Unsuccessful nominations to the Supreme Court of the United States

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Justices of the Supreme Court of the United States are nominated by the President and are then confirmed by the Senate. Presidential administrations are listed with any unsuccessful Supreme Court nominees—that is, individuals who were nominated and who either declined their own nomination, failed the confirmation vote in the Senate, or whose nomination was withdrawn by the president.

As of 2010, 151 people have been nominated to the U.S. Supreme Court. Twenty-nine nominations (which includes one promotion) have been unsuccessful on at least the first try. Of those 29:

• 12 were fully considered and formally rejected by the Senate.
• 7 (including a nomination of an Associate Justice for Chief Justice) were withdrawn by the President before a formal consideration could be taken by the Senate.
  • One of these nominations was withdrawn because of the Ineligibility Clause, but was confirmed after its applicability was no longer an issue.
• 5 had no action taken on them.
  • One of these was because of a change in the Presidency, but the nomination was resubmitted by the incoming President and confirmed.
• 3 had formal votes on the nominations were postponed.
  • One of these nominations was reconsidered after a change in Senate composition and confirmed.
• 2 had nominations nullified by other circumstances without being formally considered.

George Washington

George Washington nominated William Paterson for the Supreme Court on February 27, 1793. The nomination was withdrawn by the President the following day.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 current term as a Senator (a post he had resigned in November, 1790 after being elected Governor) 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 his term as Senator had expired.

The nomination of John Rutledge as Chief Justice was rejected by a vote of 10–14 on Dec 15, 1795. Rutledge's strident 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.

James Madison

When William Cushing died, Madison nominated Levi Lincoln, Sr. who declined the nomination.

Alexander Wolcott was then nominated, but was rejected by a vote of 9–24 on Feb 13, 1811.

John Quincy Adams

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.

Andrew Jackson

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. Later, after the political composition of the Senate changed, Taney was confirmed as Chief Justice.

John Tyler

John Tyler experienced difficulty in obtaining approval of his nominees due to his lack of political support in the Senate.

John C. Spencer was nominated on Jan 9, 1844 and his nomination was defeated by a vote of 21–26 on Jan 31, 1844. Reuben H. Walworth was nominated on Mar 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 Jun 17, 1844. Edward King was nominated on Jun 5, 1844. A resolution to table the nomination passed by a vote of 29–18 on Jun 15, 1844. No other action was taken on this nomination.

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.

Walworth and King were re-nominated on Dec 10, 1844, but both nominations were tabled on Jan 21, 1845. Walworth's nomination was withdrawn on Feb 6, 1845, and King's two days later. John M. Read was nominated on Feb 8, 1845 and there was a motion to consider the nomination in the Senate on Jan 21, 1845, but the motion was unsuccessful and no other action was taken.

James K. Polk

After Henry Baldwin's death, Polk nominated James Buchanan, who declined the nomination.

Polk also nominated George W. Woodward to replace Henry Baldwin in 1845. The Senate rejected him by a vote of 20–29.

James Buchanan

Buchanan nominated Jeremiah S. Black to the court in 1861. The Senate voted 25–26 against confirming him.

Andrew Johnson

Two justices died in office during Johnson's administration, James Moore Wayne and John Catron. The United States Congress, however, passed the Judicial Circuits Act of 1866, which provided for a gradual elimination of seats until only seven were left. Chief Justice Salmon P. Chase had urged for this reduction in the hopes that it would result in an increase of the justices' salaries, which however did not happen until Congress restored the size of the court to nine members in 1871. Johnson had nominated Henry Stanbery to be an Associate Justice, but due to the reduction of seats this nomination was nullified.

Ulysses S. Grant

Ulysses S. Grant nominated Ebenezer R. Hoar to a new seat on the court. The Senate rejected this nomination by a vote of 24–33.

