200 Years of SCOTUS Nomination Controversy
It looks like the nomination to replace Ruth Bader Ginsburg on the Supreme Court will be the latest in a long line of confirmation fights. Since the founding of the Court over 200 years ago, more than 160 judges have been nominated to the Court. Thirty of those nominations were not confirmed.
Creation of the Court
Article III of the United States Constitution established the Supreme Court: "The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish." The Judiciary Act of 1789 set the number of justices at six. Subsequent acts changed the number of judges, with the current number of nine established in 1869. Since then, President Franklin Roosevelt made the only attempt to increase the number of judges. It was defeated by the Democratic majority Congress in 1937.
In December 1795, the Senate rejected President George Washington's nomination of John Rutledge for Chief Justice of the United States. At the time, Rutledge was serving a recess appointment on the Court. Rutledge had publicly opposed the controversial Jay Treaty as a sellout to the British. Since the Senate had recently ratified the treaty, his opposition, although more a political than a judicial matter, cost him Senate support. He was rejected by a 14-10 vote. He became the first Supreme Court nomination to be rejected and the only recess appointment to not receive subsequent confirmation.
In 1801, lame-duck President John Adams and his Federalist congressional supporters passed the Judiciary Act of 1801, expanding the number of judges in the lower courts. Adams then made many appointments to these courts, with judges sympathetic to the Federalist Party position supporting a powerful central government. These judges became known as the "midnight" judges as Adams was said to be signing appointments up until midnight of his last day in office. In other words, one party (the Federalists) had the presidency and both houses of Congress but lost all three in November. Before the new Congress and president were installed, that party added additional judges and confirmed them. That's power politics!
Newly elected anti-Federalist President Thomas Jefferson worked to undo some of Adams' appointments. One of the affected lower-court judges sued, and the case went to the Supreme Court. In the Court's then-controversial Marbury vs. Madison decision, it ruled that the Court had the power of judicial review, allowing it to overrule laws on constitutional grounds. This landmark decision vested substantial power in the Court.
In 1811, "Father of the Constitution" President James Madison's nomination to the Supreme Court was rejected by a vote of 24–9, even though Madison's party controlled the Senate. This was the largest rejection in history. It was generally based on two factors: criticism of his nominee's enforcement of the trade embargoes against France and Great Britain while he served as customs inspector; and concern over the nominee's lack of judicial experience.
In the 1800s, over one-fourth of the nominations were not confirmed. The Senate declined to consider President John Quincy Adams’ lame-duck nomination, maintaining the vacancy for the incoming president to fill. The Senate used the same rationale in 2016 with the Merrick Garland appointment.
John Tyler became President in 1841 after William Harrison died after 30 days in office. The Whig Party expelled Tyler after he vetoed several Whig sponsored bills. The Whigs controlled Congress and declined to confirm Tyler's court nominations. Tyler experienced the most rejections of any president. For one vacancy, he made six separate nominations before getting a candidate approved. He never filled a second vacancy after three failed attempts.
Millard Fillmore became president when Zachary Taylor died in office. He made three nominations for a vacancy, two while a lame duck. The Senate did not vote on any of them.
After the Civil War, Presidents Johnson, Grant, Hayes, and Cleveland all had candidates who failed confirmation. The Senate rejected one of Grant's nominations, Ebenezer Hoar. He apparently did not support patronage while the Senate did. It took Grant three nominations to fill another vacancy due to Senate opposition to his initial candidates.
In 1881, the Senate opposed a nomination of Stanley Matthews by President Rutherford B. Hayes. Senators felt cronyism was involved as Hayes, and the nominee had attended college and served in the infantry together. After the nomination lapsed, President Garfield re-nominated Matthews. He was approved by a 24-23 vote, the closest confirmation in history.
Grover Cleveland required three nominations to fill a seat on the Court. The first two were rejected due to opposition by a Senator from New York, the nominee's home state. Although Grover Cleveland was a Democrat, the Democratic Senate voted against nominee William Peckham due to political infighting in New York. Later in Cleveland's term, Cleveland appointed William's brother, Rufus. By now, the Republicans were a majority in the Senate, and the brother was confirmed to the Supreme Court.
20th and 21st centuries
From the late 1890s until the 1960s, Supreme Court nominations were generally approved. Controversy started back up with Lyndon Johnson's 1968 appointment of Associate Justice Abe Fortas to be Chief Justice. Fortas was involved in some financial scandals, which ultimately led to his resignation from the Court. Conservatives also opposed the appointment due to his liberal positions. At the time, judicial nominations were subject to the filibuster, and Fortas's nomination did not clear that hurdle.
It took President Richard Nixon three nominations to fill Fortas' seat on the Court. The Senate rejected Clement Haynsworth and Harrold Carswell, both Southerners. The opposition was based on concerns over civil rights and labor rights. The seat was filled when Nixon appointed Harry Blackmun, who eventually wrote the Roe v. Wade abortion opinion.
President Ronald Reagan's 1987 appointment of Robert Bork was voted down 58–42. His nomination was strongly opposed by liberal civil rights and women's groups. The opposition was so vociferous that a new verb entered the vocabulary – "to bork," meaning "to attack or defeat a nominee or candidate … through an organized campaign of harsh public criticism or vilification."
The most recent controversies surround Justices Clarence Thomas and Brett Kavanaugh. Both were accused of sexual misconduct and approved by very narrow margins.
The Supreme Court wields significant power. Perhaps too much power. The Court has been asked to resolve issues that the legislature has either been unwilling or unable to resolve. As a result, 200 years of contentious nomination processes that started with George Washington, and affecting both parties, are likely to continue well into the future.