Contents

• The Confirmation Process
• Summary of Unsuccessful Nominations
• Factors Behind Unsuccessful Nominations
• Opposition to the President
• Opposition to the Nominee's Views
• Opposition to the Incumbent Court
• Senatorial Courtesy
• Allegations of Political Unreliability
• Perceived Lack of Qualification or Ability
• Interest Group Opposition
• Fear of Altering the Court
• Application of the Factors to the Miers Nomination
• The Committee on the Judiciary and Unsuccessful Nominations
• Additional Information on Nominations
• Additional Resources
• CRS Products
• Other Resources

Summary

Since 1789, Presidents have submitted 160 nominations to Supreme Court positions. Of these, 36 were not confirmed by the Senate. The 36 nominations represent 31 individuals whose names were sent forward to the Senate by Presidents (some individuals were nominated more than once). Of the 31 individuals who were not confirmed the first time they were nominated, however, six 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.

All but the most recent of 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 as warranted by events.

The announcement by Associate Justice Sandra Day O'Connor of her intention to retire and the death of Chief Justice William H. Rehnquist in the summer of 2005 created the need for two new Supreme Court appointments. The process for making these appointments led to three nominations to the Associate Justice position. The first two of these nominations were subsequently withdrawn by President George W. Bush, while the third—of Samuel A. Alito, Jr.—was confirmed by the Senate. The two withdrawn nominations—of John G. Roberts, Jr., and Harriet E. Miers—are the latest of 36 nominations to Supreme Court posts that have failed to be confirmed. These two nominations exemplify the range of this class of Supreme Court nominations. The Roberts nomination to Associate Justice was withdrawn as a formality so that the President could nominate him to be Chief Justice. Therefore, although the first nomination was not confirmed, the nominee was confirmed for another position. The Miers nomination, on the other hand, was withdrawn without the expectation that she would subsequently be nominated for another position on the Court. Consequently, neither this particular nomination nor the nominee was confirmed.

Over the course of the nation's history, approximately one-quarter of the presidential nominations to the Supreme Court of the United States have failed to place a new Associate or Chief Justice on the bench. Of the 160 nominations to the Court since 1789, 116 individuals were confirmed and served, 7 individuals were confirmed and declined to serve, 1 confirmed nominee died before he could take his seat, and 36 nominations were not confirmed. This report discusses this last group of Supreme Court nominations. These 36 nominations that did not lead to confirmation represent 31 individuals whose names were sent forward to the Senate by Presidents (some of those 31 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 (see Table 4). 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, 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.

Summary of Unsuccessful Nominations

The 36 Supreme Court nominations not confirmed by the Senate represent 31 individuals. Six of these 31 were later re-nominated and confirmed for positions on the Court. Of the other 25 nominees, four were nominated and failed confirmation more than once. Table 2 provides summary information concerning unsuccessful nominations.

The first of the six 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 beginning of the following Congress a few days later, and Paterson was immediately confirmed.⁴ In this case, the failure of the first nomination was due to what might be considered formalities, rather than opposition to the nomination itself.

The last of these six nominations, that of John G. Roberts, Jr., to be an Associate Justice, might be similarly categorized. On July 29, 2005, President George W. Bush nominated Roberts to replace retiring Associate Justice Sandra Day O'Connor.⁵ Subsequently, on September 3, Chief Justice William H. Rehnquist died. On September 6, President Bush withdrew Roberts's nomination to be Associate Justice and nominated him to be Chief Justice. The Senate confirmed this nomination on September 29, 2005.⁶

All of the other unsuccessful nominations faced opposition in the Senate.

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 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.⁷ Butler was first nominated to the high court during the third session of the 67^th 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 83^rd 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,⁸ 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.⁹ 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 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.¹⁰

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.¹¹ 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.¹² At the time the bill was initiated and also at the time its final version was signed, only one position on the Court, that to which Stanbery was nominated, was vacant. 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 to eight.¹³

Several scholars have suggested that, by reducing the number of Associate Justice positions,¹⁴ 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.¹⁵ 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.

