From its earliest years, the Senate has jealously guarded its power to review and approve or reject presidential appointees to executive and judicial branch posts.
Edited by Matthew A. McIntosh
Journalist and Historian
In its history, the Senate has confirmed 126 Supreme Court nominations and well over 500 Cabinet nominations.
In the 19th century, the Senate referred few nominations to committees. Since the mid-20th century, committee referral has become routine and most nominees testify at Senate hearings.
The United States Constitution provides that the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for…” (Article II, section 2). This provision, like many others in the Constitution, was born of compromise, and, over the more than two centuries since its adoption, has inspired widely varying interpretations.
The president nominates all federal judges in the judicial branch and specified officers in cabinet-level departments, independent agencies, the military services, the Foreign Service and uniformed civilian services, as well as U.S. attorneys and U.S. marshals. In recent years, more than 300 positions in 14 cabinet agencies and more than 100 positions in independent and other agencies have been subject to presidential appointment. Approximately 4,000 civilian and 65,000 military nominations are submitted to the Senate during each two-year session of Congress. The vast majority are routinely confirmed, while a very small but sometimes highly visible number fail to receive action.
The importance of the position, the qualifications of the nominee, and the prevailing political climate influence the character of the Senate’s response to each nomination. Views of the Senate’s “proper role” range from a narrow construction that the Senate is obligated to confirm unless the nominee is manifestly lacking in character and competence, to a broad interpretation that accords the Senate power to reject for any reason that a majority of its members deems appropriate. Just as the president is not required to explain why he selected a particular nominee, neither is the Senate obligated to give reasons for rejecting a nominee.
Executive branch appointments customarily end with the departure of the president who made them, except for those independent agencies whose officials have fixed terms. Judicial appointments, however, are for life and can be terminated only through the time-consuming congressional impeachment process. Historically, Supreme Court nominations, in great disproportion to their number, have attracted the close attention of senators, the media, and scholars. While the Senate has explicitly rejected fewer than 2 percent of all cabinet nominees since 1789, nearly a quarter of all Supreme Court nominations have failed to be confirmed, their nominations rejected, withdrawn, or not acted upon.
Throughout the nation’s history, appointments to judicial posts below the Supreme Court have generated little controversy. This has been due in part to the large number of such appointments and to the tradition of senatorial courtesy, which defers to the preferences of senators belonging to the president’s party who represent a particular nominee’s home state. Lower court judges have been considered less potentially mischievous because they are more closely constrained by precedent than are Supreme Court justices, and they do not have the final judicial say on significant issues.
With the exception of appointments to cabinet departments and the Supreme Court, most rejections in modern times have taken place at the committee level, either through inaction, or by a vote not to send the nomination to the Senate floor. Before the 1860s, the Senate considered most nominations without referring them to the committee holding jurisdiction over the vacant post. The Senate rules of 1868, for the first time, provided for the referral of nominations to “appropriate committees.” Not until the middle of the twentieth century, however, did those committees routinely require nominees for major positions to appear in person.
Presidents have occasionally circumvented the confirmation process by making so-called recess appointments when the Senate is in adjournment between sessions, or in recess within a session. As provided by the Constitution, such appointments expire at the end of the following congressional session, but may expire earlier in certain specified circumstances.
When the federal Constitutional Convention assembled at Philadelphia in 1787, delegates of the twelve states represented could refer to no generally accepted principle for selecting judges and executive officials. The most obvious precedent was that of the states, since most of the fifty-five delegates had served in state or local governments and were well versed in the mechanics of legislative operation. At that time, state constitutions granted the appointment power to their legislatures, or to a council that the legislature appointed. Under the government of the existing Articles of Confederation, which lacked a separate executive, the unicameral Congress made all appointments, based on recommendations of the delegates from the state involved.
At the convention, initial plans for organizing the new government split the appointment power, with Congress filling judicial appointments and the president selecting executive officers. The framers eventually agreed to confine the congressional role to the Senate, as they believed its smaller size would promote the desired secrecy and efficiency of the process.
The greater debate centered on whether the Senate or the president would be best able to identify suitable candidates. In the convention’s final days, following Massachusetts’ century-old practice, delegates divided responsibility between the two. In so doing, the framers addressed the fears of certain influential delegates that entrusting the appointment power exclusively to the president would encourage monarchical tendencies. As the Senate was to represent each state equally, its role offered security to the small states, whose delegates feared they would be overwhelmed by appointees sympathetic to the larger states. Even Alexander Hamilton, who wished to strengthen the executive against legislative interference, supported the concept of dual responsibility, believing that the president’s authority to nominate was sufficient to control the appointment process, for the Senate could do no more than accept or reject his choices. In placing the legislative role in the Senate, which was intended to be relatively immune from political pressure, and by requiring joint action with the president, the framers hoped to minimize corrupt bargaining for appointments.