Grant also nominated Edwin M. Stanton, former Attorney General and Secretary of War to the court. The nomination was eventually confirmed, but Stanton died before he was commissioned.^[1]

Grant nominated George Henry Williams to be Chief Justice of the United States in 1873, but he later withdrew from consideration.^[2] Prior to withdrawal of consideration, the Senate Judiciary Committee declined to recommend confirmation to the entire Senate.^[3]

Grant nominated Caleb Cushing for Chief Justice on January 9, 1874, but despite Cushing's great learning and eminence at the bar, his anti-war record and the feeling of distrust experienced by many members of the U.S. Senate on account of his inconsistency, aroused such vigorous opposition that his nomination was withdrawn on January 13, 1874.^{[citation needed]}

Rutherford B. Hayes

Early in 1881, President Rutherford B. Hayes nominated Thomas Stanley Matthews for a position as an Associate Justice on the U.S. Supreme Court. Matthews was a controversial nominee, 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 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.^[4]

Grover Cleveland

In Grover Cleveland's second term, Associate Justice Samuel Blatchford died. This seat was traditionally held by a New Yorker. By the long tradition of Senatorial courtesy, other Senators deferred to the nominee's home state senator when evaluating his nomination. The Senator from New York at the time was David B. Hill, a political rival of Cleveland's. Hill had lost the Democratic nomination for the President to Cleveland in 1892. Cleveland's first two nominees were not confirmed by the Senate. The nomination of William Hornblower from New York was rejected by the Senate by a vote of 24–30 on January 15, 1894. Cleveland's follow-up nominee Wheeler Hazard Peckham, another New Yorker, was also rejected by the Senate, 32–41, on February 16, 1894. Cleveland finally got around Hill by nominating a sitting Senator, Edward Douglass White of Louisiana, to the court. His nomination was approved.

Herbert Hoover

On May 7, 1930, Herbert Hoover's nomination of John J. Parker for the Supreme Court was rejected by a vote of 39–41.

Lyndon B. Johnson

Johnson nominated Abe Fortas, then an associate justice, for Chief Justice. Controversy ensued regarding Fortas's extrajudicial activities, and at Fortas's request, Johnson withdrew the nomination prior to a vote of the full Senate. Earl Warren continued to serve as Chief Justice through the 1968 election. The succeeding President, Nixon, nominated Warren Burger, who was promptly confirmed.

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.

Richard Nixon

Main article: Richard Nixon Supreme Court candidates

When Abe Fortas resigned in 1969 because of a scandal separate from his Chief Justice bid, Nixon nominated Clement Haynsworth, a Southern jurist. His nomination was rejected by the Senate by a vote of 45–55 on November 21, 1969.

In response, Nixon nominated G. Harrold Carswell, a Southerner with a history of supporting segregation and opposing women's rights. The Senate rejected his nomination 45 to 51 on April 8, 1970 following much pressure from the Civil Rights and Feminist Movements and impassioned testimony from Betty Friedan and others.^[5]

Nixon finally nominated Harry Blackmun for the Fortas vacancy, and Blackmun was confirmed by the Senate with no opposition on 17 May 1970.

Nixon was soon faced with two more Supreme Court vacancies when John Harlan and Hugo Black retired. Nixon considered nominating Arkansas lawyer Hershel Friday and California intermediate appellate judge Mildred Lillie to the high court. By tradition at the time, potential Supreme Court nominees were first disclosed to the American Bar Association's standing committee on the federal judiciary. When it became apparent that this twelve member committee would find that both were unqualified, Nixon passed over Friday and Lillie for Lewis Powell and William Rehnquist. Powell was confirmed by an 89-1 vote, and Rehnquist was confirmed 68-22.

Ronald Reagan

Main article: Robert Bork Supreme Court nomination

When Lewis Powell retired in July 1987, Reagan nominated Robert Bork. Bork was a member of the Court of Appeals for the District of Columbia at the time and known as a proponent of constitutional originalism. Bork lost confirmation by a Senate vote of 42 to 58, largely due to Bork's controversial opinions on constitutional issues and his role in the Nixon Saturday Night Massacre.

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. Reagan then nominated Anthony Kennedy, who was confirmed by a Senate vote of 97–0.

