A Supreme History of Conflict
Battling over nominees to the high court is a rich and storied tradition
By all accounts, John Roberts will be confirmed to take his place on the high court in a month's time as America's 109th Supreme Court justice. But before it's over, Democrats on the Senate Judiciary Committee intend to rough him up a bit.
For many, the partisan scrapping recalls the failed nomination of Robert Bork in 1987. The Bork fight had it all: overheated rhetoric, warring ideologies, and lingering bitterness among conservatives. The bruising battle over Bork is widely considered one of the most contentious ever. But it was hardly the first.
In fact, bare-knuckle battling has always been part of the process. Of the 148 people nominated to the highest court, 28 have failed to be confirmed. Only a handful were rejected because the candidates were perceived as unqualified. The rest? Politics. "Almost never has a Supreme Court [nominee] been defeated because he was inept . . . . " says James O'Hara, a former legal professor at Loyola College in Baltimore and a trustee of the Supreme Court Historical Society. "Almost always, it's a battle between a significant portion of the Senate and the president." Nominees weren't actually present at confirmation hearings until 1925. But even in the earliest days of the high court, when it carried little prestige (some justices quit the bench to return to private practice), political crossfire took down many a nominee.
Firestorm. The first fight came with the first president--a nearly deified figure in the new nation. But George Washington appeared quite mortal when he nominated John Rutledge, a former governor of South Carolina, to replace Chief Justice John Jay in 1795. Rutledge was a defender of slavery and an advocate of exclusionary voting practices, but that's not what sparked outrage in the Senate. Federalist newspapers and a cadre of northern senators attacked Rutledge for a speech in which he criticized a new treaty with Great Britain. As Peter Irons details in A People's History of the Supreme Court, a whispering campaign ensued alleging that Rutledge's fiery speech was proof that he was "deranged in his mind," according to Attorney General Edmund Randolph, who reported the rumors to President Washington. Whether or not Rutledge was mentally unstable or just a firebrand orator remains a matter of debate, but after seeing his bid go down to defeat by a final vote of 10 to 14, Rutledge attempted suicide. He died a few years later.
In 1835, President Andrew Jackson deliberately ignited his own Supreme Court firestorm by nominating close friend Roger B. Taney. Taney was already radioactive; he'd served as Jackson's secretary of the treasury via a controversial recess appointment after two former secretaries refused to withdraw government funds--as Jackson had requested--from the Second Bank of the United States. The Second Bank was a semipublic institution that acted as the federal depository, which Jackson considered unconstitutional. Taney complied with Jackson's request, but he paid for his loyalty when outraged bank supporters in the Senate refused to accept his nomination to the treasury secretary's post.