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.
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 appointmentswhen 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.
Constitutional Convention
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.
Washington's Cabinet
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.
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.
Ante-Bellum Years
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
Executive Appointments
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.)
Supreme Court
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.
Twentieth Century
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.
Supreme Court
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.
Conclusion
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.
Cabinet Nominations Rejected, Withdrawn, or No Action Taken
