Order Code RL31171
CRS Report for Congress
Received through the CRS Web
Supreme Court Nominations
Not Confirmed, 1789-2004
Updated March 21, 2005
Henry B. Hogue
Analyst in American National Government
Government and Finance Division
Congressional Research Service ˜ The Library of Congress

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Supreme Court Nominations
Not Confirmed, 1789-2004
Summary
Of the 154 nominations to the U.S. Supreme Court between 1789 and 2004, 34
were not confirmed by the Senate. The 34 nominations represent 29 individuals
whose names were sent forward to the Senate by Presidents (some individuals were
nominated more than once). Of the 29 individuals who failed to be confirmed the
first time they were nominated, however, five were later nominated again and
confirmed. The Supreme Court nominations discussed here were not confirmed for
a variety of reasons, including Senate opposition to the nominating President,
nominee’s views, or incumbent Court; senatorial courtesy; perceived political
unreliability of the nominee; perceived lack of ability; interest group opposition; and
fear of altering the balance of the Court. The Senate Committee on the Judiciary has
played an important role in the confirmation process, particularly since 1868.
These nominations have been the subject of extensive legal, historical, and
political science writing, a selected list of which is included in this report.
This report will be updated in the event of a Supreme Court vacancy.

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Contents
The Confirmation Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Summary of Unsuccessful Nominations . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Factors Behind Unsuccessful Nominations . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Opposition to the President . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Opposition to the Nominee’s Views . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Opposition to the Incumbent Court . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Senatorial Courtesy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Allegations of Political Unreliability . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Perceived Lack of Qualification or Ability . . . . . . . . . . . . . . . . . . . . . 12
Interest Group Opposition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Fear of Altering the Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
The Committee on the Judiciary and Unsuccessful Nominations . . . . . . . . 13
Additional Information on Nominations . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Additional Resources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
CRS Products . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Other Resources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
List of Tables
Table 1. Supreme Court Nominations Not Confirmed, 1789-2004,
by Final Disposition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Table 2. Summary of Supreme Court Nominations Not Confirmed,
1789-2004 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Table 3. Supreme Court Nominations by President, 1789-2004 . . . . . . . . . . . . 15
Table 4. Supreme Court Nominations Not Confirmed, 1789-2004 . . . . . . . . . . . 18

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Supreme Court Nominations
Not Confirmed, 1789-2004
Over the course of United States history, approximately one-quarter of the
presidential nominations to the U.S. Supreme Court have failed to place a new
Associate or Chief Justice on the bench. Of the 154 nominations to the Court
between 1789 and 2004, 112 individuals were confirmed and served, 7 individuals
were confirmed and declined to serve, 1 confirmed nominee died before he could
take his seat, and 34 nominations were not confirmed. This report discusses this last
group of Supreme Court nominations. The 34 failed nominations represent 29
individuals whose names were sent forward to the Senate by Presidents (some of
those 29 individuals were nominated more than once). The Supreme Court
nominations discussed here were not confirmed for a variety of reasons, including
Senate opposition to the nominating President, the nominee’s views, or the
incumbent Court; senatorial courtesy; perceived political unreliability of the
nominee; perceived lack of ability; interest group opposition; and fear of altering the
balance of the Court. The Senate Committee on the Judiciary has played an
important role in the confirmation process, particularly since 1868.
Summary discussions of the Senate confirmation process and the unsuccessful
nominations follow. The reasons some nominations have failed confirmation and the
role of the Senate Judiciary Committee are also discussed. Finally, the report
includes a detailed table that identifies each nomination and provides, for each, the
facts that can be documented about the dates of relevant activity and votes in the
Judiciary Committee and the full Senate. A list of additional relevant literature is
also provided.
The Confirmation Process
The Constitution of the United States provides for the appointment of a Justice
to the Supreme Court in Article II, Section 2. This section states that the President
“shall nominate, and by and with the Advice and Consent of the Senate, shall appoint
... Judges of the [S]upreme Court.” The practices involved in following this
constitutional mandate have varied over the years, but they have always involved the
sharing of the appointment power between the President and the Senate.1
Nominations that failed to be confirmed by the Senate have been disposed of in
a variety of ways, including withdrawal by the President, inaction in the committee,
1 For a more detailed history of the Supreme Court nominations process, see CRS Report
RL31989, Supreme Court Appointment Process: Roles of the President, Judiciary
Committee and Senate, by Denis Steven Rutkus; and CRS Report RL32821, The Chief
Justice of the United States: Responsibilities of the Office and Process for Appointment, by
Denis Steven Rutkus and Lorraine H. Tong.

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inaction in the Senate, postponement, tabling, rejection on the Senate floor, and
filibuster on the Senate floor. Table 1 provides a summary of the unsuccessful
nominations by final disposition.
Table 1. Supreme Court Nominations Not Confirmed,
1789-2004, by Final Disposition
Rejected by a vote of the full Senate
11
Withdrawn by the President without Senate action
2
Postponed or tabled by the Senate, but not withdrawn by the President
5
Postponed or tabled by the Senate and withdrawn by the President
3
No record of referral, motion to consider unsuccessful
2
Referred to committee, but never reported or discharged from committee
5
Discharged from committee, no record of action by the full Senate
1
Reported from committee, considered by the Senate, recommitted, and withdrawn
1
by the President
Reported or discharged from committee, motion to consider unsuccessful
2
Reported or discharged from committee, withdrawn by the President
1
Withdrawn by the President after defeat of cloture motion
1
Total Supreme Court nominations not confirmed
34
Summary of Unsuccessful Nominations
The 34 Supreme Court nominations not confirmed by the Senate represent 29
individuals. Five of these 29 were later re-nominated and confirmed for positions on
the Court. Of the other 24 nominees, four were nominated and failed confirmation
more than once. Table 2 provides summary information concerning unsuccessful
nominations.
The first of the five nominees who were not confirmed only to be later re-
nominated and confirmed was William Paterson, nominated by President George
Washington. Washington withdrew the nomination on the day following its
submission. He noted that Paterson “was a member of the Senate when the law
creating that office was passed, and that the time for which he was elected [had] not
yet expired.”2 For this reason, President Washington felt that the nomination was in
violation of the Constitution.3 President Washington re-nominated Paterson at the
2 U.S. Congress, Senate, Journal of the Executive Proceedings of the Senate of the United
States of American, vol. 1, p. 135. (Hereafter cited as Executive Journal.)
3 Article I, Section 6 of the Constitution provides that, “No Senator or Representative shall,
during the Time for which he was elected, be appointed to any civil Office ... , which shall
(continued...)

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beginning of the following Congress a few days later, and Paterson was immediately
confirmed.4 All of the other unsuccessful nominations faced opposition in the
Senate.
Table 2. Summary of Supreme Court Nominations
Not Confirmed, 1789-2004
Total Supreme Court nominations
154
Total Supreme Court nominations not confirmed
34
Nominees who failed to be confirmed at least once
29
Unconfirmed nominees who never served in the position to which they were
23
nominated
Unconfirmed nominees later re-nominated and confirmed
5
Unconfirmed nominee who served as a recess appointee in a position to which he
1
was nominated
Nominees subject to two or three failed nominations (for a total of nine
4
nominations)
Unconfirmed nomination to elevate sitting Associate Justice to Chief Justice
1
Unconfirmed nomination of former Associate Justice to Chief Justice
1
Source: Total Supreme Court nominations calculated using data from Elder Witt, Guide to the U.S.
Supreme Court, 2nd ed. (Washington: Congressional Quarterly, 1990), pp. 995-998; and Lee Epstein,
Jeffrey A. Segal, Harold J. Spaeth, and Thomas G. Walker, The Supreme Court Compendium: Data,
Decisions, and Developments (Washington: Congressional Quarterly, 1994), pp. 284-290. Other
totals summarize information from Table 4 of this report.
The other four nominees who were later re-nominated and confirmed were
Roger B. Taney, nominated twice by President Andrew Jackson; Stanley Matthews,
nominated first by President Rutherford B. Hayes and later by President James A.
Garfield; Pierce Butler, nominated twice by President Warren G. Harding; and John
3 (...continued)
have been created ... during such time....” The office to which Washington was nominating
Paterson, Associate Justice, was created by the Judiciary Act of 1789 on September 24,
1789, during which time Paterson was a Senator. Paterson began serving in the Senate on
March 4, 1789 and resigned on November 13, 1790, having been elected Governor of New
Jersey (U.S. Congress, House, Biographical Directory of the American Congress, H.Doc.
607, 81st Cong., 2nd sess. [Washington: GPO, 1950], p. 1655). His term, however, did not
conclude until March 3, 1793 (U.S. Congress, Senate, Senate Manual, S.Doc. 106-1, 106th
Cong., 1st sess. [Washington: GPO, 2000], p. 859), and so his appointment to Associate
Justice prior to that date would have been unconstitutional. President Washington re-
nominated, and a special session of the Senate of the new Congress confirmed, Paterson on
March 4, 1793. Paterson’s Senate position had covered four years, rather than six, due to
the staggering of Senate terms at the outset of the First Congress, which was called for in
the Constitution (Article I, Section 3) and was implemented in the Senate in May 1789.
4 Executive Journal, vol. 1, p. 139.

