History Of Failed Supreme Court Nominations Goes All The Way Back To George Washington10:58
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U.S. Supreme Court nominee Robert H. Bork testifies before the Senate Judiciary Committee on the first day of his confirmation hearings on Capitol Hill, Sept. 16, 1987. (Charles Tasnadi/AP)
U.S. Supreme Court nominee Robert H. Bork testifies before the Senate Judiciary Committee on the first day of his confirmation hearings on Capitol Hill, Sept. 16, 1987. (Charles Tasnadi/AP)

President Trump's Supreme Court pick, Brett Kavanaugh, could replace Justice Anthony Kennedy, who is retiring. But as history shows, just because a president nominates a justice doesn't mean they'll always make it to the court.

Here & Now's Jeremy Hobson takes a look back at failed Supreme Court nominations with Ed Ayers (@edward_l_ayers) and Joanne Freeman (@jbf1755), co-hosts of the podcast "BackStory," which is produced at Virginia Humanities.

Since it was established in 1789, presidents have nominated 162 people to the Supreme Court, but only 125 have been confirmed. Turns out, there’s a long history of fights over who gets on the bench, Ayers says.

“As you know, the two-party system is in turmoil. People ... simply aren't going to give the other guys a chance to make something,” he says. “And of course, we all know this is such outsize importance because it's for life. And so, as ugly as other fights are, there's nothing quite like a Supreme Court justice fight.”

Interview Highlights

On George Washington’s failure to get a nomination confirmed

Joanne Freeman: “His name was John Rutledge. He was from South Carolina. He gave a speech in South Carolina in which he declared something along the lines of he loved President Washington dearly, but he would wish General Washington dead if he signed this Jay Treaty that was pending. So people in the Senate who liked the Jay Treaty and were sided with Washington — were on his side politically speaking — were not really thrilled with Mr. Rutledge. So he actually was not approved by the Senate. He was also not in wonderful health, so I think he resigned before he even knew that he'd been rejected, which probably was best for Mr. Rutledge.”

“The court nowadays, I think it's busier, and it's doing far more momentous decisions than it did in those early years."

Joanne Freeman

On how John Jay declined President Adams’ offer to return to the court

JF: “He was chief justice of the court, and he served for a time, [then] he stepped down. He went about doing other political business, and John Adams then was the next president, and Adams went to Jay, and he essentially said, ‘You were really good at this job. Would you come back?’ And Jay actually said, ‘No. I didn't love that job.’

“The court nowadays, I think it's busier, and it's doing far more momentous decisions than it did in those early years. So I think that Jay to some degree was bored because they weren't doing a lot in those first few years. And I have to add that because Jay did not accept that nomination, we ended up with John Marshall who's really one of our most renowned chief justices.”

On the first stolen seat on the court

JF: “It is the first, as far as I know, the first stolen seat. It's at the end of [John Quincy] Adams' presidency, and he nominates John Crittenden who's a lawyer from Kentucky, and the Jacksonian supporters who know that [Andrew Jackson's] just been elected president basically do not want Adams to be able to appoint a Supreme Court justice, so they pass a resolution that essentially says it is — and this is the word they use — 'inexpedient' to consider this justice at this particular moment. … And so, they don't vote one way or another. He just does not come up, and Jackson comes in, assumes the presidency, and he's the one who appoints a justice.”

On Andrew Jackson’s nomination of Roger B. Taney

Ed Ayers: “Well, Taney has a number of distinguishing achievements. First, he was the first cabinet member to be rejected by the Senate, and then he went on to be rejected by the Senate as the associate justice of the Supreme Court. Now this is because of the Bank War, and that Taney was seen as a kind of pawn of Jackson in dismantling the bank of the U.S. And so it created a whole other party, the Whig Party, and they were determined that Roger B. Taney was not going to have a position of authority. But things changed a little bit. The Democrats got a slim majority, and Jackson came back again said, 'Well how about this? What do you say we make him chief justice?

“And he did [become chief justice], and then he ruled for decades. Now there were trivial accomplishments that he had, like he was the first to wear regular pants underneath the robes … And he also had the idea that he would assign decisions to associate judges to give. It wouldn't just always be the Supreme Court chief justice because he had stage fright apparently. But of course, his name goes down in infamy because almost 20 years later he is the one who [ruled in] … the infamous Dred Scott decision, which declared that black Americans had no right that white Americans were bound to respect. So it shows, you know, he's turned down twice, finally anointed, and then plays an outsize role in American history.”

"As ugly as other fights are, there's nothing quite like a Supreme Court justice fight.

Ed Ayers

On Ronald Reagan’s failed nomination of Robert Bork in 1987

EA: “He had one mark against him: He was an academic. And so he had written things down, he had written articles, he had said for a long time what he thought about stuff. And so, they went back through his record, ransacked his CV and found things that he'd written expressing reservations about the Civil Rights Act and Roe v. Wade and so forth. So the Democrats were loading for bear even before he showed up. And they had reasons to believe, ‘OK, this guy is dedicated to a judicial philosophy of originalism that we are bound by what the founders intended by their words, and we can't go beyond that.’ So this was kind of the questionnaire turned up several notches, and [they had] these public hearings on television, and we know the salutary effect that broadcasting these things has.”

On why White House Counsel Harriet Miers wasn’t confirmed when George W. Bush nominated her to the court in 2005

JF: “There were three main reasons why. People, actually Republicans from Bush's own party, did not support her nomination. One was that she had no prior experience as a judge. One point against her for some was that she had a close relationship with the president, and what would that mean? But the real reason why people opposed her, and in particular why Republicans opposed her, was people didn't know where she stood on key issues, and in particular, they didn't know where she stood on abortion. So as Sen. [Rick] Santorum said at the time, Bush had nominated quote, ‘a blank slate.’ So some conservatives were really against the nomination because they were thinking about Roe v. Wade, and they wanted someone who reliably would overturn it. This became a heated issue, and in the end, her nomination was withdrawn. There's a little fuzziness about whether President Bush withdrew it or about whether Harriet Miers withdrew it on her own, that's the way that Bush put it out in a statement. But one way or another her nomination was withdrawn.”

This segment aired on July 5, 2018.

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