The Supreme Court of the United States is the highest-ranking judicial body in the United States. Established by Article III of the Constitution, the detailed structure of the court was laid down by the 1st United States Congress in 1789. Congress specified the Court's original and appellate jurisdiction, created 13 judicial districts, and fixed the initial size of the Supreme Court. The number of justices on the Supreme Court changed six times before settling at the present total of nine in 1869.[1] As of June 2022, a total of 116 justices have served on the Supreme Court since 1789.[2] Justices have life tenure, and so they serve until they die in office, resign or retire, or are impeached and removed from office.
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 Of these, 11 nominees were rejected in Senate roll-call votes, 11 were withdrawn by the president, and 15 lapsed at the end of a session of Congress.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]
Washington nominated William Paterson for the Supreme Court on February 27, 1793.[6] The nomination was withdrawn by the President the following day.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]
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 William Smith and John Catron to newly created seats. Both were confirmed, but Smith declined to serve. Later that year, Jackson's successor Martin Van Buren appointed John McKinley to fill the vacancy.[4]
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]
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, James Moore Wayne and John Catron. Johnson had, in April 1866, nominated Henry Stanbery to be an Associate Justice. The following July, however, Congress passed the Judicial Circuits Act of 1866, which provided for a gradual elimination of seats until only seven were left.[15] Due to the reduction of seats, Stanbery's nomination was nullified.[16] 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, ironically, did not happen until Congress restored the size of the court to nine members in 1871.
Grant nominated George Henry Williams to be Chief Justice of the United States in 1873, but he later withdrew from consideration.[19] Prior to withdrawal of consideration, the Senate Judiciary Committee declined to recommend confirmation to the entire Senate.[20] Grant then 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.[21] Grant was successful with his third nomination of Morrison Waite.[4]
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]
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 Samuel Blatchford died in 1893, during the second term of Grover Cleveland.[30] This seat was traditionally held by a New Yorker. Cleveland's first two nominees were not confirmed by the Senate; the nomination of William Hornblower was rejected by the Senate by a vote of 24–30 on January 15, 1894.[4] Cleveland's follow-up nominee Wheeler Hazard Peckham was also rejected by the Senate, 32–41, on February 16, 1894.[4]
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]
President Warren G. Harding nominated Pierce Butler to the Supreme Court in 1922, but the Senate refused to consider his nomination, in part due to Butler's advocacy for railroad interests. However, Harding re-submitted the nomination later in the year, and Butler was confirmed in a 61–8 vote.[22]
On May 7, 1930, Herbert Hoover's nomination of Appellate Judge John J. Parker for the Supreme Court was rejected by a vote of 39–41.[39] Parker was nominated to replace Edward Terry Sanford. The American Federation of Labor opposed Parker for his rulings that were favorable towards yellow dog contracts and the NAACP opposed Parker due to concerns about Parker's racial views.[40] Hoover attempted to appeal to Southern Democratic senators to vote for Parker, who was from North Carolina, but Hoover was unable to win enough Democratic votes to make up for Republican defections.[40] Hoover's second nominee, Owen J. Roberts, was confirmed by the Senate.[4]
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 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]
After the Republicans scuttled Fortas's nomination as Supreme Court Chief Justice, Democrats retaliated by interfering with Nixon's plans to nominate a Southern conservative justice as part of the Republican Party's Southern Strategy.[43] When Abe Fortas resigned in 1969 because of a scandal separate from his Chief Justice bid, Richard Nixon nominated Clement Haynsworth, a Southern jurist. His nomination was rejected by the Senate by a vote of 45–55 on November 21, 1969,[45] due to concerns about Haynsworth's civil rights record and perceived ethical lapses.[22] In response, Nixon nominated G. Harrold Carswell, a Floridian 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.[46] Nixon's third nominee for the Fortas vacancy was Harry Blackmun, who was confirmed by the Senate with no opposition on May 17, 1970.