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Marshall Harlan II, nominated twice by President Dwight D. Eisenhower. 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. Matthews’s first nomination was never
reported out of committee, but in the following Congress, under a new President, he
was re-nominated and confirmed by a one-vote margin.5 Butler was first nominated
to the high court during the third session of the 67th Congress. Confirmation was
blocked during that session, but Butler was re-nominated and confirmed during the
fourth session. Harlan was initially nominated to be an Associate Justice late in the
83rd Congress, and this nomination remained in committee at the time of
adjournment. His second nomination, at the beginning of the following Congress,
was confirmed a few months later.
Four individuals were the subjects of more than one unsuccessful nomination.
The first three, John C. Spencer, Reuben H. Walworth, and Edward King, were
nominees of President John Tyler. President Tyler had the opportunity to fill two
vacancies on the high court. He made nine nominations of five men in the space of
the last 15 months of his presidency. Eight of these nominations were not confirmed,
giving President Tyler the highest tally of unconfirmed Supreme Court nominations.
President Tyler nominated Spencer for the first vacancy. After the Senate rejected
Spencer, Walworth was put forward for the position, and the Senate tabled this
nomination. On June 17, 1844, the last day of the congressional session,6 President
Tyler withdrew the tabled Walworth nomination and re-nominated Spencer. Unable
to gain unanimous consent for the Spencer nomination to be acted upon, Tyler then
withdrew Spencer’s name on the same day and re-nominated Walworth.7 By this
time, the nomination (June 5, 1844) of King for the second vacancy had also been
tabled. Tyler went on to re-nominate Walworth and King at the beginning of the
following congressional session. After these two nominations were once again
tabled, they were both withdrawn. The nomination of John M. Read, which
followed, was reported out of committee but never acted upon by the full Senate.
Samuel Nelson was President Tyler’s fifth nominee, and he was confirmed.
The fourth individual subject to multiple unconfirmed nominations was William
B. Hornblower, who was nominated in successive sessions of Congress by President
Grover Cleveland. His first nomination was never reported out of committee; the
second nomination was reported out and rejected.
One of the unsuccessful nominees had previously been Associate Justice, had
left the Court, and this time was being nominated for Chief Justice. Another was a
sitting Associate Justice nominated for elevation to the Chief Justice position. The
first of these was also the first nomination in which the Senate voted not to confirm.
John Rutledge had previously served as one of the first Associate Justices from 1789
to 1791. In addition, he served as Chief Justice in 1795 under a recess appointment
5 Executive Journal, vol. 23, pp. 14, 75-76.
6 28th Congress, 1st Sess.
7 “Washington: Adjournment of Congress,” Daily National Intelligencer (Washington), June
18, 1844, p. 3.

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by President Washington. When the President nominated him later that year to
succeed John Jay as permanent Chief Justice, however, the Senate asserted its
constitutional power and voted against confirmation. The second such nominee,
Justice Abe Fortas, was a sitting Associate Justice at the time of his nomination by
President Lyndon B. Johnson to be Chief Justice in 1968. The nomination was
favorably reported out of committee but filibustered on the floor of the Senate until
the President withdrew the nomination.8
One unsuccessful nomination coincided with a legislative initiative to decrease
the size of the Court. On April 16, 1866, President Andrew Johnson nominated
Henry Stanbery to replace John Catron, 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 justices in the Supreme Court.9 The act, as signed into law
on July 23, 1866, called for a decrease in the number of Associate Justices from nine
to six through the process of attrition.10 At the time the bill was initiated and also at
the time its final version was signed, only one vacancy, that to which Stanbery was
nominated, existed on the Court. Eight Associate Justice positions remained on the
bench until the death of James M. Wayne in July 1867. Seven Associate Justice
positions remained until a law was passed in April 1869 to increase the number back
to eight.11
Several scholars have suggested that, by reducing the number of Associate
Justice positions,12 the Republican Congress was trying to thwart the ability of
Democratic President Johnson to shape the Supreme Court, although the record of
House and Senate debate is silent as to each chamber’s intention in this regard.13 The
law increasing the Associate Justice positions to eight was passed within two months
of the beginning of the Administration of President Ulysses S. Grant.
8 For more on the Senate’s consideration of the Fortas nomination, see CRS Report
RL31948, Evolution of the Senate’s Role in the Nomination and Confirmation Process: A
Brief History, by Betsy Palmer.
9 H.R. 334 (39th Congress), passed Mar. 8, 1866.
10 An Act to fix the Number of Judges of the Supreme Court of the United States, and to
change certain Judicial Circuits, Statutes at Large 14, chap. 210, sec.1, p. 209 (1866).
11 An Act to amend the Judicial System of the United States, Statutes at Large 15, chap. 22,
sec. 1, p. 44 (1869).
12 See Joseph P. Harris, The Advice and Consent of the Senate (New York: Greenwood
Press, 1968), p. 304; Henry J. Abraham, Justices and Presidents, 3rd ed. (New York: Oxford
University Press, 1992), pp. 124-125; and J. Myron Jacobstein and Roy M. Mersky, The
Rejected: Sketches of the 26 Men Nominated for the Supreme Court but Not Confirmed by
the Senate (Milpitas, CA: Toucan Valley Publications, 1993), pp. 67-74.
13 See “Supreme Court of the United States,” The Congressional Globe, vol.72, Mar. 8,
1866, p. 1259; “Supreme Court Judges,” The Congressional Globe, vol. 74, July 10, 1866,
p. 3697; “United States Supreme Court,” The Congressional Globe, vol.75, July 18, 1866,
p. 3909.

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Factors Behind Unsuccessful Nominations
There have often been multiple reasons behind the failure of the Senate to
confirm a nomination. The official Senate records, particularly those prior to the
twentieth century, have usually been silent on the issues involved. Scholars have
used other records in an effort to shed more light on the factors underlying
unsuccessful Supreme Court nominations. This scholarship consists of analysis and
interpretation of these records, and it provides a general understanding of the reasons
that more than one in five nominations has failed to be confirmed by the Senate.
One widely cited scholar in the area of the Supreme Court appointments process
and history, Henry J. Abraham, has developed categories of unsuccessful
nominations:
Among the more prominent reasons have been: (1) opposition to the nominating
president, not necessarily the nominee; (2) the nominee’s involvement with one
or more contentious issues of public policy or, simply, opposition to the
nominee’s perceived jurisprudential or sociopolitical philosophy (i.e., politics);
(3) opposition to the record of the incumbent Court, which, rightly or wrongly,
the nominee presumably supported; (4) senatorial courtesy (closely linked to the
consultative nominating process); (5) a nominee’s perceived political
unreliability on the part of the party in power; (6) the evident lack of
qualification or limited ability of the nominee; (7) concerted, sustained
opposition by interest or pressure groups; and (8) fear that the nominee would
dramatically alter the Court’s jurisprudential lineup.14
The sections below discuss the nominations with respect to these categories
based on the preponderance of scholarly evidence. Many of the nominations fall into
multiple categories.
Opposition to the President. Opposition to the nominating President
played a role in at least 16 of the 34 nominations that were not confirmed. Many of
the 16 were put forward by Presidents in the last year of their presidency — seven
occurred after a successor President had been elected, but before the transfer of
power to the new administration. Each of these “lame duck” nominations transpired
under nineteenth-century Presidents when the post-election period lasted from early
November until early March. Four one-term Presidents made these nominations.
President John Quincy Adams nominated John J. Crittenden in December 1828, after
losing the election to Andrew Jackson.15 President Tyler’s third nomination of
Walworth, second nomination of King, and only nomination of Read all came after
Tyler had lost to James Polk.16 President Millard Fillmore nominated George E.
14 Abraham, p. 39.
15 Charles Warren, The Supreme Court in United States History, revised edition, vol. 1
(Boston: Little, Brown, and Company, 1926), pp. 701-704; William F. Swindler, “The
Politics of ‘Advice and Consent,’” American Bar Association Journal, v. 56, 1970, p. 537.
16 Warren, vol. 2, pp. 115-120; Swindler, pp. 537-538. Notably, Tyler also put forth his one
successful nomination out of nine, of Samuel Nelson, a month before the transfer of power.

