University of California, Hastings College of the Law UC Hastings Scholarship Repository Faculty Scholarship 1991 Getting There: A Brief History of the Politics of Supreme Court Appointments Calvin R. Massey UC Hastings College of the Law, [email protected] Follow this and additional works at: http://repository.uchastings.edu/faculty_scholarship Part of the Courts Commons Recommended Citation Calvin R. Massey, Getting There: A Brief History of the Politics of Supreme Court Appointments, 19 Hastings Const. L.Q. 1 (1991). Available at: http://repository.uchastings.edu/faculty_scholarship/492 This Article is brought to you for free and open access by UC Hastings Scholarship Repository. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of UC Hastings Scholarship Repository. For more information, please contact [email protected]. Faculty Publications UC Hastings College of the Law Library Author: Calvin R. Massey Source: Hastings Constitutional Law Quarterly Citation: 19 HASTINGS CONST. L.Q. 1 (1991). Title: Getting There: A Brief History of the Politics of Supreme Court Appointments Originally published in HASTINGS CONSTITUTIONAL LAW QUARTERLY. This article is reprinted with permission from HASTINGS CONSTITUTIONAL LAW QUARTERLY and University of California, Hastings College of the Law. COMMENTARY Getting There: A Brief History of the Politics of Supreme Court Appointments by CALVIN R. MASSEY* The history of Supreme Court nominations is replete with contro- versy, acrimony, and partisan politics. Approximately one of every five nominees has failed. Twelve of the 29 failed nominations were rejected outright by the Senate. The remaining nominees either withdrew or their nominations were postponed by Senate parliamentary maneuvers until a new President assumed office. I will review this history by dividing it into the following four relevant categories: (1) failed nominations; (2) controversial but successful nominations; (3) instances in which-the Pres- ident nominated the Senate's choice; and (4) instances in which the Presi- dent has let the Court (or an individual Justice) dictate the choice. The historical account which follows is not exhaustive;1 rather, it is a some- what impressionistic account designed to place the current battles over nominations to the Court in perspective. Vendors of history are often asked to justify their wares in terms of their contemporary significance or utility. I have anticipated that de- mand by providing, in my conclusion, some thoughts about the lessons that may be drawn from this history and by proposing that nominations to the Court be confirmed only upon the approval of two-thirds of the Senators present and voting. * Professor of Constitutional Law, University of California, Hastings College of the Law. 1. For a thorough account, see HENRY J. ABRAHAM, JUSTICES AND PRESIDENTS: A POLITICAL HISTORY OF APPOINTMENTS TO THE SUPREME COURT (2d ed. 1985). For an- other useful summary, containing a valuable tabular record of nominations to the Court and their disposition, see LAURENCE H. TRIBE, GOD SAVE THIS HONORABLE COURT (1985). HeinOnline -- 19 Hastings Const. L.Q. 1 1991-1992 HASTINGS CONSTITUTIONAL LAW QUARTERLY [Vol. 19:1 I. Failed Nominations Nominees have failed for a variety of reasons, but the following have been the most common: opposition to the President, not necessarily the nominee; opposition to the nominee's political views; and doubts about the ability or integrity of the nominee. A. Opposition to the President Candidates for the Court are rejected based on general opposition to the President when the President is politically vulnerable for reasons un- related to the nomination process. A few examples will illustrate this point. The election of 1824 produced no clear victor. Although Andrew Jackson received the most electoral votes, he failed to obtain a majority. As a consequence, the election was determined by a vote of the House of Representatives, which selected John Quincy Adams to be President by a very slim margin. The election was the product of a bargain struck be- tween Adams and Kentucky's Whig Senator Henry Clay. Clay delivered the critical votes to elect Adams as President, and Adams made Clay his Secretary of State. As a result, Adams was politically wounded from the beginning of his Presidency. Thus, although Adams nominated Ken- tucky's former Whig Senator John Crittenden to the Court in December 1828, it was predictable that loyal Democrats in the Senate would want to reserve the appointment for the incoming Andrew Jackson, elected the month before. The Senate did nothing until February 1829, when by a strictly partisan vote of 23 to 17 it postponed consideration of Crit- tenden's nomination. A month later Andrew Jackson assumed the Presi- dency and Crittenden's candidacy was ended. In all of this Crittenden was almost irrelevant; the contestants were Jacksonian Democrats and a lame duck President. In 