Setting Precedents – 1789
President George Washington was aware that his every action would have significant consequences for the success of the new government and he predicted that the making of appointments would be among his most difficult duties. In selecting nominees, Washington turned to his closest advisers and to members of Congress, but the president resolutely insisted that he alone would be responsible for the final selection. He shared a common view that the Senate’s constitutionally mandated “advice” was to come after the nomination was made. (This differed from some existing state constitutional arrangements in which the governor was to seek the advice of his council before making a nomination.)
The First Congress addressed many issues left unsettled at the Constitutional Convention. Among those related to appointments was the power of removal. Representative James Madison (VA), who had been the convention’s guiding spirit, introduced a bill in the House to establish a cabinet department of foreign affairs, with a provision explicitly acknowledging the president’s power to remove the “principal officer of the department.” This language emerged from a five-day debate that thoroughly explored the framers’ intentions. Members had advanced the following constitutional interpretations: the president alone had power of removal; the president shared it with the Senate; an officer could be removed only by the impeachment process; and Congress could resolve this issue because the Constitution was silent on it. Madison vigorously supported sole executive responsibility. He acknowledged the Senate’s confirming role, but he warned that he would not “extend or strain that qualification beyond the limits precisely fixed for it.”
The First Rejection
On August 5, 1789, the Senate, for the first time, rejected a nomination and in so doing, established the tradition of “senatorial courtesy.” Two days earlier, President Washington had submitted 102 appointments as collectors, naval officers, and surveyors to seaports. The Senate readily agreed to all but one — Benjamin Fishbourn of Georgia. Earlier in his career Fishbourn had offended James Gunn, who in 1789 had become one of Georgia’s two senators. This seemed to have been Fishbourn’s only shortcoming. In rejecting him, the Senate shared the view of some of the Constitution’s framers that senators were best qualified to judge the fitness of nominees from their states. The president submitted a replacement, and a tactful letter of protest. He noted that the Senate probably had its reasons for rejecting Fishbourn, but he urged members who might question future nominations “to communicate that circumstance to me, and thereby avail yourselves of the information which led me to make them and which I would with pleasure lay before you.” In later years, as the tradition of senatorial courtesy evolved, presidents would routinely survey senators of their party before formally submitting candidates from their states to fill major executive and judicial positions.
Immediately after the Senate rejected Fishbourn, a motion was introduced “That it is the opinion of the Senate that their advice, and consent to the appointment of Officers should be given in the presence of the President.” Washington decided that this arrangement could embarrass both the president and the Senate by forcing their silence or their argumentation. He concluded that as he had the right to nominate without specifying his reasons, so did senators have the right to dissent without detailing theirs. The Senate accepted the president’s decision and then reversed its earlier agreement to vote in secret on nominations and treaties. For both types of “executive” business, the Senate decided that a voice vote would be required, whether or not the president was present. Although executive sessions of the Senate would remain closed to the press and public until 1929, members’ votes would be publicized in the Senate’s executive journal.
Early Supreme Court Nominations
The first president holds the record for the most Supreme Court nominations. He made thirteen selections for ten vacancies on the six-member court between 1789 and 1796. One associate justice declined to serve after confirmation in 1789, one nominee was rejected in 1795, and one associate justice turned down a promotion to chief justice in 1796. Washington named only men he knew well; and he measured them against specific criteria, including the fitness of their character and health, rigorous training, and public recognition. He expected outspoken support for the Constitution, an exemplary military record, and distinguished prior political and judicial service.
Washington nominated John Jay of New York as chief justice. When Jay resigned in 1795, the president selected South Carolina’s John Rutledge, who had served briefly as an associate justice, to replace him. His nomination raised questions about the order of succession to the chief justiceship. Some argued that the appointment should have been made from the ranks of the sitting associate justices, with preference given to the senior justice. Others contended that the best available man should be found for the job and that “dull seniority and length of service should be considered as nothing.” As the Senate was in recess until winter, Rutledge received only a temporary commission.
Several weeks after his appointment, Rutledge delivered a speech highly critical of the Jay Treaty, which the administration and Senate had supported. Many in the administration cited this ill-timed speech as evidence of Rutledge’s advancing mental incapacity. Ignoring this swirling controversy, Rutledge arrived at the capital in August 1795 and took his seat. When the Senate convened several months later, it promptly rejected his nomination. Rutledge thus became the first Supreme Court justice to be rejected and the only one among the 15 who would gain their offices through recess appointments not to be subsequently confirmed. In rejecting Rutledge, the Senate made it clear that an examination of a nominee’s qualifications would extend beyond his personal qualifications to his political views. Those who differed substantively from the majority of senators could expect rough going.