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Badger and William C. Micou after Franklin Pierce had been elected to replace him.17
Finally, President James Buchanan forwarded the name of Jeremiah S. Black to the
Senate less than a month before Abraham Lincoln’s inauguration.18 Other
nominations where opposition to the President was a major factor include the
remaining unsuccessful Tyler nominations, Fillmore’s nomination of Edward A.
Bradford, and Andrew Johnson’s nomination of Henry Stanbery.19
President Lyndon B. Johnson’s two unsuccessful nominations (Fortas and
Thornberry) occurred during the last seven months of his presidency, when, having
announced he was not seeking re-election, he was considered by some to be a lame
duck even before the election of his successor. Nineteen Senators issued a statement
indicating that, on this basis, they would oppose any nomination by President
Johnson.20 The committee report accompanying the nomination of Abe Fortas to
Chief Justice, however, suggests that the opposition to Justice Fortas was based, to
a considerable extent, on concern about money received by Fortas for delivering
university lectures while an Associate Justice, Fortas’s close relationship and
advisory role with President Johnson while an Associate Justice, and his judicial
philosophy.21
President Rutherford B. Hayes nominated Stanley Matthews in late January
1881, about six weeks before the transfer of power to the Garfield administration.
In this case, however, the opposition seems to have centered on the nominee and his
views, as discussed below, rather than on the nominating President.
Opposition to the Nominee’s Views. President Washington’s nomination
of John Rutledge to Chief Justice, in 1795, was the first unsuccessful nomination to
fail based on the nominee’s political views. Shortly after his nomination, Rutledge
made a strong speech denouncing the controversial and newly ratified Jay Treaty
between the United States and Great Britain. The Senate, which was dominated by
Federalists and had ratified the treaty, rejected the Rutledge nomination. Of the 14
who voted for rejection, 13 were Federalists, putting them in the position of rejecting
a nomination by a President from their own party.22
Alexander Wolcott’s nomination 15 years later was the next to be rejected by
the Senate. Wolcott’s strong enforcement of the controversial embargo and non-
17 Warren, vol. 2, pp. 242-245; Swindler, pp. 538-539.
18 Warren, vol. 2, pp. 363-365.
19 Abraham, pp. 39-41, 124-125. As previously discussed, Congress initiated legislation to
reduce the number of Associate Justices around the time of Stanbery’s nomination.
20 Jacobstein and Mersky, pp.131-132.
21 U.S. Congress, Senate Committee on the Judiciary, Nomination of Abe Fortas, report to
accompany the nomination of Abe Fortas, 90th Cong., 2nd sess., Exec. Rept. 8 (Washington:
GPO, 1968).
22 See Warren, vol. 1, pp. 129-139; Harris, pp 42-43; Ruth Bader Ginsburg, “Confirming
Supreme Court Justices: Thoughts on the Second Opinion Rendered by the Senate,”
University of Illinois Law Review, Winter 1988, p. 101-117, at 106; Swindler, pp. 534-535.

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intercourse acts while a U.S. collector of customs cost him support in the press and
the Senate. His qualifications for the position were also questioned.23
Andrew Jackson’s first nomination of Roger B. Taney in 1835 was the third
nomination for which the lack of success is often attributed to the nominee’s views.
In this case, there was also opposition to the nominating President’s policies. Prior
to the nomination, President Jackson had given a recess appointment to Taney to be
Secretary of the Treasury. In that capacity, Taney had, under Jackson’s direction,
removed the government’s deposits from the United States Bank. Jackson’s Whig
opponents in the Senate were incensed by this move, and this led first to the rejection
of Taney as permanent Secretary of the Treasury and then to the failure of his first
nomination to the Court.24
President James Polk’s nomination of George W. Woodward in 1845 was
rejected when six Democrats, led by a Senator from the nominee’s home state of
Pennsylvania, joined with the Whigs to oppose it. Woodward’s nativist views are
cited for the failure of his nomination.25
Ebenezer R. Hoar served as President Ulysses S. Grant’s Attorney General prior
to his nomination to be Associate Justice in 1869. In that capacity, Hoar had
alienated Senators by recommending to Grant nominees for Circuit Judge without
regard for the Senators’ preferences. In addition, the majority of the Senate disliked
“his active labors on behalf of a merit civil service system for the federal government
... and his opposition to Andrew Johnson’s impeachment.”26 Despite praise for
Hoar’s nomination in the press, the Senate rejected it.
Stanley Matthews was nominated first by President Rutherford B. Hayes in
1881, in the last weeks of Hayes’ presidency. The Senate opposed the nomination
because of Matthews’ close ties to railroad and financial interests, and the Judiciary
Committee postponed the nomination. Although Matthews was subsequently re-
nominated by President James Garfield and confirmed, concerns about him persisted,
and the Senate vote, at 24-23, was the closest for any successful nominee.27
Pierce Butler’s first nomination, by President Warren G. Harding in 1922, was
reported favorably by the Judiciary Committee but blocked from consideration on the
Senate floor in part because of alleged pro-corporation bias and his previous
advocacy for railroad interests in cases that were to be coming before the Court.28
23 Warren, vol. 1, pp. 410-413; Swindler, pp.535-536; Abraham, pp. 41, 88.
24 Harris, pp. 59-64; Warren, vol. 1, pp. 798-802.
25 Abraham, pp. 41, 109; Warren, vol. 2, pp. 146-147; Harris, p. 69.
26 Abraham, p. 127. See also Warren, vol. 2, pp. 501-504, 507; Harris, pp. 74-75.
27 Warren, vol. 2, pp.622-623; Abraham 135-137.
28 Abraham, pp. 190-192; “Senate Sends Back Butler Nomination,” The New York Times,
Dec. 5, 1922, p. 1; and “Shipstead Attacks Butler on 4 Points,” The New York Times, Dec.
9, 1922, p. 5.

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During the succeeding session, Butler was re-nominated and confirmed, with 61
Senators in favor and eight opposed.29
John J. Parker, nominated by President Herbert Hoover in 1930, was opposed
by the National Association for the Advancement of Colored People (NAACP) and
organized labor based on his previous statements and writings.30 The NAACP
testified in opposition to Parker’s racial views at his confirmation hearing. Their
testimony was based on a statement Parker had made in the course of an unsuccessful
campaign for governor of North Carolina in 1920, in which he opposed the
participation of African-Americans in politics.31 In addition, Parker’s record on labor
issues, as chief judge of the U.S. Fourth Circuit Court of Appeals, was criticized by
labor at the hearing. The American Federation of Labor (AFL), representing several
labor groups, objected in particular to an opinion, authored by Parker, that affirmed
a lower court opinion in support of “yellow dog” contracts, in which employees
agreed not to join a union as a condition of employment.32
President Dwight D. Eisenhower first nominated John Marshall Harlan II to be
an Associate Justice in late 1954, but that nomination was never reported from
committee. Among the objections to his nomination was the perception by some
Senators that Harlan was “‘ultra-liberal,’ hostile to the South, [and] dedicated to
reforming the Constitution by ‘judicial fiat.’”33 Eisenhower re-nominated Harlan at
the beginning of the next Congress, in early 1955, and he was then confirmed.
As noted previously, President Lyndon B. Johnson’s nomination of Justice Abe
Fortas in 1968 for elevation to Chief Justice failed for several reasons, including his
judicial philosophy. Although the Committee on the Judiciary reported the
nomination favorably, several committee members strongly dissented in the
committee’s printed report. One Senator wrote that Fortas’s “judicial philosophy
disqualifies him for this high office.” Another criticized Fortas as part of the
majority on the Supreme Court led by Chief Justice Earl Warren (the Warren Court)
making an “extremist effort ... to set itself up as a super-legislature.” A third Senator
also found Fortas lacking on the “broader question of the nominee’s judicial
philosophy which includes his willingness to subject himself to the restraint inherent
in the judicial process.” Yet another Senator objected to “positions taken by Justice
Fortas since he went on the Supreme Court as Associate Justice [which had] reflected
a view to the Constitution insufficiently rooted to the Constitution as it is written.”34
29 Executive Journal, vol.61, part 1, pp. 76, 104-105.
30 For a description of the Parker nomination and a differing perspective on his record, see
Harris, pp. 127-132. Abraham (pp. 42-43) also discusses the nomination and contests the
claims offered by opponents.
31 U. S. Congress, Committee on the Judiciary, Subcommittee, Confirmation of Hon. J.
Parker to be an Associate Justice of the Supreme Court of the United States, hearings, 71st
Cong., 2nd sess., April 5, 1930 (Washington: GPO, 1930), pp. 74-79.
32 Ibid, pp. 23-60.
33 Abraham, p. 263.
34 All quotes from U.S. Congress, Senate Committee on the Judiciary, Nomination of Abe
(continued...)

