In the 227-year history of the Supreme Court, about 80% of nominees have been confirmed. But the road to confirmation can be rocky, and the reasons for failure are varied. Here’s my take on some of the most intriguing stories in the annals of unsuccessful Supreme Court nominations. [A complete report on Supreme Court nominees–both winners and losers– is available at  Congressional Research Service.]

The numbers [some of them]

• Individuals nominated to U.S. Supreme Court since 1789: 151
• Nominees not confirmed by Senate: 36
• Nominees rejected, but re-nominated later and confirmed: 6
• Nominees confirmed, but declining to serve: 7
• Nominees submitted more than once, but not confirmed: 6

The first to fail

America’s first unsuccessful Supreme Court nomination occurred in 1789. George Washington nominated William Paterson, but withdrew the nomination one day later, when he realized that he was violating the almost-still-wet U.S. Constitution by appointing a sitting US Senator. The law creating the Supreme Court barred anyone from serving who was in office when the law was enacted. Washington’s workaround was to wait until a few days later, when Paterson’s elected term ended, and a new Congress went into session. Paterson was then immediately confirmed.

Most rejections for a President

The U.S. President with the highest tally of rejected Supreme Court nominees was John Tyler. He had the opportunity to fill two Supreme Court vacancies. In the final 15 months of his presidency, he made 9 nominations, in a convoluted merry-go-round of nominations, withdrawals and re-nominations of the same five men. Only Samuel Nelson, his fifth nominee, was confirmed.

Most notorious Justice who was almost not confirmed

Roger B. Taney was nominated twice by President Andrew Jackson. Taney’s first nomination, to Associate Justice, was postponed indefinitely by the Senate. During the next Congress, he was nominated and confirmed as Chief Justice, and he went on to author the Dred Scott decision, which upheld the legality of slavery.

A victim of downsizing

On April 16, 1866, President Andrew Johnson nominated Henry Stanbery to replace a justice who had  died the previous May. By the time Stanbery was nominated, however, the House of Representatives had passed a bill decreasing the number of associate justices in the Supreme Court from eight to six. The bill effectively eliminated the vacancy that Stanbery would have filled. Historians speculate that the downsizing was a calculated move by a Republican Congress to prevent Democrat Johnson from shaping the court. Interestingly, within two months of the inauguration of Republican President Ulysses S. Grant, Congress passed a law reinstating the eight-man Associate Justice bench.

Lame-duck nominees

If you want to be a Supreme Court justice, avoid being nominated by a president who is about to leave office. Two of President Lyndon Johnson’s nominees—Abe Fortas and Homer Thornberry—learned this lesson the hard way. Both were nominated during Johnson’s final seven months in office [after he announced that he would not seek re-election]. Seeing Johnson as a lame-duck president, nineteen Senators issued a statement indicating that, on this basis, they would oppose any nomination by President Johnson.

The biggest loser

Alexander Woolcott, nominated in 1811 by President James Madison, ran into a buzz saw of opposition because, as a U.S. customs collector, he had strongly enforced a controversial embargo. Senators also questioned his overall qualifications for the Court. The Senate rejected him by a vote of 9-24, the widest margin in Supreme Court history.

Ginsburg the inhaler

Although seemingly well-qualified for the Supreme Court, Douglas Ginsburg—nominated by President Reagan in 1987—never really made it to the starting line. After he was nominated, a report aired on National Public Radio (NPR) revealing that Ginsburg had used marijuana “on a few occasions” during his student days in the 1960s. Senators didn’t like that, but they were especially shocked to hear that he continued to smoke pot after graduation and while he served as a Harvard professor in the 1970s. Ginsburg got the message and withdrew his own nomination.

The rejected nominee whose name became a political verb

Supreme Court nominees who are rejected on the basis of their views—or at least their views as perceived by members of the Senate–are said to have been “borked.” The neologism derives from Robert Bork, nominated by President Ronald Reagan in 1987, and rejected by the Senate after some of the toughest and most substantive confirmation hearings in recent memory. Bork’s defenders say that his conservative views were unfairly portrayed.  Conservative commentators tend to define “borking” as the unfair vilification and defamation of a nominee to block his or her appointment. Liberal commentators take a different view, describing what happened in his confirmation hearings as a rigorous probing of Bork’s legal positions.

But whichever is your preferred definition, subsequent nominees clearly learned a lesson from the original “borking:” to avoid public positions that would enable anyone to “bork” them. To see that lesson in action, watch excerpts of the Senate confirmation hearings of current Supreme Court justices Roberts and Alito.

“Borking” came back into vogues when the Senate was preparing to hold confirmation hearings for Elena Kagan, who wrote a now-famous 1995 article labeling recent Supreme Court confirmation hearings “a vapid and hollow charade,” and calling for more rigorous questioning of nominees. Elena Kagan passed muster and joined the Supreme Court.

With the recent death [Feb. 2016] of Justice Antonin Scalia, the lessons of history are coming back into focus. Will President Obama even get a hearing for his nominee? And will any Obama nominee between now and the 2016 election get the approval of the Republican-led Senate?  This go-round could create a whole new chapter in Supreme Court history.