To the choice of his cabinet, the first president applied criteria similar to those he used for his initial judicial nominees. His major appointments were Thomas Jefferson to the Department of State, Alexander Hamilton to Treasury, and Henry Knox to War. Washington rounded out his cabinet with appointments to the secondary posts of attorney general and postmaster general. The Senate readily confirmed all five appointees.
Adams, Jefferson, and Madison
Despite earlier expectations, political partisanship quickly became a factor in the organization and operation of the new government. Washington had asserted that he would consider political loyalty as a factor in selecting key officeholders, but he vowed that subordinate posts would be filled only on merit. Despite this laudable aim, subsequent presidential appointments at all levels took on a strong political coloration. John Adams pledged to be more careful than Washington in avoiding appointment of vigorous partisans and promised to seek men of principle and competence. Despite his intentions, he encountered resistance to the free exercise of his nominating prerogatives from holdover appointees who felt no obligation to resign. He also encountered resistance from the Senate, which insisted on an active role beyond eliminating obviously unfit nominees. Consequently, Adams continued the practice of consulting members of the Senate, as well as the House, on appointments within their individual states, and he gave more weight to congressional recommendations than did Washington.
Thomas Jefferson enjoyed strong support in the Senate for most of his eight years as president and worked closely with state delegations in selecting appointees. He removed very few holdover appointees and carefully examined every nomination, from Supreme Court justice to lighthouse keeper. He maintained Washington’s firm control of the nomination process, refusing requests to share with the Senate letters of recommendation for individual nominees.
While the Senate gave Jefferson little difficulty with his nominations, it responded vigorously to those of his successor, James Madison. The first battle occurred when Madison announced his intention to appoint Albert Gallatin, Jefferson’s treasury secretary, as secretary of state. Three senators, including Maryland’s Samuel Smith, immediately informed the president that Gallatin would not be confirmed. Smith hoped to have his brother Robert, then secretary of the navy, appointed to that post. By way of compromise, they agreed to support Gallatin if Robert Smith were named to replace him as treasury secretary. Gallatin refused to participate in such a deal and requested to remain at treasury. Madison then appointed Smith to the state department post, despite serious doubts about his competence. John Quincy Adams later observed that the War of 1812 would never have occurred if Gallatin had been secretary of state.
Madison suffered major Senate rejections, one to the Supreme Court and one to his cabinet. In 1811 he selected, as his first nominee to the Supreme Court, Alexander Wolcott, a Connecticut customs collector. Convinced that Wolcott lacked appropriate legal training and experience, and angered by his strident partisanship, the Senate decisively killed his nomination by a 9-to-24 vote.
In 1815 Madison named Henry Dearborn secretary of war. Dearborn had held that post in Jefferson’s administration, but subsequently had come under attack for his poor military record during the War of 1812. Realizing that Senate rejection was inevitable, Madison moved to withdraw the nomination the day after its submission. His action came too late, as the Senate voted to reject Dearborn. Realizing that Madison was about to rescind the nomination, the Senate quietly erased from its journal the record of these proceedings. Although not formally credited with this distinction, Dearborn in effect became the first cabinet nominee rejected by the Senate.
In 1820 Congress passed the Four Years Act, which limited the terms of federal officers such as district attorneys and customs collectors. This legislation was intended to relieve pressures on the president and the Senate by assuring a regular supply of vacancies. Thomas Jefferson predicted the act would create great mischief by keeping job seekers constantly agitated. Presidents James Monroe and John Quincy Adams, refusing to comply with the law’s intent, reappointed most who fell under its provisions. Its impact was first felt in the political sea change that followed the 1828 election of Andrew Jackson.
More than any other president since George Washington, Andrew Jackson defined the relations between the executive and Congress. From the start of his administration in 1829, he intruded into congressional operations. And the Senate responded. Dramatic nomination fights erupted almost immediately and resulted in the first open rejection of a cabinet secretary and the third defeat of a Supreme Court nominee.
Among Jackson’s first set of nominations were a “batch of [newspaper] editors” who had supported his presidential campaign and were clearly being rewarded for their political services. With the Senate out of session, Jackson gave the editors recess appointments. When the Senate returned to session, Jackson’s political foes responded with a “massacre of the editors,” rejecting ten nominees. Coming at the start of a new administration and considering the passion that these fights unleashed, this clash was unprecedented. The struggle might have been even more intense had not Jackson been so popular.