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Opposition to Fortas was also based on money received for delivering university
lectures while an Associate Justice and his close relationship and advisory role with
President Johnson while an Associate Justice.
President Richard M. Nixon’s nomination of Clement F. Haynsworth, Jr. in
1969 also failed partly on the basis of his perceived views. Like the Fortas
nomination, the Haynsworth nomination was reported favorably by the Committee
on the Judiciary. In this case, the dissenting views in the committee’s written report
focused on perceived ethical lapses on the part of Judge Haynsworth. In addition, a
joint statement by five Senators referred to “doubts about his record on the appellate
bench,” and one Senator opposed the nomination on the basis of the judge’s record
on civil rights issues.35 Furthermore, Haynsworth drew criticism from labor and
minority groups on the basis of his record. One historian has suggested that because
of the recent rejection of Fortas on the basis of ethical questions, the ethical questions
concerning Haynsworth played the largest role in his rejection.36
President Nixon’s nomination of G. Harrold Carswell in 1970 was also opposed
partly on the basis of his perceived views. The Committee on the Judiciary reported
the nomination favorably with several dissenting views. One statement, issued
jointly by four Senators, opposed the nomination in part because his “decisions and
his courtroom demeanor [had] been openly hostile to the black, the poor, and the
unpopular.”37 A more persistent theme in the dissent, however, was a perceived lack
of competence and qualification for the position.38
Robert H. Bork, nominated by President Reagan in 1987, is the most recent
Supreme Court nominee not to be confirmed by the Senate, as well as the most recent
to be rejected on the basis of his views. Much has been written about this
nomination, and it remains controversial. The Committee on the Judiciary reported
the nomination unfavorably after 12 days of hearings. Although the written report
raised some concerns about the nominee’s evaluation by the American Bar
Association and academic and legal communities and his role in the firing of Special
Prosecutor Archibald Cox during the Nixon administration, the bulk of the report
detailed concerns about and opposition to his publicly stated positions and judicial
philosophy.39
34 (...continued)
Fortas, report to accompany the nomination of Abe Fortas, 90th Cong., 2nd sess., Exec. Rept.
8 (Washington: GPO, 1968), pp. 15-44. See also Abraham, 43-45.
35 U.S. Congress, Senate Committee on the Judiciary, Nomination of Clement F.
Haynsworth, Jr., report to accompany the nomination of Clement F. Haynsworth, Jr., 91st
Cong., 1st sess., Exec. Rept. 91-12 (Washington: GPO, 1969), pp. 24, 48.
36 Abraham, pp. 14-15.
37 U.S. Congress, Senate Committee on the Judiciary, Nomination of George Harrold
Carswell, report to accompany the nomination of George Harrold Carswell, 91st Cong., 2nd
sess., Exec. Rept. 91-14 (Washington: GPO, 1970), p. 13.
38 Abraham, pp. 15-18.
39 U.S. Congress, Senate Committee on the Judiciary, Nomination of Robert H. Bork to be
(continued...)

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CRS-11
Opposition to the Incumbent Court. The rejection by the Senate of a
Supreme Court nominee on the basis of opposition to the incumbent Court is closely
related to opposition on the basis of the nominee’s views. In this case, the views and
record of the incumbent Court majority are opposed, whereas the nominee is
presumed to support the Court’s views. In the case of Abe Fortas’s nomination for
Chief Justice, for example, the opposition of many Senators to the Warren Court has
been cited as an influential factor. Fortas had been an Associate Justice for almost
three years at the time of his nomination, and some opposition hinged on his
positions while on the Court, as discussed above. In addition, however, his elevation
was opposed because of his affiliation with the Warren Court and its wider
reputation. This opposition to the Warren Court in the context of the Fortas
nomination is reflected in the individual views of a Senator in the committee report.40
In addition, during the confirmation hearings, another Senator pointedly brought up
a Warren Court opinion with which he disagreed, Mallory v. United States,41
although, as he acknowledged, the case had preceded Fortas’s appointment as
Associate Justice by eight years.42
Senatorial Courtesy. At least seven Supreme Court nominations have failed
to be confirmed partly on the basis of deference to the objections of the nominees’
home-state Senators. New York’s Senators objected to the nominations of Reuben
H. Walworth by President Tyler.43 President Polk’s nomination of George W.
Woodward of Pennsylvania was rejected, in part, due to the objection of one of the
Senators from that state.44 The last failed Supreme Court nominations that were
attributed, in part, to senatorial courtesy came before the Senate in 1893-1894, when
opposition by New York’s Senators was instrumental in the failure of the
nominations of William Hornblower and Wheeler H. Peckham, both also of New
York.45 No unsuccessful Supreme Court nomination since that time has been
attributed to senatorial courtesy.46
Allegations of Political Unreliability. One unsuccessful nominee was
opposed in the Senate in part because of the perception that he was a “political
39 (...continued)
an Associate Justice of the United States Supreme Court, 100th Cong., 1st sess., Exec. Rept.
100-7 (Washington: GPO, 1987).
40 U.S. Congress, Senate Committee on the Judiciary, Nomination of Abe Fortas, report to
accompany the nomination of Abe Fortas, 90th Cong., 2nd sess., Exec. Rept. 8 (Washington:
GPO, 1968), pp. 20-30.
41 354 U.S. 449 (1957). For the Senator’s remarks, see U.S. Congress, Senate Committee on
the Judiciary, Nominations of Abe Fortas and Homer Thornberry, hearings, 90th Cong., 1st
sess., July 11, 12, 16, 17, 18, 19, 20, 22, 23, 1968 (Washington: GPO, 1968), p. 191.
42 Abraham, p. 44.
43 Abraham, p. 27-28.
44 Swindler, p. 538; Abraham, p. 41.
45 Swindler, p. 541; Abraham, pp. 27-28.
46 For a discussion of senatorial courtesy, see Harris, pp. 215-237.

