Nominations to the Court

Description: Selection of candidates for an associate justice or chief justice position on the Supreme Court by the president. In each case, selection must be followed by confirmation (approval by a majority of the Senate).

Significance: This process of nomination and confirmation is authorized by Article II, section 2 of the U.S. Constitution as the sole means by which any individual can become a member of the Court. Once on the Court, members have life tenure, although they can resign or be removed by impeachment.

This path to Supreme Court membership is essentially an American practice. It stems from a historical precedent established in colonial times when appointments by some governors required approval by their councils. Several state constitutions enacted under the Articles of Confederation provided for the legislative endorsement of gubernatorial appointees.

Senate confirmation was adopted as a result of a compromise in the Constitutional Convention of 1787, and it applies to those nominated for positions in the executive branch and the lower federal courts, as well as all Supreme Court justices. Some delegates favored appointment by the president alone, others by the Senate alone, and still others by the president acting with an executive council chosen by the legislature. Arguing for compromise in The Federalist (1788), No. 76, Alexander Hamilton predicted the role of the Senate would be largely reactive and passive and that there would be “no difference between nominating and appointing.” Although approval has been the norm, Hamilton’s prediction has not always been accurate when applied to the process in practice.

The Constitution does not dictate the size of the Court, which is set by law. Membership fluctuated between five and ten justices from the founding of the republic in 1789 to 1869; in that year, the current number of nine was firmly established.

After 1789 the Senate has considered, on average, one Court nomination every two years, comparatively fewer than the other offices subject to Senate confirmation. However, these few nominations have been carefully considered in the Senate and highly publicized in the media, particularly in recent times, because of the underlying policy and political significance of the position and the long-term influence justices have.

Process

Political parties have always played a central role in the confirmation process, as have members of the Senate Judiciary Committee and their staffs. In the early years of the Senate, unless a nominee was unknown or serious questions were raised about him, it was customary to act on nominations without sending them to a committee for consideration. In 1868 the Senate amended its rules to require referral of each nomination to the Judiciary Committee, which held hearings (public since 1929), opening the process to interested groups and the media. Although the testimony of nominees, supporters, and opponents was once considered in subcommittees, nominations later began to be considered by the full committee. This reflects and intensifies the impact of the proceedings on committee members’ opinion poll ratings in their home states and their chances for reelection or elevation to higher office.

Following a committee vote, the nomination is sent to the full Senate for consideration. After debate and action by the Senate, successful nominees assume office. At any step along the way, a nomination may be withdrawn by the president or challenged, blocked, postponed, or defeated by a roll-call vote in the Senate.

Discord

Conflict has been a part of the process almost from the outset because of the perceived importance of nominations to the Court. Of all offices subject to Senate confirmation, Court positions are clearly the most controversial, as befits the justices’ life tenure and their long-term impact on public policy. When a roll-call vote is taken, the more controversial nominees are those with ten or more senators recorded in opposition, and the most controversial of all are the small handful of those who are rejected.

Battles over nominations are the result of the impact of such developments as the direct election of senators, the growth of interest groups, the institutionalization of the confirmation process in the Senate, and the increasing openness of, and media attention to, Court nominees. In the twentieth century, these battles came to be accompanied by circumstances that historically intensified controversy, such as divided governments and polarizing issues such as crime, race, and abortion. Nominations have remained contentious in the twenty-first century.

Although more than 80 percent of those nominated to the Court were confirmed, of all offices subject to Senate approval, justices historically rank first in the proportion of nominations rejected. As the Constitution does not spell out what the Framers considered legitimate causes for the rejection of Court candidates, the Senate created its own definition through the process of considering the qualifications of individual candidates.

During the eighteenth and nineteenth centuries, partisanship, patronage, and personality clashes played a central role in the conflict over nominations, while ideology became a predominant factor in the twentieth century. However, relatively few controversies and no rejections occurred for long periods, such as from 1895 to 1929 and from 1931 to 1967. The record of controversy and rejection, while notable, has not been a consistent feature of Senate consideration.

