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.
When a seat opened up on the high court, however, Jackson took the opportunity to thumb his nose at the Senate by nominating Taney. Once again, the Senate sent him packing. Six months later, after the death of legendary Justice John Marshall, Jackson renominated Taney and sent the nomination to a marginally realigned Senate. This time, Jackson overcame the opposition of powerhouses like Henry Clay, John Calhoun, and Daniel Webster, who feared Taney would undermine the nationalism of the Marshall court. Taney was not only confirmed but was confirmed as chief justice.
Powerless. The struggles of Washington and Jackson paled in comparison with the ordeals of less powerful figures. In the 19th century, unpopular presidents endured a series of embarrassing defeats. In nearly every case, "the nominees are minor details," says Melvin Urofsky, professor of law and public policy at Virginia Commonwealth University. This was especially so for President John Tyler, who saw more of his Supreme Court nominees rejected than any chief executive in history. Dubbed "His Accidency" after President William Harrison died at the beginning of his first term in 1841, the suddenly elevated vice president had no constituency of his own. Furthermore, his own party, the Whigs, loathed him for political stances closely aligned with the rival Democrats. Tyler had the chance to fill two Supreme Court seats, but these opportunities only contributed to his undoing. In a series of battles with powerful Whig senators (Henry Clay again led the opposition), Tyler lost an embarrassing five nominations for the seats, with one candidate nominated twice and defeated both times. As president, Tyler saw nearly his entire cabinet resign and was expelled from his own party. But he did enjoy one victory. In the waning days of his presidency, Tyler nominated to the court the esteemed Samuel Nelson, who was overwhelmingly confirmed. The second seat remained open for incoming President James Polk.
President Andrew Johnson, who was loathed by northern lawmakers for his southern sympathies after the Civil War, suffered his own Supreme Court humiliation when an opening occurred in 1865. After a year of deliberating, Johnson nominated his attorney general, Henry Stanbery, a popular Ohio Republican. But, according to Henry Abraham, author of Justices, Presidents, and Senators : "It is doubtful the Senate would have approved God himself had he been nominated by Andrew Johnson." The Senate didn't just refuse to act on Stanbery; it abolished the seat and reduced the size of the court from 10 to eight as other vacancies occurred. Congress increased the number to nine when Grant became president.
The partisan bickering notwithstanding, "[The Supreme Court] was not seen as that big a deal until the late 19th century," Urofsky says. That's when conservatives opposed to the growth of liberal social programs "realized [the court is] their bastion against reform legislation, and reformers realize it's blocking their legislation."
Against that backdrop, it's no accident that the nomination of the progressive lawyer Louis Brandeis, by Woodrow Wilson in 1916, ignited the first modern nomination battle--one frequently compared to that of Bork.
Brandeis was not antibusiness, but he had fought monopolies as a lawyer, calling them the "curse of bigness." Brandeis's nomination sparked lobbying by big business titans like J. P. Morgan. The battle also played out in the press, as described in the Congressional Quarterly's Guide to the U.S. Supreme Court . It quotes Clarence W. Barron, publisher of the Wall Street Journal, as saying Brandeis's nomination had one redeeming feature: "It will assist to bury Mr. Wilson in the next presidential election." Much of the opposition seemed rooted in the fact that Brandeis was Jewish as well as in personal politics. Former President Taft, who wanted the seat for himself, told his friend Henry Cabot Lodge that Brandeis's nomination was "an evil and a disgrace." Brandeis refused to comment on the confirmation debate, which lasted four months. Imposing party discipline, President Wilson finally pushed through a vote for Brandeis, who was confirmed 47 to 22. Unlike scores of other nominees who saw their personal fortunes sink in political battles, Brandeis emerged unscathed--and made the history books in his own right. Says O'Hara: "He ended up being one of the best justices of all times."
This story appears in the September 12, 2005 print edition of U.S. News & World Report.