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 20^th 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.¹⁶

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. Two nominations that were not confirmed by the Senate—the first nomination of William Paterson and the nomination of John G. Roberts to be Associate Justice—do not appear to fall into any of the following categories. As discussed above, in both cases the nomination was withdrawn as a formality and the nominee was then renominated and confirmed.

Opposition to the President

Opposition to the nominating President played a role in at least 16 of the 36 nominations that were not confirmed. Many of the 16 were put forward by a President in the last year of his 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 19^th century Presidents when the post-election period lasted from early November until early March. Four one-term Presidents made nominations of this kind. President John Quincy Adams nominated John J. Crittenden in December 1828, after losing the election to Andrew Jackson.¹⁷ 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.¹⁸ President Millard Fillmore nominated George E. Badger and William C. Micou after Franklin Pierce had been elected to replace him.¹⁹ Finally, President James Buchanan forwarded the name of Jeremiah S. Black to the Senate less than a month before Abraham Lincoln's inauguration.²⁰ 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.²¹

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.²² The committee report accompanying the nomination of Abe Fortas to be 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.²³

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.²⁴

Alexander Wolcott's nomination to the Court 15 years later, by President James Madison, was the next to be rejected by the Senate. Wolcott's strong enforcement of the controversial embargo and non-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.²⁵

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.²⁶

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 have been cited as the principal reason for the failure of his nomination.²⁷

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."²⁸ 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's presidency. The Senate opposed the nomination because of Matthews's 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.²⁹

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.³⁰ During the succeeding session, Butler was re-nominated and confirmed, with 61 Senators in favor and eight opposed.³¹

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.³² 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.³³ 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.³⁴

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.'"³⁵ 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."³⁶ Opposition to Fortas was also based on money he 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.³⁷ 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.³⁸

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."³⁹ A more persistent theme in the dissent, however, was a perceived lack of competence and qualification for the position.⁴⁰

Robert H. Bork, nominated by President Reagan in 1987, was also 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.⁴¹

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.⁴² In addition, during the confirmation hearings, another Senator pointedly brought up a Warren Court opinion with which he disagreed, Mallory v. United States,⁴³ although, as he acknowledged, the case had preceded Fortas's appointment as Associate Justice by eight years.⁴⁴

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.⁴⁵ 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.⁴⁶ 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.⁴⁷ No unsuccessful Supreme Court nomination since that time has been attributed to senatorial courtesy.⁴⁸

Allegations of Political Unreliability

One unsuccessful nominee was opposed in the Senate in part because of the perception that he was a "political chameleon."⁴⁹ 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."⁵⁰ 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 1861.⁵¹

Perceived Lack of Qualification or Ability

As noted previously, President Madison's nomination of Alexander Wolcott⁵² and President Nixon's nomination of G. Harrold Carswell⁵³ were opposed in part because of their perceived lack of qualification and ability. President Grant's nomination of George H. Williams faced similar opposition.⁵⁴ Williams also suffered from allegations of ethical misconduct.⁵⁵

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.⁵⁶ Interest groups testified in opposition to (and, in some cases, support of) many of the Supreme Court nominations that were not confirmed in the 20^th century, including 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 20 for the Bork nomination.⁵⁷ 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.⁵⁸ Observers of the Supreme Court confirmation process 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.⁵⁹

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.⁶⁰

Application of the Factors to the Miers Nomination

Scholars have only begun to assess the unsuccessful nomination of Harriet E. Miers to be Associate Justice. Analysis of the factors contributing to the nomination's failure is therefore preliminary. Both Miers and President Bush cited the Senate requests for White House documents as the chief reason for the withdrawal of her nomination.⁶¹ Journalistic accounts of the Miers nomination, however, have suggested that a combination of factors led to the withdrawal.⁶² Many of the factors identified by Abraham seem to apply in the Miers case. Opposition to the nominee's perceived views, for one, appears to have played a role. For example, a position Miers took in a 1993 speech reportedly contributed to opposition to her nomination by at least one conservative interest group, and it raised concerns for some conservative Senators.⁶³ In addition, some conservative observers expressed concern that Miers, a self-identified conservative, would be ideologically unreliable. Addressing concerns about Miers's views and ideological reliability was made more difficult for her supporters by the relatively sparse available record of her views on controversial constitutional issues. As a close legal advisor to President Bush, much of her most relevant writing in these areas would likely be found in White House documents, and these documents were not made publicly available because of their confidential nature.⁶⁴