By the summer of 1834, relations between the president and the Senate, which stood evenly divided between anti-Jackson men and administration supporters, were at an all-time low due to the chief executive’s attack on the Second Bank of the United States. The Senate, demonstrating its capacity for combat in instances where the president’s party lacked a firm majority, rejected four of the bank’s government directors. When Jackson renominated them, the Senate again rebuffed them by an even larger margin, leading Virginia Senator John Tyler to warn that renominations should be made only in “very clear and strong cases.” In the final week of the congressional session, Jackson nominated Attorney General Roger B. Taney as secretary of the treasury. Taney had been the architect of Jackson’s plan to dismantle the bank. A day later, a pro-bank majority in the Senate, including both senators from Taney’s Maryland, voted 18 to 28 to deny Taney the post, making him the first cabinet nominee to be openly rejected.
The following year Jackson named Taney associate justice of the Supreme Court, but opponents blocked a Senate vote on the last day of that session and tried unsuccessfully to eliminate one seat from the Court. When the Senate reconvened in December 1835, under a slim margin of Democratic control, it received a new Taney nomination, this time to fill a vacancy for chief justice. Following extended maneuvering and bitter debate, the Senate confirmed Taney.
With the departure of the overbearing Jackson, the Senate quickly reasserted its prerogatives over appointments and maintained its dominance throughout the nineteenth century. One of the most dramatic confirmation struggles occurred in the administration of John Tyler, who had fallen out with the Senate’s Whig majority shortly after he succeeded to the presidency in 1841. On March 3, 1843, the final day of a contentious congressional session, the Senate considered Tyler’s nomination of Caleb Cushing to be secretary of the treasury. Cushing had deeply antagonized administration foes in the Senate with his strident defense of the president. For the second time in history, the Senate formally rejected a cabinet nominee. Signing last-minute legislation in a room adjoining the Senate chamber, Tyler quickly resubmitted his nomination of Cushing, contradicting his own earlier views against renominations. Minutes later, and by a greater margin, the Senate again rejected Cushing. Not deterred, Tyler again sent in Cushing’s name. And again, with only two affirmative votes, the Senate dismissed the nominee, demonstrating the power of institutional loyalty over partisan allegiance. Following this pattern, the Senate subsequently twice rejected Tyler’s nominee as minister to France and turned down appointees for the posts of minister to Brazil, secretary of the treasury, secretary of the navy, secretary of war, and four Supreme Court nominees. Hopes among Whig senators that their former colleague Henry Clay would be the next president accounted for the Senate’s refusal to move on any Supreme Court nominations until after the 1844 election.
Tyler’s successor turned out to be Democrat James K. Polk, who complained bitterly of pressure from members of Congress to influence appointments. On one occasion he appointed a surveyor to the Port of St. Louis. When that nomination was defeated at the request of the very senator who had recommended the candidate, Polk asked for an explanation. The senator replied that he was obligated to recommend any constituent who might apply. From 1844 to 1853, the Senate rejected seven of twelve Supreme Court nominees, with most defeats coming in the final months of the appointing president’s term.
Civil War and Reconstruction
President Abraham Lincoln, following the practice of his predecessors, used patronage appointments to solidify his power base. Only to the highest posts did he apply a standard of competence for office holders. Otherwise, Republicans in the House of Representatives were allowed to recommend candidates for minor offices such as postmasterships, while Republican senators were given a fairly free hand in choosing nominees for major offices. The end of the Civil War and the ensuing disputes over Reconstruction policies reopened traditional animosities between the executive and Congress. With the leadership of the House and Senate intent on pursuing a harsher policy than Lincoln’s successor, Andrew Johnson, the entire appointments process became subject to reexamination.
The fundamental issue involved authority to remove officeholders. During Lincoln’s administration, Congress passed and the president signed a law stipulating that Senate permission would be required to remove the controller of the treasury. Other statutes curbed the president’s removal power over consular clerks and military officers. Andrew Johnson reacted to congressional attacks on his policies by removing officials originally appointed at the request of those who had become his opponents in Congress. In response, Congress passed, over Johnson’s veto, the Tenure of Office Act. This bold statute, enacted on March 2, 1867, prohibited the president from removing civil officials appointed with the Senate’s advice and consent, without first obtaining Senate approval. Congressional supporters of War Secretary Edwin Stanton intended this law to insulate him against removal. Five months later, while the Senate was in recess, Johnson suspended Stanton and appointed General Ulysses Grant. On reconvening in December, the Senate and House passed resolutions asserting that the president had violated the Tenure of Office Act. Even though Grant relinquished his post to Stanton, the House approved articles of impeachment against the president, and the Senate conducted the trial that came within one vote of removing Johnson. Attorney General Henry Stanbery had resigned his office to serve as Johnson’s counsel during the impeachment proceedings. On the conclusion of the trial, Johnson reappointed Stanbery to his former post, and the Senate immediately rejected him 11 to 29. (In 1926 the Supreme Court declared the Tenure of Office Act unconstitutional in Myers v. United States, preserving presidents’ rights to dismiss all appointees except regulatory commission members and other fixed-term officeholders whose independence would be violated by removal.)
