In the almost 200-year history of the Supreme Court, the Senate has refused to confirm nearly one-fifth of the 139 nominees. Political differences accounted for most of the rejections, standard reference works show.
The current debate over Judge Robert H. Bork has partially revolved around what the White House has called a "novel argument" -- that it might be appropriate for a senator to oppose Bork on the grounds that his confirmation would affect the "balance" on the Supreme Court.
Bork's opponents have said he would tilt the court sharply to the right, providing the vote to reverse key decisions on civil rights, abortion, school prayer and other social issues. To Bork supporters, it all comes down to politics: Liberals object because Bork does not meet their ideological standards.
Sketches of nominees rejected by the Senate conclude with:
Henry Stanbery, 1866
Democratic President Andrew Johnson's attempts to carry out Lincoln's policies of reconstruction and reconciliation led him into heated conflict with a radical Republican opposition in the Senate. These senators were determined not to permit Johnson to appoint a justice when a vacancy opened in 1865. Most senators liked Johnson's nominee, Attorney General Henry Stanbery, but radical Republicans hated Johnson so much that they engineered the passage of legislation to reduce the number of justices from 10 to seven as vacancies occurred. The seat for which Stanbery had been nominated in April 1866 was thus abolished, and his nomination was never considered.
Ebenezer R. Hoar, 1869
President Ulysses S. Grant thought he would encounter little resistance in the overwhelmingly Republican Senate when he nominated Attorney General Ebenezer R. Hoar in December 1869. But the radical Republican faction immediately opposed the nomination because Hoar had opposed the impeachment of President Johnson and because he proposed an expanded civil service system as an alternative to government patronage.
When a second vacancy opened on the same day as Hoar's nomination, the Senate decided that appointing justices was too important to be left to the president and submitted its own list of acceptable candidates to the White House -- a list that included only the name of Secretary of War Edwin Stanton. Grant decided to make a deal by nominating Hoar and Stanton to the two openings. Stanton was confirmed within hours, but when he died of a heart attack four days later, Hoar's chance was gone. He was turned down 33 to 24.
George H. Williams, 1873
After the chief justice died early in 1873, Grant nominated Attorney General George H. Williams, who was regarded as a legal mediocrity despite his remarkably clean record amid the corruption that plagued the Grant administration. So widespread was the outcry against Williams' dismal judicial career that the Senate Judiciary Committee voted to reconsider its approval of the nomination. The Senate killed the nomination in December simply by refusing to act on it until the embarrassed nominee asked Grant to withdraw his name.
Caleb Cushing, 1874
Grant tried again to appoint a chief justice and in January 1874 sent the name of Massachusetts attorney Caleb Cushing to the Senate. Despite being 74 years old, Cushing was judged to have a sound and accomplished legal mind. It was his position on slavery that many Republican senators objected to. They accused Cushing of pro-slavery sentiment and charged that he was too quick to switch his allegiance to the Union and change his views on slavery when the North won the Civil War. When captured Confederate documents revealed that Cushing had corresponded with Confederate President Jefferson Davis and even recommended a friend for a position in the Confederate government, Grant quickly withdrew his nomination and spared Cushing an overwhelming defeat.
Stanley Matthews, 1881
Former Ohio senator Stanley Matthews had a reputation as a loyal sidekick of President Rutherford B. Hayes when Hayes nominated him for the court in January 1881. Hayes and Matthews had been college classmates, lawyers in Cincinnati together and officers in the same Ohio infantry division.
The Senate refused to take action on the nomination, partly because of political disagreements with the president and partly because senators considered the nomination simply a reward for loyal service to the president. But Matthews was nominated again by the next president, James Garfield, and after a lengthy debate about Matthews' controversial career as a defender of big business, he was confirmed 24 to 23.
William B. Hornblower, 1894
A feud between President Grover Cleveland and a senator led to the defeat of two Cleveland nominees. When a vacancy opened in September 1893, Cleveland sought to name another New Yorker. New York Sen. David B. Hill made several suggestions, but because he and Cleveland opposed each other on other matters, Cleveland ignored the advice and selected New York attorney William B. Hornblower. Hill prevailed on his colleagues, and the nomination was defeated in January 1894 by a vote of 30 to 24.
