The year in which the Senate rejected George H. Williams for a Supreme Court position was reported incorrectly on The Federal Page yesterday. He was rejected in 1873. (Published 9/16/87)
Judge Robert H. Bork is expected to face rough going today when the Senate Judiciary Committee takes up his nomination to the Supreme Court. The administration, in supporting the Bork nomination, has warned against politicizing the confirmation process.
But throughout the court's almost 200-year history, politics has played a role. Presidents have nominated 139 people to the court and 26 have failed to be confirmed. A factor in at least 12 of the rejections was the "lame duck" status of the nominating president. In those cases, the Senate sought to "save" the vacancy for the next president to fill, particularly if the party controlling the Senate expected victory for its candidate in the next election.
The Senate has rejected only two nominees -- George H. Williams in 1973 and G. Harrold Carswell in 1970 -- primarily because they were considered professionally unqualified.
Two other rejections -- both during the administration of President Grover Cleveland -- were made solely because of "senatorial courtesy." In these cases, senators made suggestions to the president on potential nominees, but the president rejected the advice. The Senate in turn rejected the president's choices.
Sketches of nominees rejected by the Senate appear on this page today and Wednesday. They include: Supreme Court Nominees Rejected By the Senate Of 139 Named, 26 Failed JEREMIAH S. BLACK JOHN C. TYLER JAMES MADISON John Rutledge, 1795
When George Washington nominated John Rutledge, who had been an associate justice, to become chief justice in July 1795, Washington was so sure of Senate confirmation that he had the commission papers in hand. An author of the first draft of the Constitution and a highly respected lawyer, Rutledge seemed a shoo-in. But two weeks after his nomination, the South Carolinian boldly criticized a controversial 1795 treaty between the United States and England, and a battle over his confirmation began.
To many of the Federalist senators who supported the treaty, Rutledge's statements about the sensitive matter raised second thoughts about his judgment and views on foreign policy. In December, the Senate rejected him 14 to 10 because of opposition from his own Federalist party as much as from the Democratic Republicans.
Alexander Wolcott, 1811
A Connecticut leader of the Democratic Republican party, Alexander Wolcott was the first nominee rejected partly because of a mediocre judicial career. When President James Madison submitted Wolcott's name to the Senate on February 1811, one Washington newspaper correspondent called the choice "abominable."
But the debate was not free of politics. Wolcott was also criticized for his strict enforcement of trade laws during his career as customs collector. The Senate, although controlled
28 to 6 by Madison's and Wolcott's party, rejected Wolcott nine days after his nomination. 24 to 9.
John J. Crittenden, 1829 When a justice died in December 1828, lame-duck President John Quincy Adams was presented with the opportunity to place a Whig justice on the court before Democratic Republican President-elect Andrew Jackson took over. But the moderate nominee, former senator John J. Crittenden, and his ideas about federal supremacy encountered stiff opposition from the Senate, which was looking ahead to Jacksonian populism.
Despite Crittenden's status as a Senate alumnus, his nomination was postponed indefinitely in February 1829, a few weeks before Jackson's inauguration. For the first time, the Senate "saved" a court vacancy for an incoming president to fill. Roger B. Taney, 1835 Senate Whigs tried everything -- including legislating the vacant seat out of existence -- to keep Democratic Republican President Andrew Jackson from appointing his trusted ally Roger B. Taney to the court in 1835. Debate centered largely around the constitutionality of the Bank of the United States, which Whigs argued was a financial necessity and Democratic Republicans opposed as undemocratic.
Conservative opponents defeated Taney by postponing consideration of his nomination until the last day of the Senate's session in March 1835. But Jackson submitted Taney's name again in December, this time to replace Chief Justice John Marshall. Although Senate opponents fought against Taney to the bitter end, they were unable to muster enough opposition, and Taney was confirmed as chief justice 29 to 15. John C. Spencer, 1844 When a vacancy opened in 1843, President John C. Tyler nominated New York lawyer John C. Spencer, in the first of six opportunities he would have to appoint a justice. But Spencer was also the first of five Tyler nominees who would be defeated by the Whig-controlled Senate.