The greatest series of Supreme Court rejections came in the years immediately following the Civil War, at a time of intense partisan conflict when the majority of senators viewed the Court as a political institution whose members should represent geographical regions and hold “acceptable” political views. The Court had taken a sharp decline in public esteem following its 1857 Dred Scott decision. During the Civil War, the Lincoln administration viewed the Court as unsupportive of its efforts to preserve the Union and sought to fill vacancies with politically reliable allies. In 1866 Congress passed legislation to preserve the amicable Lincoln court, which had increased to ten members in 1863, by reducing its membership through attrition to seven. The Court soon proved unfriendly to the aims of the Radical Republicans in Congress, and those members considered plans to limit the Court’s powers, such as requiring a two-thirds vote to invalidate an act of Congress. Through the remainder of the 1860s and 1870s, justices repeatedly acted in an overtly partisan manner.
The 1866 act reducing the size of the Court blocked President Andrew Johnson’s appointment of Henry Stanbery and removed his opportunity to fill the next two vacancies. When the politically more palatable Ulysses Grant became president, Congress reversed itself and set the Court’s size at its current nine members. In 1869 Grant named Ebenezer Hoar to the Court. As attorney general, Hoar had offended many senators by insisting on highly qualified judicial appointees–a standard that left little room for political patronage considerations. Hoar’s stinging criticism of several candidates was not soon forgotten by their senatorial patrons. When Grant nominated Hoar to the high court, his Senate foes ensured his defeat, despite wide popular endorsement, by an unambiguous 24-to-33 margin.
Hoar’s nomination marked a break with the practice of selecting justices from the judicial circuit of the previous incumbent. This arrangement had minimized controversy by allowing appointment of a candidate popular with the legal community of a specific circuit. But Grant was unwilling to name a southerner, in part because southern opposition had provided the margin to reject Hoar’s confirmation. Several years later, Grant nominated former senator George H. Williams to be chief justice. Unlike the Hoar appointment, this selection stimulated widespread public condemnation. The New York Bar Association charged that he lacked the experience, intellect, and reputation essential for Supreme Court service. Williams subsequently withdrew his nomination.
Grant then named Caleb Cushing as chief justice. Thirty years earlier, the Senate had rejected Cushing three times as Tyler’s treasury secretary. Although he was a well-regarded jurist, Radical Republicans forced his withdrawal on the overblown charge that he had corresponded with Confederate president Jefferson Davis in the early days of the Civil War. Beneath this, they feared that he would not be a firm partisan and that he was a man of “unstable character.” During Grant’s administration, the Senate rejected nine of fifty-eight contested executive and judicial nominations.
In the following administration of Rutherford Hayes, the Senate disapproved fifty-one of ninety-two contested nominations. Hayes’ successor, James Garfield, tried to accommodate all major factions in his relations with the Senate. However, deciding to attack the custom of senatorial courtesy, he soon became embroiled in a dispute over appointments to federal posts in New York with that state’s Republican senators, Roscoe Conkling and Thomas Platt. In the course of the struggle, Garfield declared that the issue at stake was whether the president was to be the registering clerk of the Senate or the nation’s chief executive. He warned that senators who dared oppose him would no longer be welcome at the White House. When Garfield, over Conkling’s and Platt’s vigorous objections, refused to withdraw his controversial appointment for collector of the Port of New York, both senators resigned in hopes of gaining a moral victory over the president through reelection. With those hostile senators gone, the Senate approved the nomination. Neither senator succeeded in his reelection bid; and the concept of senatorial courtesy, carried to its extreme, suffered a severe blow.
A demented job-seeker’s assassination of Garfield hastened passage of the 1883 Civil Service Act, a reform that removed many lower-level federal positions from patronage control, thereby reducing opportunities for friction between Congress and the president. By 1891, Republicans had abandoned their efforts to improve the lot of southern blacks and instead followed accommodationist policies that eliminated war-related issues as sticking points in the confirmation process. Nominees who were Confederate veterans moved easily to confirmation in the 1890s. After the Reconstruction era, Supreme Court nominees were selected without respect to their geographical base or narrow political views. Nominees tended to be business-like legal technicians who experienced little difficulty in being confirmed and who raised the Court’s public esteem. During this period and until 1916, the Senate and the chief executive maintained relatively harmonious relations in dealing with appointments. Presidents appeared unwilling to allow patronage considerations to erode support for their broader legislative agendas.
