How Often Have Supreme Court Nominees Been Rejected?

Many presidents' nominations of justices to the Supreme Court go through uncontested, but some have gotten seriously sticky. Learn the history of Supreme Court nominations in this episode of BrainStuff.

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Episode Transcript

Speaker 1 (00:02):
Welcome to brain Stuff from How Stuff Works, Hey, brain Stuff,
Lauren voglebam here. When a U. S President nominates someone
to take over a seat on the Supreme Court, things
don't always turn as contentious as they do these days.
Since the Supreme Court was established in sevent nine, presidents
have sent a hundred and sixty three names to the
Senate for approval. The Senate has so far approved a

(00:24):
hundred and twenty six of them. That's about seventy seven,
although seven have also turned down the appointment. Some of
the nominees have faced a tougher road than others. Of course,
roughly twenty three don't make it. Some of those were
outright rejected. Some nominees take their names out of consideration.
The Senate didn't even bother to vote on ten of
the president's recommendations, most notably that of Merrick Garland, who

(00:46):
was nominated by President Barack Obama in twenty six toward
the end of his second term. Often, though the chosen
ones breathe through the process. Current Associate Justice Ruth Bader
Ginsburg want a Senate vote of ninety six to three three.
In the nineteen eighties, President Ronald Reagan nominated three judges
who were voted onto the bench unanimously, Sandra Day O'Connor,

(01:07):
the first woman to serve on the court, anton In Scalia,
and Anthony Kennedy. We spoke with John Michaels, a professor
at the u c l A School of Law. He said,
it's supposed to be a kind of collaboration. There's an
understanding that there's deference paid to the president's nominee, so
there has to be something problematic about that nominee to
not go forward, but welcome to Now these days, in

(01:30):
a politically fractured nation, things aren't nearly as easy. Something
problematic is always on hand. Collaboration is a dirty word.
A Republican led Senate, at odds with President Obama sixteen
sat on Garland's domination, refusing to even hold a hearing
when President Donald Trump took office in January seventeen and
nominated Neil Gorstch to the bench instead. The Gorsetch passed

(01:53):
the Republican led Senate, but just barely, with a fifty
four to forty five vote, and only after Republicans changed
Senate rules to prevent a Democratic filibuster. Even getting to
the Senate vote is sometimes tricky, as U. S. Circuit
Court Judge Brett Covna found out in the late summer
of eighteen, Kavanaugh was nominated by Trump to take over
the seat of retiring Supreme Court Associate Justice Anthony Kennedy,

(02:15):
and things turned ugly quickly. Democrats, stinging from the Garland
snub and the way the Senate pushed through Gorset, and
fearing a conservative turn that could impact Supreme Court decisions
for decades, hounded Covenaugh's nomination, and when several women days
before the Judiciary Committee vote accused Covena of sexual assault,
Democrats and a key Republican or too called to reopen

(02:37):
the FBI background investigation into the nominees past and angry tiry,
Covena was forced to defend himself in front of a
very public hearing of the committee. But Kavanaugh is not
the first to be put through the nomination ringer. The
very first nominee to the Supreme Court to be rejected
was John Rutledge in s Rutledge had been one of
the original Associate Justices, but resigned before hearing a case

(03:01):
to return to South Carolina. When George Washington tapped him
again to serve as Chief Justice during a Senate recess,
he returned. During his brief tenure, Rutledge criticized the administration,
and rumors of mental illness and alcohol abuse spurred on
by the opposing party press, were rampant. When the Senate
convened and had a chance to vote, it rejected him
fourteen to ten. He's the only recess appointed judge that

(03:23):
didn't later earn a Senate nod. And here are and
skipping ahead, here are the most recent. Harriet Myers, the
former Council to President George W. Bush, was nominated to
replace retiring Associate Justice Sandra Day O'Connor in October of
two thousand five. It was a surprising choice in that
Myers had never been a judge. She also had been

(03:44):
Bush's personal lawyer for many years, going back to his
time in Texas, which raised flags that the appointment might
be too political. Meyers struggled with constitutional questions posed to
her by the Senate Judiciary Committee too. In the end,
with strong signs that she would not be approved, she
withdrew from consideration. Clarence Thomas, meanwhile, was a George H. W.

(04:04):
Bush nominee, A staunchly conservative Thomas went through tense hearings
in front of the Judiciary Committee in and then Anita Hill,
a former employee of Thomas's, showed up with charges that
Thomas had sexually assaulted her. Michael's spoke about those hearings.
He said, if you go back and watch some of
the ways that senators were questioning Unita Hill, it's not

(04:24):
even whether we believe them or not. We weren't really
understanding what the problems were. Thomas would end up passing
fifty eight. He still serves on the Court. Robert Bourke
is the most recent nominee rejected by the full Senate.
Reagan put his name in in Bourke was voted down
by the Judiciary Committee, but refused to withdraw his name

(04:45):
from consideration, making the Senate vote on him. The conservative
Bork scared many with his views on privacy, civil rights,
women's rights, and his belief that the Constitution should be
interpreted through the eyes of those who framed it. His
contentious hearings led to the verb borking from Ariam Webster
to attack or defeat a nominee or candidate for public
office unfairly through an organized campaign of harsh public criticism.

(05:07):
Or vilification, and there have been others. President Richard Nixon
had two Supreme Court nominees rejected, Clement Haynesworth, Jr. In
nineteen seventy and g. Herald Carswell in nineteen sixty nine.
Cars Well was the first at the time to be
voted down since nineteen thirty. Both were shot down for
their past views on civil rights and racial equality. We'd

(05:29):
like to think that the Supreme Court, being the last
stop on the road to justice, would be able to
put aside partisanship in politics to make well reasoned judgments
on what is best for the country. But justices have
views too, and they are appointed by presidents who have
their own views and voted on by representatives who have
yet their own. It's not surprising, then, that these nominees
are put through a ringer by opposing parties. As much

(05:51):
as we may hate to see a nominee's life turned
upside down by the process, it's not just their lives
on the line, it's the fate of the country. Michael's
explained it this way. It is a little weird to
have a system so dependent on a very partisan choice
by president when the choice just depends on when people die.
You can just get lucky or unlucky. It would be
nice in a perfect world if presidents and senators did

(06:13):
not play power politics with the courts, but that would
be naive, especially since the court plays a central role
in American political, social, and economic life. Today's episode was
written by John Donovan and produced by Tyler. Playing. For
more illness and lots of other vigorously approved topics, visit
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