Although Spencer's legal credentials were unquestioned, Whig senators regarded him as a political opportunist who had worked his way up to the posts of secretary of war and secretary of the treasury through treachery and betrayal. Crippled by his unpopularity and strong Whig opposition, Spencer was rejected in January 1844 by a vote of 26 to 21. Reuben H. Walworth, 1844 After one failure to fill a court vacancy, Tyler, an increasingly unpopular president, in March 1844 nominated New York Chancellor Reuben H. Walworth. Like the previous nominee, Walworth was the victim of personal hostility of Senate Whigs and was never criticized for legal incompetence. So "odious" was Walworth, one Whig senator wrote to a friend, that the Senate, when Walworth's party was in control, voted to abolish the position of chancellor.
The Senate, unsure about Walworth's personality and reluctant to confirm any nominee of a president who was unlikely to be his party's nominee in the upcoming election, tabled the nomination before its midyear adjournment and never voted. Tyler later withdrew the nomination. Edward King, 1844 (twice) In April 1844, another vacancy opened, giving Tyler a second vacancy to fill. But Tyler's unsuccessful confrontation with the Whig Congress continued when the Senate in June postponed consideration of his third nominee, Philadelphia lawyer Edward King. Again, the Senate objected personally to Tyler, not to the nominee's legal credentials. Tyler resubmitted King's name in December, but the Senate refused to act on the nomination. Tyler withdrew the choice.
John M. Read, 1845 Tyler's final nominee was Philadelphia attorney John M. Read, who had support among both Whigs and Democrats in the Senate. But by the time of the nomination in February 1845, Tyler was a lame duck and the Whigs had lost the presidency to James K. Polk. The Senate refused to act and left the vacancy for Polk to fill.
George W. Woodward, 1846 With the Senate back in the hands of a Democratic majority, President Polk in December 1845 nominated Pennsylvania Judge George W. Woodward to fill the vacancy left from the Tyler presidency, confident that his nominee would be confirmed easily. But Woodward had crossed party lines by supporting the American Nativist agenda, which called for limited immigration and discrimination against new ethnic groups, and the nomination was in trouble.
Woodward's views sparked a loud public debate that ended only when the Senate, despite Polk's insistence, rejected the nomination 29 to 20. Only 19 of the Senate's 31 Democrats supported the nomination.
Edward A. Bradford, 1852 Millard Fillmore, like John Tyler, ascended to the presidency when his predecessor died in office. And like his Whig predecessor, Fillmore had to contend with a Democratic Senate reluctant to approve his agenda, including his Supreme Court nominations. In August 1852, Fillmore made the first of three unsuccessful nominations when he sent the name of Louisiana lawyer Edward A. Bradford to the Senate. But the lawmakers, unsympathetic to the efforts of the unelected president and hoping to delay the issue until after the November election, refused to take action on the nomination before adjourning. Bradford died before the Senate reconvened.
George E. Badger, 1853 The Senate had a long tradition of approving former senators nominated to the court without serious question. But the Democratic Senate permanently postponed consideration of Fillmore's second nominee, former North Carolina senator George E. Badger, by a vote of 26 to 25 in February 1853. One prominent newspaper protested that "there was no possible objection . . . except that he is a Whig." The Senate preferred to have Democratic President-elect Franklin Pierce fill the vacancy.
William C. Micou, 1853 Despite two rebuffs by the Senate and his lame-duck status, Fillmore tried a third time in February 1853 to put a Whig on the court, this time nominating Louisiana lawyer William C. Micou. But the Senate again refused to act, "saving" the vacancy for incoming Democratic President Pierce to fill.
Jeremiah S. Black, 1861 When a court vacancy opened in February 1861, Democratic President James Buchanan had only one month left in his term before Republican Abraham Lincoln took office. Republicans insisted that the nomination be made by Lincoln, but Buchanan named Jeremiah S. Black, his secretary of state and former attorney general. Buchanan gambled that Black, a moderate, might be agreeable to both the North and South.
But Buchanan's strategy failed. Black, a Pennsylvanian, was attacked by Northern abolitionists who challenged his opposition to the outright elimination of slavery. Buchanan's efforts to satisfy southerners were undermined by the rapid loss of southern senators as their states left the Union. The nomination was defeated later that month 26 to 25.