The twentieth century brought a significant shift in the balance of power between Congress and the presidency. As the nation moved to world-power status, the chief executive assumed greater authority. This shift became apparent in the smaller number of appointments contested in the Senate, particularly when its majorities were of the same party as the president. From 1897 to 1955, the presidency and the Senate were in the hands of the same party for all but four years (1919-1921 and 1947-1949). During the century’s first nine decades, the Senate would reject only three cabinet nominees and five Supreme Court justices. Of these eight rejections, five occurred during periods of divided party control.
President Theodore Roosevelt asserted presidential leadership in his appointments by selecting Supreme Court justices according to his view of their character, competence, and philosophical compatibility. His successor, William Howard Taft, expected an “avalanche of abuse” from fellow Republicans when he named as chief justice Edward Douglas White–a Democrat, a Catholic, and a Confederate army veteran. The Senate surprised Taft by confirming White quickly and unanimously, signifying how times had changed. Taft’s subsequent nomination of Charles Evans Hughes also brought nearly universal praise despite the Republican governor’s highly partisan role in the recent presidential campaign.
When Woodrow Wilson entered office in 1913, returning the Democratic party to power for the first time in sixteen years, a large number of appointment choices awaited him. He occasionally ran afoul of senators of both parties who expected their wishes to be considered seriously for positions within their states, and he suffered minor rejections for choosing individuals whose business interests seemed too closely tied to the position to which they were nominated.
Like Roosevelt and Taft, Wilson sought men he believed would implement his political ideology. Early in 1916 Wilson named Louis D. Brandeis, the progressive “People’s Lawyer” from Boston, to the Supreme Court. The Brandeis nomination ended the quiescent period by sparking a confirmation fight considered “the most bitter and most intensely fought in the history of the Court.” Brandeis deeply antagonized the nation’s conservative legal establishment with his advocacy of “sociological jurisprudence.” Brandeis had become famous in legal circles for the so-called “Brandeis Brief,” which downplayed constitutional issues and precedents and focused instead on such social and economic issues as the health and welfare of workers. The American Bar Association, for the first time, attempted to kill the nomination, charging that Brandeis was unfit. Buried amidst charges that he lacked “judicial temperament” was a deep vein of anti-Semitism. Despite the Senate Judiciary Committee’s slim two-vote margin in his favor, Brandeis secured confirmation by a comfortable 47-to-22 margin and became one of the Court’s greatest justices.
Fourth Circuit Chief Judge John J. Parker, a prominent and distinguished North Carolina Republican, was the first Supreme Court nominee in the twentieth century to be rejected. The battle focused on the nominee’s judicial record, rather than his personal competence. Powerful opposition from the American Federation of Labor and the National Association for the Advancement of Colored People, portraying him as unfriendly to labor and minorities, caused his defeat by a two-vote margin on May 7, 1930.
In 1925, the Senate for the first time summoned a Supreme Court nominee to testify before its Judiciary Committee. Harlan Fiske Stone’s appearance was brief, but the senatorial questioning was vigorous. The next five nominees escaped this personal interrogation, but in 1939 the committee requested Felix Frankfurter to appear. Although he eventually complied, Frankfurter complained that his views were a matter of public record. Since the 1955 nomination of John Marshall Harlan, all Supreme Court appointees have appeared before the Judiciary Committee.
Of the twenty-four Supreme Court nominations between John Parker’s rejection in 1930 and that of Abe Fortas in 1968, seventeen were confirmed unanimously, while only six stimulated significant Senate opposition. This pattern changed with President Lyndon Johnson’s June 1968 nomination of Associate Justice Fortas to be chief justice. His rejection reflected the difficulty of gaining confirmation in the final year of a presidential administration and the special challenge that confronts associate justices, with their highly visible judicial records, when named to be chief justice
The Senate’s refusal to confirm Fortas was also attributable to two tactical errors of the Johnson administration. The president had antagonized Senator Richard Russell (D-GA), the most influential senator of the day, by delaying action on a Russell protégé for a federal judgeship. Moreover, the president, a former Senate majority leader, failed to calculate Senate irritation at being considered a “rubber stamp” for the president’s wishes. Assuming that Fortas would be easily confirmed, Johnson at the same time also named a political crony of modest ability to fill the expected associate justice vacancy. Although the Judiciary Committee recommended favorable action, Republican senators, with a view to their party’s brightening chances to capture the presidency in the approaching election, launched a filibuster to stall action. They expressed disapproval both of Associate Justice Fortas’ tangled financial dealings and his activities as a de facto presidential adviser, despite similar relationships in presidencies from Wilson’s through Truman’s. When his supporters were unable to end the marathon debate, Fortas asked Johnson to withdraw his nomination. He continued as an associate justice until the early months of the Nixon administration when deepening evidence of financial misconduct forced his resignation.