Nixon was soon faced with two more Supreme Court vacancies when John Harlan and Hugo Black retired in the fall of 1971. 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 12-member committee would find that both were unqualified, Nixon passed over Friday and Lillie,[47] and nominated Lewis Powell and William Rehnquist. Powell was confirmed by an 89–1 vote, and Rehnquist was confirmed 68–26.[4]
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]
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]
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.
Abraham Fortas was an American lawyer and jurist who served as an associate justice of the Supreme Court of the United States from 1965 to 1969. Born and raised in Memphis, Tennessee, Fortas graduated from Rhodes College and Yale Law School. He later became a law professor at Yale Law School and then an advisor for the U.S. Securities and Exchange Commission. Fortas worked at the Department of the Interior under President Franklin D. Roosevelt, and was appointed by President Harry S. Truman to delegations that helped set up the United Nations in 1945.
George Harrold Carswell was a United States circuit judge of the United States Court of Appeals for the Fifth Circuit and a United States district judge of the United States District Court for the Northern District of Florida. He was also an unsuccessful nominee to the United States Supreme Court in 1970.
Clement Furman Haynsworth Jr. was a United States circuit judge of the United States Court of Appeals for the Fourth Circuit. He was also an unsuccessful nominee for the United States Supreme Court in 1969.
The Burger Court was the period in the history of the Supreme Court of the United States from 1969 to 1986, when Warren E. Burger served as Chief Justice of the United States. Burger succeeded Earl Warren as Chief Justice after Warren's retirement, and served as Chief Justice until his retirement, when William Rehnquist was nominated and confirmed as Burger's replacement. The Burger Court is generally considered to be the last liberal court to date. It has been described as a transitional court, due to its transition from having the liberal rulings of the Warren Court to the conservative rulings of the Rehnquist Court.
On July 1, 1987, President Ronald Reagan nominated Judge Robert Bork for Associate Justice of the Supreme Court of the United States, to succeed Lewis F. Powell Jr., who had earlier announced his retirement. At the time of his nomination, Bork was a judge on the United States Court of Appeals for the District of Columbia Circuit, a position to which he had been appointed by President Reagan in 1982.
During President Richard Nixon's presidency, federal judicial appointments played a central role. Nixon appointed four individuals to the Supreme Court of the United States in just over five and a half years.
During President Lyndon B. Johnson's presidency, federal judicial appointments played a central role. Johnson appointed Abe Fortas and Thurgood Marshall to the Supreme Court of the United States in just over five years as president.
Speculation abounded over potential nominations to the Supreme Court of the United States by Ronald Reagan even before his presidency officially began, due to the advanced ages of several justices, and Reagan's own highlighting of Supreme Court nominations as a campaign issue. Reagan had promised "to appoint only those opposed to abortion and the 'judicial activism' of the Warren and Burger Courts". Conversely, some opposed to Reagan argued that he could "appoint as many as five Justices" and would "use the opportunity to stack the Court against women, minorities and social justice".
President Richard Nixon entered office in 1969 with Chief Justice Earl Warren having announced his retirement from the Supreme Court of the United States the previous year. Nixon appointed Warren E. Burger to replace Earl Warren, and during his time in office appointed three other members of the Supreme Court: Associate Justices Harry Blackmun, Lewis F. Powell, and William Rehnquist. Nixon also nominated Clement Haynsworth and G. Harrold Carswell for the vacancy that was ultimately filled by Blackmun, but the nominations were rejected by the United States Senate. Nixon's failed Supreme Court nominations were the first since Herbert Hoover's nomination of John J. Parker was rejected by the Senate.
The nominations made by Lyndon B. Johnson to the Supreme Court of the United States are unusual in that Johnson appeared to have had specific individuals in mind for his appointments and actively sought to engineer vacancies on the Court to place those individuals on the court.