Wheeler H. Peckham, 1894
Undaunted by the Senate's rejection of his first nominee, Cleveland nominated another New York attorney, Wheeler H. Peckham, without consulting senators. Hill protested again, and again he prevailed with his colleagues. Peckham was rejected by a vote of 41 to 32. Hill was surprised when Cleveland then nominated a Louisiana senator, who was confirmed the same day he was nominated.
John J. Parker, 1930
When President Herbert Hoover nominated North Carolina Judge John J. Parker in March 1930, the American Federation of Labor and the NAACP launched an all-out attack, charging that Parker was insensitive to racial prolems and the interests of labor. Parker was defeated in May by a vote of 41 to 39 despite strong legal credentials. Activists might have regretted their success, however. Parker continued as an appeals court judge in his home state and handed down several decisions promoting black rights. The judge confirmed to the Supreme Court proved much more conservative on the matter.
Abe Fortas, 1968
When Chief Justice Earl Warren announced his retirement in June 1968, President Lyndon B. Johnson nominated Associate Justice Abe Fortas, an old friend whom he had selected for the court three years earlier. But the Senate opposed the nomination on three grounds. Republican and conservative Democratic senators objected to Fortas' liberal opinions, and some complained about his practice of advising Johnson on policy matters. Some also disagreed with Fortas' acceptance $15,000 to teach a law school class while he was on the court. To add fuel to the controversy, Johnson nominated another old friend to take Fortas' seat, giving rise to more charges of "cronyism."
Fortas asked Johnson to withdraw the nomination when opponents carried out a filibuster. Fortas resigned the next year under threat of impeachment after a magazine article reported that he had accepted $20,000 from a charitable foundation controlled by an indicted stock manipulator.
Homer Thornberry, 1968
Senate opposition to Fortas' nomination to be chief justice put an end to Homer Thornberry's nomination to replace Fortas as associate justice. Like Fortas, Thornberry was criticized for his close friendship with Johnson, and charges of "cronyism" surrounded the nomination. But critics also questioned Thornberry's legal qualifications. Johnson had appointed Thornberry, a former U.S. representative, as a federal judge and later as an appeals court judge, but when Johnson proposed promoting him one more time to the Supreme Court in June 1968, even Johnson's Democratic allies objected. The Senate never voted on his nomination.
Clement F. Haynsworth Jr., 1969
The resignation of Abe Fortas gave President Richard Nixon a chance to nominate a conservative. His choice was South Carolina Judge Clement F. Haynsworth Jr., who when nominated in August 1969 seemed well-qualified. But during the Senate's confirmation hearings, several senators questioned Haynsworth's participation as a federal appellate judge in a case involving a company in which he had financial interests. Conflict-of-interest concerns combined with strong opposition from labor, minority and civil rights groups to defeat the nomination. The Senate rejected Haynsworth in November 55 to 45 after three months of deliberation.
G. Harrold Carswell, 1970
Nixon responded to the Haynsworth defeat by sending the Senate the name of conservative Florida Judge G. Harrold Carswell. Some interpreted Nixon's nomination of such an unqualified judge as an attempt at revenge for the Senate's rebuff. Prominent newspapers called Carswell "totally lacking in professional distinction" and "an insult to the Congress, a denigration of the court and an affront to the faith of the American people in the quality of their government."
Carswell's record on civil rights also led to his rejection. During confirmation hearings, reporters uncovered a militant white supremacist speech Carswell had delivered in 1948 and other evidence suggesting questionable views on desegregation. Civil rights, labor and feminist groups joined forces in a vigorous attack on Carswell's nomination. He was rejected in April 1970 by a vote of 51 to 45.
SOURCES: "Congressional Quarterly's Guide to the Supreme Court," "God Save This Honorable Court" by Laurence H. Tribe, "Facts About the Presidents" by Joseph Nathan Kane and "The Supreme Court in United States History" by Charles Warren.
DESIGN BY MARTY BARRICK -- THE WASHINGTON POST