The founding fathers originally intended that Congress, not the president, make all nominations. The Constitution’s “advise and consent” provision was a compromise between those who wanted Congress to do all the appointing and those who thought it should be the president’s job. We ended up giving the Senate only the power to say “yea” or “nay.”
In our young nation’s history, there have been 141 Supreme Court nominees; 27 of them, or 19 percent, were rejected or withdrawn. There have been some 700 Cabinet officers nominated, of which 4 percent have been rejected or withdrawn. Here are a few memorable nominations, from our nation’s first to some of its most contentious.
1789 The first presidential nomination was George Washington’s choice of William Short as minister to the Court of France — essentially an ambassador. John Jay, who had headed the Office of Foreign Affairs under the old Congress of the Confederation, hand-carried the nomination to the Senate. Some senators wanted Washington to appear before them to defend his nominee. Short was well known, a career diplomat who was Jefferson’s secretary in France, but the Senate, even at that early date, flexed its muscles. Washington, to his credit, refused. Short was confirmed by secret ballot two days later.
1831 When President Andrew Jackson nominated Sen. Martin Van Buren of New York to serve as minister to Great Britain, his Senate colleagues didn’t take kindly to the choice. Opponents described Van Buren as a schemer and a master manipulator as he waged internal warfare for control of the political machine encompassing all of New York, the Bucktails. Many senators took umbrage at his methods, which also upset the chamber’s hierarchy and Vice President John C. Calhoun. When Van Buren’s confirmation vote ended in a tie and Calhoun was called upon to break it, he voted no.
Jackson was so angry that his vice president had voted down his nominee that he ended up dropping Calhoun in the next convention and chose Van Buren as his vice president. Van Buren, of course, went on to become president in 1837.
1843 If you think Hagel has had a tough nomination battle, consider President John Tyler’s nomination of Caleb Cushing to be Treasury secretary. In those days, because the president’s term ended at the same time as Congress’s, he would go to Capitol Hill on the last days of the session and sit just off the Senate floor to submit nominations, sign bills and work out compromises with the chamber’s leadership.
When Cushing was rejected by the Senate because of political inconsistencies, Tyler, sitting nearby, submitted Cushing’s name again, right on the spot. A second time, the Senate voted down Cushing. Yet again Tyler sent his name to the Senate. And yet again Cushing was rejected, each time by a larger margin — 27 to 19, 27 to 10 and 29 to 2. The vote total diminished because of the lateness of the hour; some senators simply went home.
The standoff continued that night when Tyler nominated Henry A. Wise as ambassador to France. He was also rejected three times, partly to obstruct Tyler’s aims but also because Wise was a Jacksonian Democrat who had broken with the party. He had even fought a duel once with his competitor for a seat in Congress.
The Senate ended up turning down four of Tyler’s Cabinet nominees and four of his Supreme Court picks. Cushing’s three-time rejection was the worst one-day loss of Cabinet nominations by any president before or since.
1925 President Calvin Coolidge nominated Charles Warren to be attorney general right after the Teapot Dome bribery scandal and other business-related wrongdoing. Warren was accused of being associated with the “Sugar Trust” — the American Sugar Refining Company, which owned and controlled 98 percent of sugar-processing capacity in the United States and was accused of unfair practices. The nomination created a big fight in the Senate, and the vote ended up evenly split. Meanwhile, Vice President Charles G. Dawes had gone to take a nap. He was roused and tried to rush to the Capitol to break the tie, but it was too late; one Warren supporter had changed his mind, and the nomination failed.
1968 In modern times, there have been seven Supreme Court nominees who have been withdrawn or not confirmed. Robert Bork’s confirmation fight in 1987 was among the fiercest, but one of the first contentious battles was over the nomination of Supreme Court Justice Abe Fortas to become chief justice. President Lyndon B. Johnson had persuaded Justice Arthur Goldberg to resign his seat to become ambassador to the United Nations so that Johnson could appoint Fortas to the court in 1965. The president thought the court could rule some of his Great Society reforms unconstitutional, and he felt Fortas, a longtime friend, would let him know if the justices were leaning that way.
When Chief Justice Earl Warren retired in 1968, Johnson nominated Fortas to replace him. Fortas was the first sitting justice nominated for chief justice to appear before the Senate, where he faced hostile questioning about his relationship with Johnson and was accused of consulting with the president about political matters while he was on the court. The debate, short by today’s standards, lasted less than a week, followed by the first filibuster of a Supreme Court nominee. The final tally was 45 to 43, far short of the 67 needed for cloture. Later that day, Fortas asked Johnson to withdraw his name for chief justice, but he remained on the court as an associate justice.
In the 20th century, only three Cabinet nominees have been voted down: the aforementioned Warren; President Dwight Eisenhower’s Lewis Strauss for commerce secretary in 1959, who after 16 days of hearings was rejected by a vote of 49 to 46; and Sen. John Tower, President George H.W. Bush’s nominee for defense secretary, who was defeated on a 53 to 47vote after five weeks of hearings in 1989.
Fierce nomination fights have been going on since the early days of the republic. They not only involve Supreme Court nominees and Cabinet officers, but also assistant secretaries, ambassadors, leaders of regulatory agencies and bureaus, on down to advisory commissions. The founding fathers wanted to avoid a monarchy and instead created anarchy.
Much-needed legislation to reform the nomination process passed in the last Congress, cutting the number of positions that require Senate confirmation and shortening the vetting process. The White House is drafting new procedures for nomination forms and vetting. This is a step in the right direction, and the revised process hopefully will be simpler and smoother. But until then, the White House would be wise to make sure Vice President Biden is wide awake in case Hagel’s confirmation comes down to a tie.
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