---

CRS-12
chameleon.”47 One of President Grant’s nominees for Chief Justice, Caleb Cushing,
“had been, in turn, a regular Whig, a Tyler Whig, a Democrat, a[n Andrew] Johnson
Constitutional Conservative, and finally a Republican.”48 The failure of his
nomination has also been attributed to his advanced age (74) and a letter of
introduction of a friend Cushing wrote to Confederate President Jefferson Davis in
1861.49
Perceived Lack of Qualification or Ability. As noted previously,
President Madison’s nomination of Alexander Wolcott50 and President Nixon’s
nomination of G. Harrold Carswell51 were opposed in part because of their perceived
lack of qualification and ability. President Grant’s nomination of George H.
Williams faced similar opposition.52 Williams also suffered from allegations of
ethical misconduct.53
Interest Group Opposition. Interest groups were involved in confirmation
fights as far back as 1881, when the Grange mounted a campaign in opposition to the
Matthews nomination.54 Interest groups testified in opposition to (and, in some
cases, support of) many of the Supreme Court nominations that were not confirmed
in the twentieth century — Parker, Fortas, Thornberry, Haynsworth, Carswell, and
Bork. The number of organized interest groups testifying at the confirmation hearings
grew from two for the Parker nomination to more than twenty for the Bork
nomination.55 Interest groups have been active in unsuccessful Supreme Court
confirmation processes in a number of other ways, as well, including conducting
research on nominees’ positions, lobbying Senators, providing information to the
media, conducting television ad campaigns, sending mailings, and organizing
constituent letters and calls.56 Observers of the Supreme Court confirmation process
47 Abraham, p.45. See also Harris, p. 76; Swindler pp. 540-541.
48 Abraham, p. 45.
49 Harris, p. 76; see also Jacobstein and Mersky, pp. 87-93 for a description of this
nomination.
50 Abraham, p. 41; Jacobstein and Mersky, pp. 14-17; Swindler, p. 535.
51 Abraham 16-17. See also U.S. Congress, Senate Committee on the Judiciary, Nomination
of George Harrold Carswell, report to accompany the nomination of George Harrold
Carswell, 91st Cong., 2nd sess., Exec. Rept. 91-14 (Washington: GPO, 1970), pp. 13-17, 32-
33, 36-38.
52 Abraham, pp. 45-56; Harris, pp. 75-76.
53 Jacobstein and Mersky, pp. 82-87.
54 John A. Maltese, The Selling of Supreme Court Nominees (Baltimore: The Johns Hopkins
University Press, 1995), chapter 3.
55 Maltese, chapter 6.
56 Christine DeGregorio and Jack E. Rossotti, “Campaigning for the Court: Interest Group
Participation in the Bork and Thomas Confirmation Processes,” in Interest Group Politics,
4th ed., Allan J. Cigler and Burdett A. Loomis, eds. (Washington: CQ Press, 1995), p. 215;
and Gregory A. Caldeira, Marie Hojnacki, and John R. Wright, “The Lobbying Activities
(continued...)

---

CRS-13
have suggested that interest group opposition has not only grown, but has also been
effective in preventing confirmations. The impact of interest group opposition
relative to other factors is a matter of continuing study.57
Fear of Altering the Court. In addition to the above-mentioned reasons for
not confirming a nomination, the Senate may fear altering the jurisprudential
philosophy of the Court. In this case, opposition would be not only to the perceived
views of the nominee, but also to the impact the nominee could have on the Court’s
ideological balance. The best-documented case where this factor appears to have
been influential was President Reagan’s nomination of Robert H. Bork. Bork was
nominated to replace Associate Justice Lewis F. Powell, Jr., who had been the swing
voter on an often evenly divided bench. If confirmed, Bork was expected to tip the
Court to the conservative side, and some of the opposition to his nomination came
from those who opposed this change.58
The Committee on the Judiciary and
Unsuccessful Nominations
Since 1816, the Senate has had a standing Committee on the Judiciary. Prior
to that development, one of the three unsuccessful nominations was referred to a
select committee. Between 1816 and 1868, 11 of the 16 unsuccessful nominations
were referred to the Judiciary Committee. Since 1868, almost all Supreme Court
nominations, including all that were ultimately not confirmed, have been
automatically referred to the Judiciary Committee.59
Of the unsuccessful nominations that have been referred to the Judiciary
Committee, five were never reported or discharged. The first four, Henry Stanbery,
Stanley Matthews, William Hornblower, and John Marshall Harlan II, are discussed
above. The fifth was Homer Thornberry, nominated by President Lyndon B. Johnson
to replace Justice Abe Fortas as Associate Justice when he was nominated for
elevation to Chief Justice. When Fortas’s nomination was withdrawn by the
President, the open position for Thornberry was effectively eliminated, and his
nomination was also withdrawn. At that time, the nomination had not been reported
by the Judiciary Committee.
56 (...continued)
of Organized Interests in Federal Judicial Nominations” (paper presented at the 1996 Annual
Meeting of the Midwest Political Science Association).
57 See, for example, Jeffrey A. Segal, Charles M. Cameron, and Albert D. Cover, “A Spatial
Model of Roll Call Voting: Senators, Constituents, Presidents, and Interest Groups in
Supreme Court Confirmations,” American Journal of Political Science, vol. 36, Feb. 1992,
p. 96; and Gregory A. Caldeira and John R. Wright, “Lobbying for Justice: Organized
Interests, Supreme Court Nominations, and the United States Senate,” American Journal of
Political Science, vol. 42, April 1998, p. 499.
58 Abraham, 356-359; Jacobstein and Mersky, 160-170.
59 U.S. Congress, Senate Committee on the Judiciary, History of the Committee on the
Judiciary, United States Senate, 1816-1981, Senate Document no. 97-18, 97th Cong., 1st
Sess. (Washington: GPO, 1982), p. iv.

---

CRS-14
Although their first nominations were never reported, second nominations of
Matthews, Hornblower, and Harlan in subsequent sessions of Congress were reported
to the full Senate. Only in the cases of Stanbery and Thornberry did nominations that
had been referred to committee fail to be reported out of committee on any occasion;
both of these nominations were associated with Associate Justice vacancies that
ceased to exist while the nominations were pending.
Additional Information on Nominations
This report provides two additional tables of information concerning Supreme
Court nominations. Table 3 shows, by President, the number of vacancies, number
of nominations, and disposition of nominations. Table 4 provides detailed
information on the course and fate of each of the 34 unsuccessful Supreme Court
nominations. A variety of sources were used to develop this table, as identified in
the table notes. Although most of these sources are widely available, some,
particularly older committee records, are located at the National Archives and
Records Administration. Among the official sources, the Journal of the Executive
Proceedings of the Senate of the United States of America and committee records,
where available, provided the most information. Where the Journal showed no
evidence of a debate or vote on the floor of the Senate, the indices of other official
sources were also checked for evidence of any other Senate activity related to the
nomination. These sources included the Congressional Globe, Congressional
Record, Annals of Congress, and Senate Journal. Where the table indicates that
there was no debate or further Senate action, there is no known official record that
provides additional information. A list of related literature follows Table 4.

---

CRS-15
Table 3. Supreme Court Nominations by President, 1789-2004
Confirmed,
and
Vacancies
Declined or
President
During
Confirmed
Not
Died Prior
(party)
Presidencya
Nominations
and Served
Confirmed
to Service
Washington
10
14
10
2
2
(Federalist)
J. Adams
3
4
3
0
1
(Fed)
Jefferson
3
3
3
0
0
(Democratic-
Republican)
Madison
2
5
2
1
2
(Dem-Rep)
Monroe
1
1
1
0
0
(Dem-Rep)
J. Q. Adams
2
2
1
1
0
(Dem-Rep)
Jackson
7
8
6
1
1
(Democratic)
Van Buren
2
2
2
0
0
(Dem)
W. H.
0
0
0
0
0
Harrison
(Whig)
Tyler (Whig)
2
9
1
8
0
Polk (Dem)
2
3
2
1
0
Taylor
0
0
0
0
0
(Whig)
Fillmore
2
4
1
3
0
(Whig)
Pierce (Dem)
1
1
1
0
0
Buchanan
2
2
1
1
0
(Dem)
Lincoln
5
5
5
0
0
(Republican)
A. Johnson
2b
1
0
1
0
(Dem)
Grant (Rep)
4
8
4
3
1
Hayes (Rep)
3
3
2
1
0

---

CRS-16
Confirmed,
and
Vacancies
Declined or
President
During
Confirmed
Not
Died Prior
(party)
Presidencya
Nominations
and Served
Confirmed
to Service
Garfield
1
1
1
0
0
(Rep)
Arthur (Rep)
2
3
2
0
1
Cleveland
2
2
2
0
0
(1) (Dem)
B. Harrison
4
4
4
0
0
(Rep)
Cleveland
2
5
2
3
0
(2) (Dem)
McKinley
1
1
1
0
0
(Rep)
T. Roosevelt
3
3
3
0
0
(Rep)
Taft (Rep)
6
6
6
0
0
Wilson
3
3
3
0
0
(Dem)
Harding
4
5
4
1
0
(Rep)
Coolidge
1
1
1
0
0
(Rep)
Hoover
3
4
3
1
0
(Rep)
F. D.
9
9
9
0
0
Roosevelt
(Dem)
Truman
4
4
4
0
0
(Dem)
Eisenhower
5
6
5
1
0
(Rep)
Kennedy
2
2
2
0
0
(Dem)
L. B.
4c
4
2
2
0
Johnson
(Dem)
Nixon (Rep)
4
6
4
2
0
Ford (Rep)
1
1
1
0
0
Carter (Dem)
0
0
0
0
0

---

CRS-17
Confirmed,
and
Vacancies
Declined or
President
During
Confirmed
Not
Died Prior
(party)
Presidencya
Nominations
and Served
Confirmed
to Service
Reagan
4
5
4
1
0
(Rep)
G. H. W.
2
2
2
0
0
Bush (Rep)
Clinton
2
2
2
0
0
(Dem)
G. W. Bush
0
0
0
0
0
(Rep) 2001-
2004
Totals 122
154
112
34
8
a Includes unfilled vacancies remaining from previous administration; some vacancies are counted for
more than one administration.
b Both positions were abolished, one until the Grant administration, the other permanently.
c One of these vacancies was the expected Associate Justice vacancy created when Johnson nominated
Abe Fortas for elevation to Chief Justice. When the Fortas nomination was not successful, this
expected vacancy ceased to exist.