President Richard Nixon nominated appeals court judge Clement F. Haynsworth, Jr. to the vacancy. The conservative South Carolinian, who was recognized by those who knew him as distinguished and able, quickly ran into conflict-of-interest charges similar to those directed at Fortas. He also encountered the hostility of labor and civil rights organizations for alleged insensitivity to their interests. Ultimately the Senate rejected his nomination on a 45-to-55 vote because Republicans, who had recently opposed Democratic nominee Fortas on ethical and moral grounds, believed consistency dictated a similar stance against Haynsworth. Deeply angered, Nixon responded spitefully by nominating appeals court judge G. Harrold Carswell, an undistinguished Florida jurist considered far less qualified than Haynsworth. The Senate seemed initially disposed to confirm Carswell, but evidence of his racial biases and mediocre intellect shifted sentiment against him. Seeking to save the nomination, floor manager Roman Hruska (R-NE) delivered an assessment that proved to be fatal. “Even if he is mediocre there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren’t they, and a little chance? We can’t have all Brandeises, Cardozos, and Frankfurters, and stuff like that there.” After four months, the Senate rejected Carswell, triggering a statement from Nixon that he considered the Senate’s confirmation responsibilities under the Constitution only pro forma. Abandoning his efforts to place a strict constructionist southerner on the high court, he turned to appeals court judge Harry Blackmun, a Minnesotan whom the Senate quickly approved.
Reagan administration experience with Supreme Court nominees in its first six years reinforced the view that Court nominees stand the best chance of approval when the Senate and presidency are in the hands of the same party, and when appointments are made prior to the final year of a presidential term. The Senate unanimously confirmed the appointments of Sandra Day O’Connor in 1981 and Antonin Scalia in 1986. In the three-month-long confirmation proceedings of 1986 that led to the elevation of Associate Justice William Rehnquist to chief justice by a 65-to-33 vote, the Senate demonstrated the greater difficulty that faces sitting justices whose established records invite senatorial scrutiny.
In 1987, when control of the Senate returned to the Democrats and, with less than two years remaining to the increasingly beleaguered Reagan administration, the Senate took special interest in the nomination of federal appeals court Judge Robert Bork. A richly qualified, highly intelligent and outspoken jurist, Bork responded to his critics in a manner that sparked one of the most acrimonious confirmation battles in Senate history. Bork’s doctrinaire judicial views undermined his initial support. Intense media coverage, including strident advertising campaigns by supporters and opponents, created strongly negative impressions among senators and the general public. The Judiciary Committee reported Bork’s nomination adversely to the Senate, which rejected him by a 42-to-58 vote. Bork subsequently contended that the aggressive questioning about basic constitutional issues to which he was subjected would limit future selection of judges to those who had written little, and whose views were non-controversial.
President George Bush’s successful 1990 appointment of Judge David H. Souter, a virtually unknown federal jurist, seemed to corroborate Bork’s view. Bush continued in this pattern in 1991, nominating Judge Clarence Thomas, a conservative African American of little judicial distinction, to fill the seat of Thurgood Marshall, the Court’s first black member. The administration, wary of the perils of divided political control despite its belief that Senate Democrats would have trouble opposing an African American, carefully coached the nominee to avoid extended discussions of his judicial philosophy and delayed hearings until it believed Thomas had gained sufficient support. As an evenly divided Judiciary Committee sent the nomination to the Senate floor without a recommendation, a committee source leaked to the news media information that a former associate had charged that Thomas had sexually harassed her ten years earlier. The Senate, minutes from its scheduled vote and under pressure from a swelling national outcry, returned the nomination to the committee for further investigation. Demonstrating the immense power of the news media to shape the modern confirmation process, the committee’s three-day proceeding became a weekend television spectacle as a transfixed nation divided its sympathies between the nominee and his accuser. Although Thomas was eventually confirmed by the closest margin in a century, the proceedings with their unremitting public inquiry into the nominee’s personal life, triggered a vigorous debate on the Senate’s conduct of the confirmation process.
Executive Branch Rejections
During the twentieth century, the Senate generally adhered to its tradition of confirming cabinet and other key executive nominees on the principle that presidents should be allowed a free hand in choosing their closest advisers. On only three occasions (1925, 1959, and 1989) did the Senate reject proposed cabinet officers, while other major executive nominees were specifically rejected fewer than thirty times.
