Failed Supreme Court Nominees

I got some questions from listeners after talking the other day about how 18% of all Supreme Court nominees have not made it to the bench, so I thought I would take a look at some of that history.

Going all the way back to George Washington, who had two nominees blocked by the Senate, the battles over Supreme Court nominations don't have much in the way of similarities.

Other than being part of an overall power struggle in Washington, D.C.

Democrats have had the most number of Supreme Court nominees stopped by the Senate, a total of eleven.

But that number is skewed because the Democratic Party has been around officially for a few more years than the Republicans.

All but one of those failed in the 19th century, with James Madison, James Polk and Grover Cleveland all seeing two setbacks apiece.  Lyndon Johnson is the last Democrat to have hit a road block on a Supreme Court nominee.

Some will quickly say that is evidence that Republicans have been hit harder in recent years - but don't forget - Sonia Sotomayor is only the third nominee by a Democrat in the last 42 years, so they haven't had much of a chance to see a Supreme Court choice go down in flames.

Republicans have had eight nominees fail.  Ulysses Grant leads the way with three of those, but one of them had been confirmed.  He never became a Justice, because the nominee died.

In the 20th Century, Herbert Hoover lost a nomination fight, Richard Nixon had two failed choices.

Ronald Reagan had one of the biggest media battles in the 20th century over the nomination of Robert Bork. After Bork's defeat, Reagan then wanted to name Douglas Ginsburg, but he withdrew before being nominated because of stories that he used marijuana.

Is there any pattern to these setbacks?

As I said above, the most frequent one is simply the overriding tussle between the Executive Branch and the Senate on nominations.

For example, in 1844-45, John Tyler made multiple nominations of three different people, and the Senate refused to act on them each time. Overall, four of his choices never made it to the Supreme Court.

Tyler was originally a Democrat, but was elected on the Whig ticket, and then basically disowned by the Whigs when he moved into the White House after the death of William Henry Harrison.

If you want to add Tyler to the Democratic column, that would give them 15, but I'll leave him in the "other" category, along with the Federalists and Washington.

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