From the outset, all rejected nominations to the Court were decided by roll-call vote, but beginning in 1967, every nomination to the Court was resolved in this manner, even when no recorded opposition existed. Most roll-call votes result in approval, but twenty-seven nominations have failed since 1789. Almost half of these were rejected outright by a Senate vote, and the balance were simply not acted on by that body. In addition, six people confirmed by the Senate in the nineteenth century declined to serve.

Presidential Perspectives

Presidents unpopular with the voters, interest groups, and members of Congress are more likely to have nominations challenged, as are lame-duck presidents and presidents not of the same party as the Senate majority. This lack of popularity is indicated by low ratings in opinion polls or negative press.

Challenges to nominations may arise because of questions about a nominee’s qualifications, competence, or ethical record; alternatively, they may be caused by personal, political, or policy-related opposition to the nominee or the president. The confirmation process involves more than an individual nomination; it also provides an arena for the ongoing struggle between the executive and legislative branches over public policy.

When a nomination faces a powerful challenge and possible rejection, even the strongest president must decide if the battle is politically worthwhile, given his or her other priorities. Strategic considerations become critical in determining if it is possible to win the marginal votes of uncommitted senators or if the nomination should be withdrawn. When opponents diversify their appeal and address a bipartisan audience and are united by a leadership armed with a powerful counterstrategy to that of the supporters of the nomination, the opposition will probably gain the marginal votes needed to turn the challenge into rejection.

Notable Rejections

President George Washington’s first eight nominations to the Court were confirmed, but the Senate rejected the 1795 nomination of John Rutledge as chief justice of the United States. Rutledge’s nomination failed because of his criticism of Jay’s Treaty of 1794, an effort to settle some differences between the United States and Great Britain, which was supported by a majority of senators.

The nineteenth century saw an escalation of contention over nominations. President Andrew Jackson’s attorney general, Roger Brooke Taney, had earlier failed confirmation as secretary of the treasury because of the fight over the Bank of the United States. Consequently, he was at first rejected when nominated for a seat on the Court, but he finally secured confirmation as chief justice in 1836. President John Tyler was the first person to become president without being elected to that office, and he broke with his party soon after assuming office. He had four Court appointees rejected during his brief single term. President Andrew Johnson, who was impeached by the House of Representatives but narrowly acquitted in the Senate, was unable to secure an appointment to the Court of his impeachment trial counsel, Henry Stanbery.

Increasing involvement in the nominations process by interest groups during the twentieth century resulted in the interjection of ideology. This factor played a central part in the rejection of several nominees. President Herbert Hoover’s nomination of John J. Parker to the Court in 1930 was the first defeat of a nominee to the Court since 1894, brought about largely by the opposition of labor and civil rights groups.

President Lyndon B. Johnson had little difficulty with appointments until the last year of his presidency (1968) when his nomination of Abe Fortas to become chief justice was withdrawn in the face of likely defeat in the Senate. President Richard M. Nixon had two Court nominees rejected, as did President Ronald Reagan. The rejection of Reagan’s nomination of Robert H. Bork, the result of a highly visible ideological struggle, marked the largest negative Senate vote on a Court nomination in history.

President Barack Obama nominated Merrick Garland in February 2016, with only a year left in office; a Republican-controlled Senate refused to vote on the nomination. Garland's nomination remained before the Senate for nearly 300 days, the longest of any Supreme Court nominee, before automatically expiring in January 2017.

Bibliography

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Comiskey, Michael. Seeking Justices: The Judging of Supreme Court Nominees. UP of Kansas, 2004.

Davis, Richard. Electing Justice: Fixing the Supreme Court Nomination Process. Oxford UP, 2005.

Davis, Richard. Supreme Democracy: The End of Elitism in Supreme Court Nominations. Oxford UP, 2017.

“Guides: Supreme Court Nominations Research Guide: Nomination & Confirmation Process.” Georgetown Law Research Guides, 8 Mar. 2023, guides.ll.georgetown.edu/c.php?g=365722&p=2471070. Accessed 6 Apr. 2023.

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