers | 2005 | G. W. Bush | Withdrawn |
Merrick Garland | 2016 | Obama | Lapsed |
Following is a list of the eight confirmed supreme Court nominees who never served on the Court.
Confirmed Supreme Court nominees who did not serve[3][4] | |||
---|---|---|---|
Nominee | Year | Nominated by | Reason |
Robert H. Harrison | 1789 | Washington | Declined |
William Cushing[C] | 1796 | Washington | Declined |
John Jay | 1800 | J. Adams | Declined |
Levi Lincoln Sr. | 1811 | Madison | Declined |
John Quincy Adams | 1811 | Madison | Declined |
William Smith |
1837 | Jackson | Declined |
Edwin Stanton | 1869 | Grant | Died |
Roscoe Conkling | 1882 | Arthur | Declined |
Notes
See also
- List of nominations to the Supreme Court of the United States
- Thurmond rule
- Unsuccessful nominations to the Cabinet of the United States
References
- ^ "The Court as an Institution". supremecourt.gov. Washington, D.C.: Supreme Court of the United States. Retrieved August 8, 2018.
- ^ "Frequently Asked Questions on Justices - Supreme Court of the United States".
- ^ a b c McMillion, Barry J. (March 8, 2022). Supreme Court Nominations, 1789 to 2020: Actions by the Senate, the Judiciary Committee, and the President (PDF) (Report). Washington, D.C.: Congressional Research Service. Retrieved March 28, 2022.
- ^ a b c d e f g h i j k l m n o p q r s t "Supreme Court Nominations (1789-Present)". senate.gov. Washington, D.C.: United States Senate. Retrieved March 28, 2022.
- ^ Fore, Samuel K. "Robert Hanson Harrison". Mount Vernon, Virginia: Mount Vernon Ladies' Association. Retrieved August 8, 2018.
- ^ ISBN 978-1-4381-0817-9.
- ISBN 978-1-136-74747-2.
- ^ Schwartz, Bernard (1993). A History of the Supreme Court. New York: Oxford University Press. pp. 32–34.
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- ^ ISBN 978-1-61069-395-0.
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- ^ "36th Congress Senate Vote 515 (1861)". voteview.com. Retrieved March 26, 2022.
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- ^ ISBN 978-0-8093-1965-7.
- ^ Members of the Supreme Court of the United States, Official list on SCOTUS website
- ^ Department of Justice biography: George Henry Williams
- ^ Corning, Howard M. Dictionary of Oregon History. Binfords & Mort Publishing, 1956.
- ^ United States Congressional serial set. US Government Printing Office. 1895. pp. 259–.
- ^ a b c d e Hogue, Henry B. "Supreme Court Nominations Not Confirmed, 1789-August 2010" (PDF). Congressional Research Service. Federation of American Scientists. Retrieved March 22, 2016.
- United States Court of Appeals.
- ISBN 978-1-4381-0817-9.
- ^ "President Arthur has appointed ex-Senator Roscoe Conkling to be an Associate Justice of the Supreme Court". Donaldsonville Chief. Donaldsonville, LA. February 25, 1882. p. 2.
- ^ "The Senate has confirmed the following nominations". Valley Falls New Era. Valley Falls, KS. March 11, 1882. p. 2.
- ^ "Blatchford Nominated: Mr. Conkling's Letter". Topeka Daily Capital. Topeka, KS. March 14, 1882. p. 1.
- ^ "News by Telegraph: George F. Edmunds Letter of Refusal; Edmunds' Second Refusal". Las Vegas Gazette. Las Vegas, NM. March 14, 1882. p. 1.
- ^ "Judge Samuel Blatchford: The New Justice of the Supreme Court of the United States". Leavenworth Times. Leavenworth, KS. March 22, 1882. p. 4.
- ^ "Justice Blatchford Dead". Philadelphia Times. Philadelphia, PA. July 8, 1893. p. 4.
- ISBN 978-1-58733-158-9.
- ^ "The Buffalo Evening Times Remarks". Brooklyn Daily Eagle. Brooklyn, NY. January 28, 1894. p. 6.
- ^ "Hornblower is Out; Majority of the Senate Committee Against Confirmation". Dakota Farmers' Leader. Canton, SD. January 12, 1894. p. 2.
- ^ "Cleveland and Stevenson: The Ticket Nominated by the National Democratic Convention at Chicago". Weekly Star. Plymouth, PA. June 30, 1892. p. 6.
- ^ "Justice White: Cleveland Springs a Surprise". San Francisco Call. San Francisco, CA. February 20, 1894. p. 1.
- ISBN 978-1-57003-309-4.
- ^ "Today Took Office: Edward Douglass White is now Chief Justice". Evening Telegram. Garden City, KS. December 19, 1910. p. 4.
- ^ "Chief Justice Dead; Served 21 Years on Supreme Bench". Evening News Journal. Wilmington, DE. May 19, 1921. p. 1.
- ISBN 978-0-253-32585-3.
- ^ S2CID 158872255.
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- ISBN 978-0-8093-2204-6.
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- ^ "Where Republican Senators Stand on the Supreme Court Nomination", The New York Times, March 29, 2016, retrieved March 31, 2016
- ^ Hurley, Lawrence (July 19, 2016). "Supreme Court nominee out in cold as election heats up". Reuters. Retrieved July 19, 2016.
- ^ Jess Bravin, President Obama's Supreme Court Nomination of Merrick Garland Expires, Wall Street Journal (January 3, 2017).
- ^ DeSilver, Drew (February 26, 2017). "Long Supreme Court vacancies used to be more common". Gallup. Retrieved March 20, 2017.
Further reading
- Supreme Court Nominations Not Confirmed, 1789–August 2010, Congressional Research Service (RL31171).
- Jacobstein, J. Myron; Mersky, Roy M. (1993). The Rejected: Sketches of the 26 Men Nominated for the Supreme Court but Not Confirmed by the Senate. Toucan Valley. ISBN 978-0-9634017-4-8.