During his twelve years in office, President Franklin D. Roosevelt appointed eight new members of the Supreme Court of the United States: Associate Justices Hugo Black, Stanley F. Reed, Felix Frankfurter, William O. Douglas, Frank Murphy, James F. Byrnes, Robert H. Jackson, and Wiley Blount Rutledge. Additionally, he elevated sitting Justice Harlan F. Stone to chief justice. Roosevelt's nine nominations filled eight seats on the Supreme Court because Byrnes resigned while Roosevelt was still in office. Roosevelt nominated Rutledge to the seat vacated by Byrnes.
During his only term in office, President Herbert Hoover appointed three members of the Supreme Court of the United States: Chief Justice Charles Evans Hughes, and Associate Justices Owen Roberts and Benjamin Cardozo. Additionally, with his failed nomination of John J. Parker, Hoover became the first president since Grover Cleveland to have a Supreme Court nomination rejected by the United States Senate.
During his time in office, President Warren G. Harding appointed four members of the Supreme Court of the United States: Chief Justice William Howard Taft, and Associate Justices George Sutherland, Pierce Butler, and Edward Terry Sanford.
The nomination and confirmation of justices to the Supreme Court of the United States involves several steps, the framework for which is set forth in the United States Constitution. Specifically, Article II, Section 2, Clause 2, provides that the president of the United States nominates a justice and that the United States Senate provides advice and consent before the person is formally appointed to the Court. It also empowers a president to temporarily, under certain circumstances, fill a Supreme Court vacancy by means of a recess appointment. The Constitution does not set any qualifications for service as a justice, thus the president may nominate any individual to serve on the Court.
On March 16, 2016, President Barack Obama nominated Merrick Garland for Associate Justice of the Supreme Court of the United States to succeed Antonin Scalia, who had died one month earlier. At the time of his nomination, Garland was the chief judge of the United States Court of Appeals for the District of Columbia Circuit.
John Rutledge was twice nominated by President George Washington to the Supreme Court of the United States, being nominated and confirmed in 1789 as an associate justice, and being unsuccessfully nominated in 1795 to serve as chief justice.
Wiley Rutledge was nominated to serve as an associate justice of the Supreme Court of the United States by U.S. President Franklin D. Roosevelt on January 11, 1943, after the resignation of James F. Byrnes created a vacancy on the court. Per the Constitution of the United States, Rutledge's nomination was subject to the advice and consent of the United States Senate, which holds the determinant power to confirm or reject nominations to the U.S. Supreme Court. After being favorably reported on by both a subcommittee of the Senate Committee on the Judiciary and the full Judiciary Committee, the nomination was confirmed by the full Senate through a voice vote on February 8, 1943.
Thurgood Marshall was nominated to serve as an associate justice of the Supreme Court of the United States by U.S. President Lyndon B. Johnson on June 13, 1967 to fill the seat being vacated by Tom C. Clark. Per the Constitution of the United States, the nomination was subject to the advice and consent of the United States Senate, which holds the determinant power to confirm or reject nominations to the U.S. Supreme Court. Marshall was confirmed by the U.S. Senate in a 69–11 vote on August 30, 1967, becoming the first African American member of the Court, and the court's first non-white justice.
References
↑ "The Court as an Institution". supremecourt.gov. Washington, D.C.: Supreme Court of the United States. Retrieved August 8, 2018.
1 2 Watson Jr., Richard L. (September 1963). "The Defeat of Judge Parker: A Study in Pressure Groups and Politics". The Mississippi Valley Historical Review. 50 (2): 213–234. doi:10.2307/1902754. JSTOR1902754. S2CID158872255.
1 2 Robenalt, James D. (2015). January 1973: Watergate, Roe v. Wade, Vietnam, and the Month that Changed America Forever. Chicago, Ill.: Chicago Review Press. ISBN978-1-61374-967-8. OCLC906705247
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. ISBN978-0-9634017-4-8.
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