1840 the Whigs achieved presidential success with the election of the fusion ticket of Whig stalwart General William Henry Harrison as President and the former Democratic Senator from Virginia, John Tyler, who had broken with Andrew Jackson and the Democrats over the nulli- fication crisis and the Force Bill, as Vice President. Barely a month into his term, Harrison died and Tyler assumed the Presidency. Tyler lacked a personal political base and was suspected by congressional Whigs, led by Senator Henry Clay, of being more of a Democrat than a true Whig. These suspicions were quickly fueled when Tyler twice vetoed a favorite HeinOnline -- 19 Hastings Const. L.Q. 2 1991-1992 Fall 1991] HISTORY OF SUPREME COURT APPOINTMENTS 3 Whig project, revival of the Bank of the United States.2 When two vacancies on the Court developed, and Tyler was con- fronted with a Whig majority in the Senate, the result was predictable. Tyler's first nominee, John Spencer, was a veteran Whig who had held two cabinet posts under Tyler, but who had incurred the implacable en- mity of Henry Clay. Thus, "it was with more ease than the rejection vote of 21:26 indicates that the Clay faction succeeded in blocking Spencer." 3 Tyler then sent up Reuben Walworth, a sitting New York judge who was opposed by both the Senate Whigs and the two Democratic Senators from New York.4 The Senate voted to postpone Walworth's nomination and the also pending nomination of Judge Edward King, "a distin- guished Philadelphia lawyer and legal scholar."5 It was mid-summer and the Whigs scented electoral victory in No- vember. It would be far better for these seats to be filled by the grand old man of Whiggery, a newly inaugurated President Henry Clay, than by the pseudo-Whig John Tyler. Tyler would not quit easily, however. The Whig strategy had backfired in November, for Democrat James Polk had defeated Clay and the vacant Court seats were sure to be filled by a Dem- ocratic President. Reasoning that he ought to be the President filling the vacancies, Tyler renominated King in December but the Senate simply ignored the nomination. Tyler tried twice more, sending up the distinguished and eminent Samuel Nelson, Chief Justice of the highest court of appeal in New York, and John Meredith Read, a former United States Attorney from Phila- delphia with supporters in both the Whig and Democratic camps. The Senate quickly confirmed Nelson, probably on the basis of his profes- sional stature, but adjourned without ever acting on Read's nomination. Tyler thus acquired the dubious record of making six nominations with only one success. His failures are attributable to his low political for- tunes - as an apparent Democrat and accidental successor to a Whig President confronting a powerful Whig adversary in the form of Henry Clay - rather than to evident deficiencies in his nominees. Lame duck Presidents, for obvious reasons, have fared poorly with Court nominations. In 1852 and early 1853, a Democratic Senate re- fused to consider Whig Millard Fillmore's nomination of Senator George Badger and two others in order to preserve the seats for the incoming 2. ROBERT V. REMINI, ANDREW JACKSON AND THE COURSE OF AMERICAN DEMOC- RACY, 1833-1845, at 475-76 (1984). 3. ABRAHAM, supra note 1, at 105. 4. Id. at 28, 105. 5. Id. at 105. HeinOnline -- 19 Hastings Const. L.Q. 3 1991-1992 HASTINGS CONSTITUTIONAL LAW OUARTERLY [Vol. 19:1 Democratic President, Franklin Pierce. Badger's case was particularly touchy, for it required the Senate to spurn one of its own members, which the Senate did by a one vote margin.6 After Lincoln's election, in December 1860 James Buchanan nominated his Attorney General, Jer- emiah Black, and watched the Senate reject him by a single vote7 because Republican Senators wanted to keep the seat for Lincoln. Andrew Johnson found himself in a political situation akin to that of John Tyler - an accidental successor to a President from a different party - but with both passions and political stakes greatly enlarged by the end of the Civil War. Unless Johnson had administered the Presi- dency as dictated by the Radical Republicans in the Congress it is hard to imagine how he could have had success with any nomination to the Court. Johnson nominated his able Attorney General, Henry Stanbery, but Radical Republicans in the Senate not only blocked the nomination but abolished the seat and, for good measure, provided that the next va- cancy would be abolished as well. "[I]t is doubtful that the Senate would have approved God himself had he been nominated by Andrew Johnson." 8 When Grover Cleveland reassumed the Presidency after Benjamin Harrison's interregnum, he attempted to fill the vacancy created by the death of New York's Samuel Blatchford with another New Yorker, Wl- liam Homblower, a 42 year old corporate lawyer. Cleveland failed to anticipate the reaction of New York's powerful Democratic Senator David Hill.