Three other factors identified by Abraham—perceived lack of qualifications, interest group opposition, and fear of altering the Court—also seemed to contribute to the nomination's failure. Some observers raised questions about Miers's qualifications for the position, and these concerns appear to have intensified as she met individually with Senators. Furthermore, her response to the questionnaire of the Senate Committee on the Judiciary was seen as inadequate by the chair and ranking member of that committee.⁶⁵ Miers also faced interest group opposition, but this case was unusual because the opposition came predominantly from conservative groups that had previously been allied with the President who submitted the nomination.⁶⁶ Finally, in a variation on Abraham's "fear of altering the Court" factor, it seemed that some conservatives feared that Miers, if confirmed, would not alter the Court, as they had long hoped an appointee of a Republican President would do.⁶⁷

In addition to the factors identified by Abraham, another factor that may have played a part in the failure of this nomination was the close proximity of the nominee to the President. Miers's position in the Bush Administration, as Counsel to the President, raised questions for some about whether she would be able to rule fairly on presidential power issues that might come before the Court.⁶⁸ In addition, many documents related to her work for the President, which might have shed light on her views and qualifications, were not made available by the White House, despite bipartisan requests.

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.⁶⁹

Of the unsuccessful nominations that have been referred to the Judiciary Committee, seven 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 Thornberry nomination had not been reported by the Judiciary Committee. The sixth of these nominations was that of John G. Roberts to be Associate Justice. Before the Judiciary Committee acted on this nomination, Chief Justice William H. Rehnquist died, creating a vacancy. Roberts's nomination to be Associate Justice was withdrawn, shortly before hearings on the nomination were to begin, so that he could be nominated to be Chief Justice. The last of this group of seven nominations is that of Harriet E. Miers. Although the Judiciary Committee had scheduled hearings on her nomination to be Associate Justice, her nomination was withdrawn in the face of opposition before any formal committee action.

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, and Roberts's nomination to be Chief Justice during the same session of Congress was also reported to the full Senate. Only in the cases of Stanbery, Thornberry, and Miers did nominations that had been referred to committee fail to be reported out of committee on any occasion. The first two of these nominations were to fill Associate Justice vacancies that ceased to exist while the nominations were pending,⁷⁰ and the last, as just mentioned, was withdrawn prior to any formal committee action.

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 36 unsuccessful Supreme Court nominations.⁷¹ 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.

Additional Resources

CRS Products

CRS Report RL31989. Supreme Court Appointment Process: Roles of the President, Judiciary Committee, and Senate, by [author name scrubbed].

CRS Report RL32821. The Chief Justice of the United States: Responsibilities of the Office and Process for Appointment, by [author name scrubbed] and [author name scrubbed].

CRS Report RL33247, Supreme Court Nominations: Senate Floor Procedure and Practice, 1789-2011, by [author name scrubbed] and [author name scrubbed].

CRS Report RL33225, Supreme Court Nominations, 1789 to the Present: Actions by the Senate, the Judiciary Committee, and the President, by [author name scrubbed] and Maureen Bearden (pdf).

Other Resources

Abraham, Henry J. Justices, Presidents, and Senators: A History of the U.S. Supreme Court Appointments from Washington to Clinton, 4^th 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.

Greenburg, Jan Crawford. Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court (New York: Penguin Press, 2007).

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). (Note: The authors do not include the Paterson nomination.)

Maltese, John Anthony. The Selling of Supreme Court Nominees (Baltimore, MD: 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 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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Footnotes