The Supreme Court

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Rejected nominations are a commonplace in the history of the Court. Since 1789 thirty-four appointments to the high bench have failed to take effect, usually for one of three reasons: the Senate refused confirmation, the President withdrew the nominee’s name in the face of certain Senate refusal, or the nominee himself declined to serve. Placed against a total of 138 nominations, this works out to an astonishing rejection rate of about I in 4, or 24 per cent of all Supreme Court appointments.

Despite assurances they would be confirmed, seven of the nominees simply refused to serve, all of them liefore 1883 and five of them in the first quarter century of the Court’s existence. The reasons vary for each man, of course, but generally the refusals fall into two categories. Some merely found the work of the Court not to their liking because it was too arduous, or not challenging enough, or lacking in prestige. John Jay, for example, resigned as Chief Justice in 1795 to become the governor of New York. When President John Adams offered to reappoint him to the federal post in 1801, Jay turned it down because he did not want to ride the circuit—that is, to travel through the country to hear appeals from the trial courts, as justices of the Supreme Court were required to do until the creation of the courts of appeals in 1801. On the other hand, John Quincy Adams refused appointment as an associate justice in 1811 because he thought his legal experience did not qualify him for the position. In 1882 Roscoe Conkling, the last of the seven, declined to serve as Chief Justice for the same reason.

Twenty-seven nominations from fifteen Presidents failed to secure Senate confirmation. Five of these rejections occurred in this century, four of them in the last decade.

  • • Eleven of the twenty-seven lost on direct votes by the full Senate.
  • • Four were unconfirmed by virtue of Senate postponement—analogous here to the President’s pocket veto. For the appointment to be reconsidered, it would have had to be reintroduced in the next session of the Senate.
  • • Six were unconfirmed because the President withdrew the nomination when it became apparent that the Senate would vote to reject.
  • • Another six were unconfirmed because no action was taken by the Senate, usually because the nomination was tied to another. For example, when the Senate threat to reject forced Lyndon Johnson to withdraw his appointment of Abe Fortas as Chief Justice in 1968, the Senate took no action on Homer Thornberry, who was to have been appointed to succeed Fortas as an associate justice.

What lies behind these twenty-seven rejections is a number of complicated, discrete, and long-forgotten political differences between the President and the Senate. At issue is the appointive power in Article u of the Constitution. The Presidents generally have held that the power is exclusively theirs—that in effect the Senate has no choice but to approve any appointment that is lawfully made in the absence of any morally damaging evidence against the nominee. The Senate, on the other hand, has maintained that the “Advice and Consent” clause establishes it as a coequal with the President and gives it the final authority to approve or disapprove the President’s choice.

What led the Senate to block the appointments of these twenty-seven men, including four Chief justices, is not easily summarized. Undoubtedly some of the rejections proceeded from the conviction that the President’s nominee was not fit for the Court—a prejudice that sometimes can be overcome: in 1887 the Senate divided over the appointment of Lucius Quintus Cincinnatus Lamar, a former senator from Mississippi, who had served in the Confederate army. A sixty-two-year-old widower, Lamar was criticized severely for his relationship with a young woman in her twenties, who, as it happened, had been accused of arson. A sufficient number of senators took the broadminded position that Lamar was as innocent as he claimed to be, and in the end his appointment was confirmed by a vote of 32 to 28.

More often than not, however, the Senate’s refusal to confirm has been nothing less than raw politics and as such forms a rather special chapter in the continuing struggle between the President and Congress for power. John Rutledge, for example, was denied the Chief Justice’s seat in 1795 as much because he had openly opposed the Jay Treaty with England as because there were well-founded rumors that he had become mentally deranged. Since the treaty was a pet project of the Federalists and Rutledge had broken party ranks with his denunciation of it, some Federalist senators, at least, voted to reject as a form of punishment.

Similarly, Roger B. Taney, who became Chief Justice in 1836 on the death of John Marshall, was denied a seat as associate justice in 1835 because of Senate anger at Andrew Jackson’s assault on the Bank of the United States. Because Taney, who was otherwise qualified for the Court, had accepted the task of removing deposits from the bank, the Senate voted to postpone his initial appointment. Emotions had cooled somewhat the following year, for his appointment as Chief Justice passed easily by a vote of 29 to 15.