---

CRS-18
Table 4. Supreme Court Nominations Not Confirmed, 1789-2004
Nominee
President
Date nomination
Confirmation
Committee votes, reports, and
Date(s) of Senate
Final disposition (vote)
received in
hearing
recommendations
debate
Senatea
date(s)b
William
Washington
Feb. 27, 1793
Nomination predates standing Judiciary Committee; no record of
No record of debate
Withdrawn, message
Patersonc
other committee referral
received Feb. 28, 1793
John Rutledge
Washington
Dec. 10, 1795
Nomination predates standing Judiciary Committee; no record of
Dec. 11, 15, 1795
Rejected (10-14), Dec. 15,
(for Chief
other committee referral
1795
Justice)d
Alexander
Madison
Feb. 4, 1811
Nomination predates standing Judiciary Committee; referred to
Feb. 5, 6, 7, 13, 1811
Rejected (9-24), Feb. 13,
Wolcotte
select committee on Feb. 7, 1811. The committee reported on
1811
Feb. 13, 1811; no record of committee hearings, vote or
recommendation
John J.
J. Q. Adams
Dec. 18, 1828
No record of
Reported on Jan. 26, 1829 with the
Jan. 29, 30, 1829;
Postponedg (23-17), Feb.
Crittendenf
(referred)
hearings
recommendation that the Senate not act on
Feb. 2, 3, 4, 5, 9, 12,
12, 1829
the nomination during that session
1829
Roger B.
Jackson
Jan. 15, 1835
No record of referral to the Judiciary Committee
Jan. 20, 1835; Feb. 2,
Postponed indefinitely
Taneyh
1835; Mar. 3, 1835
(24-21), Mar. 3, 1835
John C.
Tylerj
Jan. 9, 1844
No record of
Reported on Jan. 30, 1844; no record of
Jan. 31, 1844
Rejected (21-26), Jan. 31,
Spenceri
(referred)
hearings
committee vote or recommendation
1844
Reuben H.
Tyler
Mar. 13, 1844
No record of
Reported on June 14, 1844; no record of
June 15, 1844
Tabled (27-20), June 15,
Walworthk
(referred)
hearings
committee vote or recommendation
1844; withdrawn,
message received June 17,
1844
Edward Kingl
Tyler
June 5, 1844
No record of
Reported on June 14, 1844; no record of
June 15, 1844
Tabled (29-18), June 15,
(referred)
hearings
committee vote or recommendation
1844
John C.
Tyler
June 17, 1844
No record of referral to the Judiciary Committee
No record of debate
Withdrawn, message
Spencerm
(withdrawn on the
on the nomination
received June 17, 1844
same day)
Reuben H.
Tyler
June 17, 1844
No record of referral to the Judiciary Committee
Motion to consider
No record of further
Walworthn
the nomination was
action
objected to, June 17,
1844

---

CRS-19
Nominee
President
Date nomination
Confirmation
Committee votes, reports, and
Date(s) of Senate
Final disposition (vote)
received in
hearing
recommendations
debate
Senatea
date(s)b
Reuben H.
Tyler
Dec. 10, 1844
No record of
Reported on Jan. 21, 1845; no record of
No record of debate
Tabled, Jan. 21, 1845 (no
Walwortho
(referred)
hearings
committee vote or recommendation
record of vote);
withdrawn, message
received Feb. 6, 1845
Edward Kingp
Tyler
Dec. 10, 1844
No record of
Reported on Jan. 21, 1845; no record of
No record of debate
Tabled, Jan. 21, 1845 (no
(referred)
hearings
committee vote or recommendation
on the nomination
record of vote);
withdrawn, message
received Feb. 8, 1845
John M. Readq
Tyler
Feb. 8, 1845
No record of
Reported on Feb. 14, 1845; no record of
Unsuccessful motion
No further record of
(referred)
hearings
committee vote or recommendation
to consider
action
nomination, Feb. 26,
1845
George W.
Polk
Dec. 23, 1845
No record of
Reported on Jan. 20, 1846; no record of
Jan. 21, 22, 1846
Rejected (20-29), Jan. 22,
Woodwardr
(referred)
hearings
committee vote or recommendation
1846
Edward A.
Fillmore
Aug. 21, 1852
No record of
Reported on Aug. 30, 1852; no record of
Aug. 31, 1852
Tabled Aug. 31, 1852 (no
Bradfords
(referred)
hearings
committee vote or recommendation
record of vote)
George E.
Fillmore
Jan. 10, 1853
No record of referral to the Judiciary Committee
Jan. 14, 20, 24, 1853;
Postponed (26-25), Feb.
Badgert
Feb. 7, 11, 1853
11, 1853
William C.
Fillmore
Feb. 24, 1853
No record of
No record of committee vote; ordered
No record of debate
No record of action after
Micouu
(referred and
hearings
discharged on Feb. 24, 1853, the same day
discharge
discharged on the
as referred
same day)
Jeremiah S.
Buchanan
Feb. 6, 1861
No record of referral to the Judiciary Committee
Motions to consider
No record of further
Blackv
the nomination
action
unsuccessful, Feb. 6,
12, 21, 1861
Henry
A. Johnson
Apr. 16, 1866
No record of
No record of committee actionx
No record of debate
No record of action after
Stanberyw
(referred)
hearings
referraly
Ebenezer R.
Grant
Dec. 15, 1869
No record of
Reported adversely on Dec. 22, 1869; no
Dec. 22, 1869, Feb.
Rejected (24-33), Feb. 3,
Hoarz
(referred)
hearings
record of committee vote
3, 1870
1870

---

CRS-20
Nominee
President
Date nomination
Confirmation
Committee votes, reports, and
Date(s) of Senate
Final disposition (vote)
received in
hearing
recommendations
debate
Senatea
date(s)b
George H.
Grant
Dec. 2, 1873
Hearings held
Reported favorably on Dec. 11, 1873; no
Debated Dec. 11, 15,
Withdrawn, message
Williams (for
(referred Dec. 4,
Dec. 16, 17, 1873
record of committee vote
1873; nomination
received Jan. 8, 1874
Chief Justice)aa
1873)
after recommittal
Hearings held after recommittal;
recommitted to the
nomination withdrawn by the President;
Judiciary Committee,
committee returned nomination to the
Dec. 15, 1873
Senatebb
Caleb Cushing
Grant
Jan. 9, 1874
No record of
Reported favorably on Jan. 9, 1874dd
No record of debate
Withdrawn, message
(for Chief
(referred)
hearings
received Jan. 14, 1874
Justice)cc
Stanley
Hayes
Jan. 26, 1881
No record of
Addressed on Feb. 7, 1881; addressed and
No record of debate
No record of action after
Matthewsee
(referred)
hearings
postponed Feb. 14, 1881ff
committee
postponementgg
William B.
Cleveland
Sept. 19, 1893
No record of
Addressed on Sept. 25, 1893; October 25,
No record of debate
No record of further
Hornblowerhh
(referred)
hearings
30, 1893
action
William B.
Cleveland
Dec. 6, 1893
No record of
Addressed on Dec. 11, 14, 18, 1893;
Jan. 15, 1894
Rejected (24-30), Jan. 15,
Hornblower
(referred)
hearings
Reported adversely, Jan. 8, 1894ii
1894
Wheeler H.
Cleveland
Jan. 22, 1894
No record of
Addressed Jan. 29, 1894; Feb. 5, 6, 12,
Feb. 15, 16, 1894
Rejected (32-41), Feb. 16,
Peckhamjj
(referred)
hearings
1894; committee reportedly equally
1894
divided;kk reported without
recommendation, Feb. 12, 1894
Pierce Butlerll
Harding
Nov. 23, 1922
No record of
Reported Nov. 28, 1922
No record of debate
Placed on the Executive
(referred)
hearings
Calendar on Nov. 28,
1922; No record of further
actionmm
John J.
Hoover
Mar. 21, 1930
April 5, 1930oo
Reported adversely, Apr. 21, 1930pp
Apr. 28, 29, 30,
Rejected (39-41), May 7,
Parkernn
(referred)
1930; May 1, 2, 5, 6,
1930
7, 1930
John Marshall
Eisenhower
Nov. 9, 1954
No record of
No record of committee vote or report
No record of debate
No record of further
Harlan IIqq
(referred)
hearings
actionrr

