With the Supreme Court ending its 2007-08 term, we thought this week was a good time to answer some questions you probably weren't asking (but will nonetheless find interesting). All week, the honorable David Holzel will be presiding.
Who are the coulda-been nominees?
Since George Washington nominated the first batch of justices, the Senate has confirmed all but 34 of 156 nominations. (Washington, first in everything, is the president with the most nominations confirmed "“ 12, two of whom declined to serve. But even he had two rejected. John Tyler holds the record as the president with the most nominations rejected "“ 8.)
In our time, the most famous rejected nominee is Robert H. Bork, a legal scholar and U.S. Court of Appeals judge with a long paper trail of conservative opinions. Nominated by President Ronald Reagan in 1987, Bork could have tilted the Court decisively to the right. As a known quantity, he was an easy target for liberal opponents, who organized a campaign against him. He was rejected by the Senate Judiciary Committee after 12 days of hearings.
"Oh degraded Country! How humiliating to the friends of moral virtue "“ of religion and of all that is dear to the lover of his Country!" the New-York Gazette Advertiser wailed over President James Madison's nomination of Alexander Wolcott, in 1811. "Wolcott's strong enforcement of the controversial embargo and non-intercourse acts while a U.S. collector of customs had cost him support in the press and the Senate. His qualifications for becoming a justice also were questioned," according to the CRS Report for Congress. The Senate turned him down by a 9-24 vote, the widest rejection in Supreme Court history.
Roger B. Taney (pronounced tawny) is largely remembered as the chief justice who handed down the Dred Scott decision in 1857. With his sepulchral countenance, Taney is inextricably linked to the grim ruling that all blacks -- slaves as well as free -- were not and could never become citizens of the United States. But when President Andrew Jackson nominated him in 1835 as associate justice, opposition Whigs were still smarting from Taney's removing government deposits from the Second Bank of the United States, while a recess-appointed secretary of the treasury. The Senate voted to indefinitely postpone the nomination. But after Chief Justice John Marshall died in 1836, Jackson sent Taney's name up again. He was confirmed, this time as chief justice.
You might think the Senate just couldn't stomach elevating to the highest court in the land a man with the name Ebenezer Hoar. But it seems the senators were offended by something other than aesthetics. As President Ulysses S. Grant's attorney general, Hoar had insisted on rewarding merit rather than political loyalty, thus blocking a well trod route for patronage. So when Grant nominated Hoar to the Court in 1869, miffed Republican senators gave the virtuous Hoar thumbs down.
A senator has the right to reject a court nomination simply because the nominee is from the senator's home state. Upon this invocation of "senatorial courtesy" rests the demise of Wheeler Hazard Peckham and William B. Hornblower. Both men were nominated by President Grover Cleveland. Both nominees were New Yorkers, and New York Sen. David Hill invoked senatorial courtesy to squelch their nominations in 1894. (Peckham's brother, Rufus Wheeler Peckham, became a justice in 1896.)
Some nominees withdrew themselves from consideration before they could be rejected. Such was the case of Harriet Miers, whom President George W. Bush nominated in 2005, but withdrew under criticism that she was unqualified. Another withdrawal was that of Douglas Ginsburg (pictured, and not related to current justice Ruth Bader Ginsberg), the conservative, former pot-smoking federal appellate judge who is a footnote in the Bork saga. After Bork was Borked, Reagan mooted the more moderate Anthony Kennedy for the seat. But Sen. Jesse Helms (R-N.C.) threatened a filibuster. So Reagan turned right again and proposed Ginsburg. Embarrassingly, there was no getting around the revelation that Ginsburg had inhaled. Ginsburg withdrew himself from consideration, Reagan put forward Kennedy and the Senate, eager to move on, easily confirmed him.