Republicans in Congress have vowed not to consider President Barack Obama’s Supreme Court nominee, Merrick Garland, to fill the high court’s vacant seat. This wouldn’t be the first time Congress balked at evaluating a president’s nominee in an election year. During the 1840s, it once took the executive and legislative branches of government two years to fill an empty seat on the bench. As a rule, though, the process of seating a Supreme Court justice has historically proceeded without much controversy. Yet in the past century, that has changed, as political divisiveness has led to some bitter fights over court nominations. Here are five nominations that sparked controversy and, in several cases, resulted in candidates being rejected.
5. Louis D. Brandeis (Supreme Court associate justice 1916-39)
After President Woodrow Wilson nominated a personal friend, Louis Brandeis, to the high court, former President William Howard Taft wasn’t shy about expressing his opinion of the choice. “He is a muckraker, an emotionalist for his own purposes, a socialist, prompted by jealousy, a hypocrite,” Taft wrote, and he didn’t stop there. Brandeis was often a sore loser when legal opinions didn’t go his way, and a less than gracious winner as well, given to gloating when he won a case. Brandeis considered himself a reformer; his opponents tagged him as a radical. Brandeis was also Jewish, and some of the opposition to him was due to anti-Semitism.
Brandeis’s nomination proved so controversial that for the first time in history, the U.S. Senate held public confirmation hearings on a Supreme Court justice. The Senate eventually confirmed Brandeis, although he had to wait longer (125 days) for his confirmation than any other justice in history. Obama’s latest nominee, Garland, seems certain to break that record. As for Taft, once he arrived as the Supreme Court’s chief justice in 1921, he and Brandeis had no problems working together.
4. Abe Fortas (Supreme Court associate justice 1965-69)
President Lyndon B. Johnson was on his way out of the White House in 1968, having already announced he would not seek re-election, when he chose associate justice Fortas to replace the retiring chief justice, Earl Warren. Fortas’s liberal views, particularly in race relations, were problematic to many conservatives in Congress. He also faced questions about university lecture fees he received from private interests with business that could come before the court. And while Fortas wasn’t the first Jew on the Supreme Court, he would’ve been the first Jewish chief justice, a distinction that mattered to some.
Unlike today, Republicans in Congress did not balk at considering LBJ’s choice. They did reject him, however. For the first time, the Senate used a filibuster to prevent a Supreme Court nomination from coming up for a vote. Johnson withdrew the nomination, and the chief justice’s seat would remain vacant until Richard Nixon’s presidency. As for Fortas, he left the court a year after this failed nomination, forced to resign because of a financial scandal.
3. Clement Haynsworth and G. Harrold Carswell
President John Tyler had a terrible record when it came to nominating persons to the Supreme Court; Congress rejected eight of his nine nominees. But Richard Nixon didn’t do so well, either. He might have had a better track record had it not been for the scandalized resignation of Fortas, which probably had Congress on high alert when it came time to consider Nixon’s suggested replacement, Clement Haynsworth. The year was 1969, and Haynsworth’s cautious record on civil rights failed to impress. There were also perceived ethical lapses, stemming from his ruling as a U.S. circuit judge in a case tied to a company in which he had part ownership. The Senate rejected Haynsworth by a 55-45 vote, its first rejection of a Supreme Court nominee since 1930.
Nixon then nominated G. Harrold Carswell, who had several shortcomings. He had formerly been a white supremacist, and 58 percent of his district court decisions had been overturned. As Sen. Roman Hruska (R-Neb.) famously said, “Even if he were 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?” Congress felt otherwise, rejecting Carswell. Nixon’s third choice to fill Fortas’s seat, Harry Blackmun, won confirmation in a 94-0 vote, and would serve on the court for 24 years.
2. Robert Bork
Pinpointing precisely when today’s highly polarized political environment first took root may be a fool’s errand, but President Ronald Reagan’s ultimately unsuccessful effort to place Robert Bork on the Supreme Court in 1987 is probably as good a place as any to start. Fourteen years earlier, President Richard Nixon had promised Bork the next opening on the court, only to resign a year later. Reagan picked him to replace retiring Justice Lewis Powell, a moderate, and Democrats in the Senate and various liberal-leaning interest groups were so loathe to see Powell replaced by a conservative that they promised a fight. Sen. Ted Kennedy (D-Mass.) delivered a blistering speech against Bork that set the tone for the contentious nomination process that followed, especially since the White House didn’t formulate a response for more than two months. Bork was an easy target for the Dems. He was a constitutional originalist, meaning he thought the U.S. Constitution should be interpreted only as originally intended, not a mainstream view. He didn’t believe a right to privacy existed in the founding documents, suggesting to many that he would vote to repeal Roe v. Wade.
The Senate eventually rejected Bork by a 58-42 vote, the most lopsided rejection in history. Bork’s name, however, lives on in infamy. Random House Dictionary defines the verb “bork,” as “to attack (a candidate or public figure) systematically, especially in the media.”
1. Clarence Thomas (Supreme Court associate justice 1991-present)
Thomas has sat quietly on the high court for a quarter of a century, quietly because he has virtually never asked a question from the bench. But his nomination proved to be a seminal moment of the 1990s. President George H.W. Bush chose Thomas to replace the retiring Thurgood Marshall, the first African American to serve on the Supreme Court. With Thomas, the racial make-up of the court could be maintained, although Thomas was considerably more conservative than Marshall, particularly on the issue of affirmative action. Consequently, civil rights groups such as the NAACP and the Urban League opposed Thomas’s nomination.
But the testimony of Anita Hill, however, truly rocked the process. The University of Oklahoma law professor alleged that Thomas had sexually harassed her while the two worked together at the Equal Employment Opportunity Commission. Carried live on national TV, the Senate hearing devolved into a case of he said/she said, with nothing definitively proven. But in the five years after Thomas’s confirmation, sexual harassment cases before the EEOC doubled, and court awards for victims quadrupled.
One More: Harriet E. Miers
Typically, the opposition to a Supreme Court nominee comes from the other side of the political spectrum. But after President George W. Bush picked Harriet E. Miers in 2005 to fill the seat of retiring Justice Sandra Day O’Connor, the loudest voices against the selection came from Bush’s own Republican Party. The emergence of the conservative tea party was still four years away at that point, but the Miers debacle was a sign of things to come. Her opponents, both in and out of Congress, claimed Miers wasn’t conservative enough in her judicial views, which was all they had to go on. She had no judicial experience. Meanwhile, Democrats actually accused Bush of caving in to conservative Republicans in nominating Miers, and took a dim view of the fact that they were close friends, assuming that was the chief impetus behind Bush’s choice since, again, she had no judicial experience.
That lack of a paper trail could have made her hearing before the Senate an awkward exercise, but Miers withdrew her nomination before it got to that point. Sen. Charles E. Schumer (D-N.Y.) believed at the time that the ill-fated Miers nomination would set a precedent, and since then all Supreme Court nominees — Samuel Alito Jr., Sonia Sotomayor, Elena Kagan and Merrick Garland — have had well-defined judicial philosophies.