George W. Bush

Main article: Harriet Miers Supreme Court nomination

Bush nominated John Roberts as an Associate Justice to replace retiring Justice Sandra Day O'Connor. Following the death of Chief Justice William Rehnquist on September 3, 2005, this nomination was withdrawn and a new nomination, of Roberts as Chief Justice, was made. He was confirmed by the Senate by a vote of 78 to 22.

There was still an appointment to be made for a replacement for Sandra Day O'Connor, and on October 3, 2005 Bush nominated Harriet Miers, a corporate attorney from Texas who had served as Bush's private attorney and as White House Counsel. 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' request, Bush withdrew her nomination on October 27, ostensibly to avoid violating executive privilege by disclosing details of her work at the White House. Four days later, Bush nominated Samuel Alito to the seat. Alito was confirmed by a vote of 58–42 on January 31, 2006.

Table

Failed Nominations to the Supreme Court of the United States

Nominee	Year	Nominated by	Outcome
William Paterson	1793	Washington	Withdrawn*
John Rutledge	1795	Washington	Rejected, 10-14
Alexander Wolcott	1811	Madison	Rejected, 9-24
John J. Crittenden	1828	J.Q. Adams	Postponed**
Roger B. Taney	1835	Jackson	Postponed*
John C. Spencer	1844	Tyler	Rejected, 21-26†
Reuben H. Walworth	1844	Tyler	Withdrawn**†
Edward King	1845	Tyler	Withdrawn**†
John M. Read	1845	Tyler	No Action
George W. Woodward	1845	Polk	Rejected, 20-29
Edward A. Bradford	1852	Fillmore	No Action
George E. Badger	1853	Fillmore	Postponed***
William C. Micou	1853	Fillmore	No Action
Jeremiah S. Black	1861	Buchanan	Rejected, 25-26
Henry Stanberry	1866	A. Johnson	Nullified‡
Ebenezer R. Hoar	1869	Grant	Rejected, 24-23
George Henry Williams	1873	Grant	Postponed***
Caleb Cushing	1874	Grant	Withdrawn
Thomas Stanley Matthews	1881	Hayes	No Action*[6]
William B. Hornblower	1893	Cleveland	Rejected, 24-30
Wheeler Hazard Peckham	1894	Cleveland	Rejected, 32-41
John J. Parker	1930	Hoover	Rejected, 39-41
Abe Fortas	1968	L.B. Johnson	Withdrawn††
Homer Thornberry	1968	L.B. Johnson	Nullified†‡
Clement Haynsworth	1969	Nixon	Rejected, 45-55
G. Harrold Carswell	1970	Nixon	Rejected, 45-51
Robert H. Bork	1987	Reagan	Rejected, 42-58
Douglas H. Ginsburg	1987	Reagan	Withdrawn
Harriet Miers	2005	G.W. Bush	Withdrawn
Notes: * Nomination re-submitted (not necessarily by same President) and confirmed. ** Nomination postponed, not formally withdrawn, but no subsequent action taken. *** Nomination postponed, and formally withdrawn. † Nomination withdrawn, and re-submitted a second time. Postponed with no subsequent action. ‡ Nomination voided by the Judicial Circuits Act of 1886 before consideration. †† Nomination of Associate Justice for Chief Justice withdrawn. †‡ Nomination for Associate Justice voided by withdrawal of Fortas' nomination.

References

1. ^ Members of the Supreme Court of the United States, Official list on SCOTUS website
2. ^ Department of Justice biography: George Henry Williams
3. ^ Corning, Howard M. Dictionary of Oregon History. Binfords & Mort Publishing, 1956.
4. ^ Stanley Matthews biography at Sixth Circuit United States Court of Appeals.
5. ^ http://gos.sbc.edu/f/friedan.html
6. ^ Resubmitted by President Garfield after Hayes' term expired. Confirmed by the United States Senate.

Further reading

• Table of Supreme Court Nominations, from the Senate Judicial Committee
• Supreme Court Nominations Not Confirmed, 1789-2004
• Supreme Court Official Nominations