In 1947, President Harry Truman recognized the difficulty of getting nominations approved by a Senate controlled by the opposition party. When the Senate passed to Republican hands that year, bringing divided government for the only time in the century since 1919-1921, Truman sought to avoid controversy by selecting individuals he thought would be readily acceptable to the Senate. As a result the Senate did not reject any of his appointees, but in 1948 it failed to act on 11,122 nominations in the misplaced hope that a Republican would be elected president that year and would fill the positions with Republicans in 1949.
On October 14, 1949, the Senate, back under Democratic control, voted 15 to 53 to reject Truman’s nomination of Leland Olds to a third term on the Federal Power Commission. Olds, a ten-year veteran of the commission and an outspoken advocate of strict federal regulation for privately owned utilities, had become the target of powerful oil and gas interests. Freshman Senator Lyndon B. Johnson (D-TX), seeking to ingratiate himself with those interests and to shed his New Deal reform image, led the attack on the liberal Olds. Johnson eagerly gained the chairmanship of the hostile Commerce subcommittee that conducted the confirmation hearings. The subsequent proceedings demonstrated the difficulty of reconfirming a controversial public figure with powerful enemies eager to settle old grievances. At a time of intensifying national paranoia about communism, Johnson abandoned any pretense of fairness and allowed witnesses to pillory Olds for communistic sympathies on the basis of articles he had written more than two decades earlier. Following the subcommittee’s unanimous vote of rejection, Truman sought to make this contest a matter of party loyalty. Democratic senators angrily opposed the president’s interference in the confirmation process and provided the votes to bring about this rare rejection of an incumbent official.
On June 19, 1959, by a dramatic 46-to-49 roll-call vote, the Senate rejected President Dwight Eisenhower’s nomination of Admiral Lewis Strauss to be secretary of commerce. Strauss was a seasoned administrator who expected quick approval to this essentially noncontroversial post. Like Leland Olds, however, he had accumulated powerful enemies as the outspoken head of a regulatory commission. Consequently, Eisenhower was unwilling to risk a defeat by renominating him to that agency. Several factors also evident in hotly contested Supreme Court nominations existed in the Strauss case. It occurred in the seventh year of a Republican presidency with Democrats in control of both houses of Congress. The 1958 elections, reflecting public dissatisfaction with Eisenhower administration policies, shifted thirteen Senate seats — a record number — from Republican to Democratic control. This gave the Democrats a 64-to-34 majority as party leaders laid their plans to regain the White House in the upcoming 1960 presidential election. In a gesture of defiance reminiscent of its performance on the Olds nomination, the Senate Commerce Committee delayed considering the nomination for two months. When the hearing began, the nominee immediately fueled the committee’s antagonism by his evasive responses to members’ questions and his demand to cross-examine hostile witnesses, including senators. Strauss’ repeated expressions of disdain and condescension antagonized key senators and fatally eroded his support. Appearing to question the Senate’s constitutional prerogatives, the imperious Strauss personified the worst elements of executive-branch domination at precisely the time that the Senate sought to cast off such control and had acquired the Democratic majorities to do so.
Three decades passed before another cabinet nominee suffered an identical fate. John Tower (R-TX) had served twenty-four years in the Senate when he retired in 1985. During those years his Senate colleagues came to resent his abrasive manner. But when President George Bush nominated Tower as secretary of defense in January 1989, few guessed that defeat lay ahead. During an investigation by the Senate Armed Services Committee, which Tower had chaired less than five years earlier, his opponents among the Senate’s Democratic majority built a case against his character rather than his competence. Confronted with evidence of Tower’s “womanizing,” abuse of alcohol, and questionable financial dealings with defense contractors, the Senate engaged in one of the most rancorous debates in modern times before killing his nomination by a largely party-line vote of 47 to 53. Not only did Tower become the first nominee of a new president’s initial cabinet ever to be rejected, but also the first former member to be turned down by his former colleagues for a cabinet post. Tower subsequently died in a plane crash while promoting his book, Consequences: A Personal and Political Memoir, attacking the Senate’s role in his defeat.
Throughout the nation’s history, the Senate and the president have maintained a guarded relationship in their joint constitutional responsibility for appointments to major executive and judicial positions. Contrary to recurring claims that a nominee’s philosophy or ideology traditionally have not been legitimate sources of Senate attention, senators have routinely considered these matters, even if they veiled their concerns in more acceptable objections over the nominee’s ability and character. Among all appointments, those to the Supreme Court have assumed a far greater significance than those to lower judicial posts and executive positions. For these other posts, at both the national and state levels, the major value of the confirmation process has been to provide an airing of the nominee’s views, to serve as a reference point against which to measure his or her future performance. Only in the most blatant instances of unsuitability have these lesser nominees been rejected.