---

CRS-21
Nominee
President
Date nomination
Confirmation
Committee votes, reports, and
Date(s) of Senate
Final disposition (vote)
received in
hearing
recommendations
debate
Senatea
date(s)b
Abe Fortas
L. Johnson
June 26, 1968
July 11, 12, 16,
Committee voted to approve on Sept. 17,
Sept. 24, 25, 26, 27,
Cloture motion defeated
(for Chief
(referred)
17, 18, 19, 20, 22,
1968uu; reported favorably on Sept. 20,
30, 1968; Oct. 1,
(45-43), Oct. 1, 1968;
Justice)ss
23, 1968; Sept.
1968
1968
Withdrawn, message
13, 16, 1968tt
received Oct. 4, 1968
Homer
L. Johnson
June 26, 1968
July 11, 12, 16,
No record of committee vote or report
No record of debate
Withdrawn, message
Thornberryvv
(referred)
17, 18, 19, 20, 22,
received Oct. 4, 1968xx
23, 1968; Sept.
13, 16, 1968ww
Clement F.
Nixon
Aug. 18, 1969
Sept. 16, 17, 18,
Committee voted 10-7 in favor of
Nov. 13, 14, 17, 18,
Rejected (45-55), Nov.
Haynsworth,
(referred)
19, 23, 24, 25, 26,
confirmation on Oct. 9, 1969aaa; reported
19, 20, 21, 1969
21, 1969
Jr.yy
1969zz
favorably on Nov. 12, 1969
G. Harrold
Nixon
Jan. 19, 1970
Jan. 27, 28, 29,
Committee voted 13-4 in favor of
Mar. 13, 16, 17, 18,
Rejected (45-51), Apr. 8,
Carswellbbb
(referred)
1970; Feb. 2, 3,
recommending for confirmation on Feb.
19, 20, 23, 24, 25, 26,
1970
1970ccc
16, 1970ddd; reported on Feb. 27, 1970
31, 1970; Apr. 3, 6,
7, 8, 1970
Robert H.
Reagan
July 7, 1987
Sept. 15, 16, 17,
5-9 against on Oct. 6, 1987; reported on
Oct. 21, 22, 23 1987
Rejected (42-58), Oct. 23,
Borkeee
(referred)
18, 19, 21, 22, 23,
Oct. 13, 1987ggg
1987
25, 28, 29, 30,
1987fff
a The date of the President’s nomination and the date the nomination is received in the Senate are often, but not always, the same. As used in this column, “referred” indicates that the
nomination was referred to the Senate Committee on the Judiciary on that date.
b The committee’s deliberations were held in closed session until the early twentieth century. CRS Report RL31989, Supreme Court Appointment Process: Roles of the President,
Judiciary Committee and Senate, by Denis Steven Rutkus.
c Nomination information from U.S. Congress, Senate, Journal of the Executive Proceedings of the Senate of the United States of America, vol. 1, pp. 134-135. (Hereafter cited as
nominee, Executive Journal.) Paterson was later nominated again and confirmed.
d Rutledge, Executive Journal, vol. 1, pp. 194-196. Rutledge served as Associate Justice from Feb. 15, 1790 through Mar. 5, 1791. Although Rutledge was never confirmed as Chief
Justice, he served in the position from Aug. 12, 1795 through Dec. 15, 1795 under a recess appointment by President Washington. (“Members of the Supreme Court of the United
States,” PDF document accessed at [http://www.supremecourtus.gov/about/about.html], visited Aug. 9, 2001.)
e Wolcott, Executive Journal, vol. 2, pp. 165-67.
f Crittenden, Executive Journal, vol. 3, pp. 622-623, 636-639, 643-644.
g Although the Senate did not take up a motion to “postpone indefinitely,” as it did on other similar occasions, it passed a resolution which had the effect of postponing. (See Crittenden,
Executive Journal, vol. 3, p. 644.)
h Taney, Executive Journal, vol. 4, pp. 459, 463, 465, 484. Taney was later nominated for Chief Justice and confirmed.
i Spencer was the subject of two nominations not confirmed. Information concerning the first nomination can be found at Executive Journal, vol. 6, pp. 207-208, 227, 229.

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j In 1844 and 1845, President John Tyler forwarded nine nominations involving only five men. Eight of the nine were not confirmed. Of those nominees who were not confirmed,
Walworth was nominated three times, Spencer and King were nominated twice, and Read was nominated once. Samuel Nelson was nominated once and confirmed.
k Walworth was the subject of three nominations not confirmed. Information concerning the first nomination can be found at Executive Journal, vol. 6, pp. 243-244, 332, 344-345,
353.
l King was the subject of two nominations not confirmed. Information concerning the first nomination can be found at Executive Journal, vol. 6, pp. 306, 332, 345.
m Spencer, Executive Journal, vol. 6, pp. 353-354.
n Walworth, Executive Journal, vol. 6, p. 354.
o Walworth, Executive Journal, vol. 6, pp. 355, 357, 387, 391.
p King, Executive Journal, vol. 6, pp. 355, 357, 387, 392.
q Read, Executive Journal, vol. 6, pp. 392, 396.
r Woodward, Executive Journal, vol. 7, pp. 10, 36-38.
s Bradford, Executive Journal, vol. 8, pp. 440-441, 448, 452.
t Badger, Executive Journal, vol. 9, pp. 10, 18-20, 26-28, 34. President Millard Fillmore indicated that he regarded the postponement of the Badger nomination as “equivalent to a
rejection” in his message nominating William C. Micou (p. 34).
u Micou, Executive Journal, vol. 9, pp. 34-36.
v Black, Executive Journal, vol. 11, pp. 260-261, 271, 278.
w Stanbery, Executive Journal, vol. 15, part 1, pp. 720-721.
x Senate Judiciary Committee minutes are available for the session during which this nomination was pending. Specific information regarding this nomination or any other nomination,
however, was not recorded. See U.S. Congress, Senate Committee on the Judiciary, “Senate Judiciary Committee, 39th-40th Congress, 1st sess.: Minutes,” RG 46.15, U.S. National
Archives.
y There is no record of action on this nomination. The Associate Justice position to which Stanbery was nominated was eliminated by statute after his nomination. He was nominated
and confirmed for U.S. Attorney General in July 1866.
z Hoar, Executive Journal, vol. 17, pp. 314, 316, 328-330.
aa Williams, Executive Journal, vol. 19, pp. 119, 166, 183, 188-189, 210.
bb The date of this action is not specified in committee records. See U.S. Congress, Senate Committee on the Judiciary, “Papers re Nominations (P-W),” drawer Sen: 43B-A5 12, RG
46.15, U.S. National Archives.
cc Cushing, Executive Journal, vol. 19, pp. 212-213, 218.
dd The official vote of the committee is not reported. According to one press account, the committee was unanimous (“The Chief Justiceship,” New York Tribune, Jan. 10, 1874, p. 1),
while another reported a waiving of the formal referral of the nomination (“The Chief Justiceship,” New York Times, Jan. 10, 1874, p. 1).
ee Matthews, Executive Journal, vol. 22, p. 469.
ff According to committee minutes, “The nomination of Stanly [sic] Matthews was taken up and on motion the further consideration of same was postponed until next Monday [Feb.
21, 1881].” The committee minutes contain no further report of action on the nomination during the remaining days of the 46th Congress. (U.S. Congress, Senate Committee on
the Judiciary, Senate Judiciary Committee 46th-48th Congress, 1st Session: Minutes, pp. 53-54.)
gg Matthews was later nominated by President James A. Garfield and confirmed.
hh Hornblower was the subject of two nominations not confirmed. The first was at the end of the first session of the 53rd Congress, and the second was at the beginning of the second
session of the same Congress. Executive Journal, vol. 29, part 2, pp. 138, 142, 243, 251, 339, 352-353.
ii The official vote of the committee was not recorded. The New York Times reported the vote as 7-4 against (“Unfavorable to Mr. Hornblower,” New York Times, Jan. 9, 1894, p. 1),
and the New York Tribune reported 5-3 against (“To Reject Mr. Hornblower,” New York Tribune, Jan. 9, 1894, p.2).
jj Peckham, Executive Journal, vol. 29, part 2, pp. 356, 408, 421-423.
kk The official vote of the committee was not recorded. The New York Times reported the vote as 5-5 (“Peckham’s Friends Hopeful,” New York Times, Feb. 13, 1894, p. 1).
ll Butler, Executive Journal, vol. 60, pp. 29, 63.
mm Butler was later re-nominated by President Harding and confirmed.
nn Parker, Executive Journal, vol. 69, part 1, pp. 525, 643, 655, 673, 682, 691, 695-696, 699, 705, 710, 718-722.