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It’s somewhat like evolution – eventually a certain species just dies away. Perhaps the specie that former Pennsylvania Senator Arlen Specter was most like was a chameleon. He was a sometime Democrat; a long-time Republican; and a once again Democrat. Through it all, he was a man who took the progressive point of view on almost all public issues.

Arlen Specter passed away on Sunday, October 14, 2012 at the age of 82. His evolutions from Democrat to Republican and back to Democrat truly reflect how our political system has evolved over the past half century.

Specter was born in Kansas but when he was rather young his family moved to Philadelphia. As the New York Times reports, as a young adult, Spector:

…tried to run for Philadelphia district attorney in 1965. As Mr. Specter recalled, the local Democratic chairman told him that the party did not want a “young Tom Dewey as D.A.,” a reference to the former New York governor and racket-buster Thomas E. Dewey, a Republican. So Mr. Specter ran on the Republican ticket as a Democrat. He switched his party registration after he won.

In other words, the Democratic Party machine blocked him from running for office, so he became a progressive Republican. He climbed the political ladder and was elected to the U.S. Senate in 1980. As an attorney with prosecutorial experience, he positioned himself to serve on the Senate Judiciary Committee. During those years that Republicans had a majority, he was chairman of the committee.

Among the areas in which he was progressive were:

• He unabashedly supported Roe v. Wade, the Supreme Court decision that made abortion legal.
• He denounced the Christian right as an extremist “fringe.”
• He was a successful leader in the opposition to Ronald Reagan’s nomination of Robert Bork to the Supreme Court.
• He raised the standards of investigations of Supreme Court nominees.
• He generally took progressive stands on issues of foreign affairs.

From the progressive point of view, there was one issue on which Senator Specter surprisingly joined conservatives. When President George H.W. Bush nominated Clarence Thomas for the Supreme Court, Specter strongly supported him, despite Thomas’ lackluster judicial record and questions about his proclivity towards sexual harrassment. Anita Hill, a co-work of Thomas at the Equal Employment Opportunity Commission, accused Thomas of ongoing harassment. She was called before the Judiciary Committee and was treated with dignity by most members. Specter was relentless in his interrogation of Hill to the point that women’s groups, who had considered Specter an ally, never forgave him for accusing Hill of perjury.

Clarence Thomas was confirmed by the Judiciary Committee and then slid through the entire Senate by a vote of 52-48. It’s quite possible that had Senator Specter opposed his nomination that he never would have made it out of committee.

As the Times reports, “ultimately Mr. Specter expressed contrition, saying he had come to understand why Ms. Hill’s complaint of sexual harassment had “touched a raw nerve among so many women.”

The Clarence Thomas incident did not keep Specter from maintaining his progressive views on most other issues. This naturally angered many Republicans, particularly those in the Tea Party. In 2010, when Specter saw that he would have no chance of winning re-nomination in the Republican Party, he switched back to the Democratic Party. He thought that he would be a shoo-in for the Democrat’s nomination. But he didn’t have the bona fides as a long-term Democrat, so he was ultimately defeated in the Democratic primary.

He began as a Democrat and ended as one. He represented the vanishing breed of Republicans who were rational liberals and who advanced the causes of human rights and social welfare. As he passed away, so has the moderate wing of the Republican Party. We can all learn a great deal from Specter, and perhaps one day in the future, a gentleman of his ilk could once again find a home in the Republican Party. Of course, that will be the day.

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What do Senators on the Judiciary Committee really want to talk about, when they interrogate nominees for the US Supreme Court?  In recent years, we’ve been able to watch the proceedings on TV, or at least get clips of what reporters consider the highlights. But before C-SPAN and YouTube, many hearings took place out of public view. So, finding a summary of what’s been going on in that committee room for the past 70+ years is an information bonanza. And that’s exactly what Good has made available: a bubble graph that visually represents the topics explored by the Senate Judiciary Committee and the percent of hearing time spent on each topic–since 1939!

The graph is part of Good’s “Transparency” project, which it calls “a graphical representation of the data that surrounds us.”

This graph represents  an amazing research effort. The big issues of the times, of course, take up the bulk of hearing time. Among the highlights, you may find some surprising statistics:

Civil rights: 29.8%. [The second graph further breaks down civil-rights questions by sub-topic and by nominee.]

Judicial philosophy: 12.9%

Criminal justice: 8.6%

Government operations: 3.6%

Statutory interpretation: 0.9%

Federalism: 1.3%

But what’s that large, blue arc stretching [conceptually] from 7 o’clock to midnight on the graph? It’s what the graph-makers call “chatter,” and according to their reckoning, it consumes  35% of hearing time. Senate business as usual? A waste of taxpayers’, Senators’ and nominees’ time? You decide.

You may notice that, in the civil-rights breakdown-by-nominee, Chief Justice Earl Warren is not listed. Good’s footnote offers the interesting tidbit that, between 1939 and 1955, some nominees did not appear at their own hearings. Raise your hand if you think that strategy would fly today.

All in all, Good’s graph is quite enlightening. Take a look: [Having trouble reading our stripped-down-to-fit version? See the original here.]

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