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How many Supreme Court nominees didn’t end up on the court? You might be surprised.

I’m certainly not making any predictions on how the Brett Kavanagh nomination ends up. (I certainly didn’t foresee any of the major developments since the original portion of his confirmation hearings wrapped up with Sen. Cory Booker’s “Spartacus moment” and a few other semi-climactic moments.)

But a buddy of mine, who shares my obsession with historical background, asked me if I knew how often a Supreme Court nomination has ended in failure, if by “failure” one means that the nominee didn’t end up serving on the high court. I would have guessed fewer than 10. But I looked it up.

The answer is 30. We’ve had only 44 presidents (if you don’t count Grover Cleveland twice). We’ve had just 113 jurists approved for Supreme Court service. And – surprisingly, at least to me – we’ve had 30 individuals who were at least nominated by a president to wear the black robes, but weren’t confirmed and didn’t serve. Exactly half of the 44 presidents had at least one case.

And, of course, the most recent case was just two years ago, when President Barack Obama nominated Judge Merrick Garland to the Supreme Court, and Republicans decided (based on bogus precedents) that it was too late in Obama’s term to consider any of his nominees.

But 30 cases. That surprised me and, in case it surprises you, I pass it along.

This link will get you the list, in chronological order, with a bit of discussion of each case, and the instances broken into categories. And by the way, I’m not counting the (surprisingly many) cases in which a nominee didn’t make it on the first try (usually by their own choice and without getting far into the process) but later served on the court. The 30 cases all got at least as far as being nominated by the president, but never served on the court.

I should hasten to add that the 30 nominations come in different flavors. Just 10 of the cases resulted from a final negative vote on the Senate floor. (Two of those under Richard Nixon, and two under Grover Cleveland.)

Others withdrew from considerations when it became clear that they would not be confirmed. That happened with the second-most-recent case of Harriet Miers, nominated by George W. Bush in 2005, but withdrawn after she made such a bad impression during her early on meetings with senators that Bush was advised to find someone else.

Several nominees, especially in the early days of the republic, declined to go forward. There were nominations that were simply postponed until the president who had nominated them left office, and the new president decided to nominate someone else.

The reasons for the failed nominations are all over the map too. If you find this interesting, the link above will get you the full list, and you can follow the links inside that page to get the details of each case. But in case you aren’t that motivated, I’ll just pass along a couple of paragraphs explaining what went wrong with one of the nominees, (and the one who came closest to being confirmed).

Judge John J. Parker
Judge John J. Parker
Judge John J. Parker was nominated by President Herbert Hoover in 1930 (I should mention here that, obviously, some of the nominees who failed were related to the low popularity of the president who nominated them) and the nomination failed by just one vote, 39-41, since if one of the nay voters had switched to aye, it would have created a tie and the vice president would have put Parker on the bench.

But aspects of Parker’s work history alienated several groups, for example (this is from Parker’s Wikipedia page):

“Parker was opposed by labor groups because of an opinion he had written regarding the United Mine Workers and yellow-dog contracts and by the nascent NAACP because of remarks he had made while a candidate for Governor in 1920 about the participation of African-Americans in the political process: “The participation of the Negro in politics,” said Parker, “is a source of evil and danger to both races and is not desired by the wise men in either race or by the Republican Party of North Carolina.”[3] The NAACP asked Parker if he had been quoted correctly, and asked him if he still held such views. He never responded.”

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Comments (7)

  1. Submitted by Ray Schoch on 09/25/2018 - 09:09 am.

    Sigh. And plenty of Judge Parker’s philosophical and political descendants are still with us…

  2. Submitted by Paul Brandon on 09/25/2018 - 09:28 am.

    The Republicans are big on alternative precedents.

  3. Submitted by Connie Sullivan on 09/25/2018 - 01:59 pm.

    Nice list. Amazing, how few nominations were unsuccessful in the past 88 years! The norm seems to have become: refuse this nominee at your own peril?

    I wonder if any of the failed–or successful–nominees polled as badly as Brett Kavanaugh is polling. Evidently a solid majority of Americans believe that this nominee doesn’t belong on the Supreme Court, or that there ought to be at least a significant delay in the public hearings until a full and careful FBI investigation (re-opening the background check on him) can be done.

    Most Americans are asking: Why does the President refuse to order an FBI investigation into Kavanaugh’s youthful .. . exploits? It’s Donald Trupp who’s standing in the way of a fair consideration of Kavanaugh, and of his now muiltiple accusers of sexual misbehavior.

    • Submitted by Paul Brandon on 09/25/2018 - 05:24 pm.

      But of course what Kavanaugh is accused of are just the sort of acts that Trump himself brags about committing.
      The real issue is whether Kavanaugh is lying in his testimony. Remember, Bill Clinton was impeach not for committing sex acts, but for lying to Congress about them.

      • Submitted by RB Holbrook on 09/26/2018 - 10:29 am.

        You’re giving Trump credit for far more self-awareness than the man possesses.

        He is not ordering an investigation because it would be seen as an implicit admission that maybe, just maybe, something he did was not perfect. When you have an ego-driven presidency, any hesitation or admission of error, however oblique, just can’t happen.

  4. Submitted by Curtis Senker on 09/25/2018 - 07:35 pm.

    One more on the way to make it even more rare.

  5. Submitted by Tom Clarke on 09/28/2018 - 08:46 am.

    How about Abe Fortas? How would you list him? Excerpt from wiki article about ol Abe:
    Nominated by Johnson to the Supreme Court in 1965, Fortas was confirmed by the Senate, and maintained a close working relationship with the president. In 1968, Johnson tried to elevate Fortas to the position of Chief Justice, but that nomination faced a filibuster at least in part due to ethics problems that later caused Fortas to resign from the Court. Fortas returned to private practice, sometimes appearing before the justices with whom he had served.
    Thanks for a great article and list. Tom Clarke

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