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oo See U.S. Congress, Senate Committee on the Judiciary, Confirmation of Hon. John J. Parker to be an Associate Justice of the Supreme Court of the United States, hearings, 71st Cong.,
2nd sess. (Washington: GPO, 1930).
pp The official committee vote was not reported in the Executive Journal. The New York Times reported a 10-6 vote against the nomination on Apr. 21, 1930 (“Committee, 10 to 6,
Rejects Parker,” New York Times, Apr. 22, 1930, pp. 1, 23). Another source provides a different vote count, 9-8, with the same outcome (Joseph P. Harris, Advice and consent
of the Senate; a Study of the Confirmation of Appointments [New York: Greenwood Press, 1968], p. 129).
qq Harlan, Executive Journal, vol. 96, p. 834.
rr Harlan was later re-nominated by President Eisenhower and confirmed.
ss Fortas, Executive Journal, vol. 110, pp. 332, 516, 521, 527, 529, 554-556, 569-570, 592.
tt U.S. Congress, Senate Committee on the Judiciary, Nomination of Abe Fortas, report to accompany the nomination of Abe Fortas, 90th Cong., 2nd sess., Exec. Rept. 8 (Washington:
GPO, 1968). See also U.S. Congress, Senate Committee on the Judiciary, Nominations of Abe Fortas and Homer Thornberry, hearings, 90th Cong., 2nd sess. (Washington: GPO,
1968).
uu The official committee vote was not reported in the Executive Journal. The New York Times reported an 11-6 vote in favor of the nomination on Sept. 17, 1968 (“Fortas Approved
by Senate Panel; Filibuster Looms,” New York Times, Sept. 18, 1968, pp. 1, 13).
vv Thornberry, Executive Journal, vol. 110, pp. 332, 592.
ww The Thornberry hearings were conducted in conjunction with the Fortas hearings. See U.S. Congress, Senate Committee on the Judiciary, Nominations of Abe Fortas and Homer
Thornberry, hearings, 90th Cong., 2nd sess. (Washington: GPO, 1968).
xx With the nomination of Abe Fortas to be Chief Justice withdrawn, there was no longer an Associate Justice vacancy.
yy Haynsworth, Executive Journal, vol. 111, pp. 590,768-770, 772-773, 776.
zz See U.S. Congress, Senate Committee on the Judiciary, Nomination of Clement F. Haynsworth, Jr., hearings, 91st Cong., 1st sess. (Washington: GPO, 1969).
aaa Vote tally from U.S. Congress, Senate Committee on the Judiciary, Nomination of Clement F. Haynsworth, Jr., report to accompany the nomination of Clement F. Haynsworth, Jr.,
91st Cong., 1st sess., Exec. Rept. 91-12 (Washington: GPO, 1969); date of vote from U.S. Congress, Senate Committee on the Judiciary, Legislative and Executive Calendar, 91st
Cong., 1st and 2nd sess. (Washington: GPO, 1970), p. 434.
bbb Carswell, Executive Journal, vol. 112, pp. 1, 79, 117, 121, 125, 127-130, 139-141, 144-148.
ccc See U.S. Congress, Senate Committee on the Judiciary, George Harrold Carswell, hearings, 91st Cong., 2nd sess. (Washington: GPO, 1970).
ddd Vote tally from U.S. Congress, Senate Committee on the Judiciary, Nomination of George Harrold Carswell, report to accompany the nomination of George Harrold Carswell, 91st
Cong., 2nd sess., Exec. Rept. 91-14 (Washington: GPO, 1970); date of vote from U.S. Congress, Senate Committee on the Judiciary, Legislative and Executive Calendar, 91st
Cong., 1st and 2nd sess. (Washington: GPO, 1970), p. 442.
eee Bork, Executive Journal, vol. 129, pp. 493, 665, 669-771.
fff See U.S. Congress, Senate Committee on the Judiciary, Nomination of Robert H. Bork to be Associate Justice of the Supreme Court of the United States, hearings, 5 parts, 100th Cong.,
1st sess. (Washington: GPO, 1987).
ggg U.S. Congress, Senate Committee on the Judiciary, Legislative and Executive Calendar, S.Prt. 100-153, 100th Cong., 1st and 2nd sess. (Washington: GPO, 1989). See also U.S.
Congress, Senate Committee on the Judiciary, Nomination of Robert H. Bork to be an Associate Justice of the United States Supreme Court, report to accompany the nomination
of Robert H. Bork, 100th Cong., 1st sess., Exec. Rept. 100-7 (Washington: GPO, 1987).

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Additional Resources
CRS Products.
CRS Report RL31989, Supreme Court Appointment Process: Roles of the President,
Judiciary Committee and Senate, by Denis Steven Rutkus.
CRS Multimedia MM70010, Supreme Court Appointment Process. Online Video
and Audio. Video and Audio Tapes, by Denis Steven Rutkus.
CRS Report RL32821, The Chief Justice of the United States: Responsibilities of the
Office and Process for Appointment, by Denis Steven Rutkus and Lorraine H.
Tong.
Other Resources.
Abraham, Henry J., Justices, Presidents, and Senators: A History of the U.S.
Supreme Court Appointments from Washington to Clinton, 4th ed. (Lanham,
MD: Rowman & Littlefield, 1999).
Ginsburg, Ruth Bader, “Confirming Supreme Court Justices; Thoughts on the
Second Opinion Rendered by the Senate,” University of Illinois Law Review,
vol 1988, pp. 101-117.
Harris, Joseph P., The Advice and Consent of the Senate: A Study of the
Confirmation of Appointments by the United States Senate (New York:
Greenwood Press, 1968).
Jacobstein, J. Myron, and Roy M. Mersky, The Rejected: Sketches of the 26 Men
Nominated for the Supreme Court but Not Confirmed by the Senate (Milpitas,
CA: Toucan Valley Publications, 1993). [The authors do not include the
Paterson nomination.]
Maltese, John Anthony, The Selling of Supreme Court Nominees (Baltimore: The
Johns Hopkins University Press, 1995).
Massaro, John, Supremely Political: The Role of Ideology and Presidential
Management in Unsuccessful Supreme Court Nominations (Albany, NY: State
University of New York Press, 1990).
Massey, Calvin R., “Getting There: A Brief History of the Politics of Supreme Court
Appointments,” Hastings Constitutional Law Quarterly, vol. 19, Fall 1991, pp.
1-21.
Sulfridge, Wayne, “Ideology as a Factor in Senate Consideration of Supreme Court
Nominations,” The Journal of Politics, vol. 42, no. 2, May 1980, pp. 560-567.
Thorpe, James A., “The Appearance of Supreme Court Nominees Before the Senate
Judiciary Committee,” in The First Branch of American Government: the

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United States Congress and Its Relations to the Executive and Judiciary, 1789-
1989, vol. 2, Joel Sibley, ed. (Brooklyn, NY: Carlson, 1991) pp. 515-546.
Tulis, Jeffrey K., “The Appointment Power: Constitutional Abdication: The Senate,
the President, and Appointments to the Supreme Court,” Case Western Reserve
Law Review, vol. 47, Summer 1997, pp. 1331-1357.

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