Outside the Beltway

Failed SCOTUS Nominees

Steven L. Taylor
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Harriet-Miers-OfficialOne of the reasons that I tend to take a fairly dispassionate view of SCOTUS nominations and to focus primarily on the qualifications question is simply because the probabilities are that once a president makes a selection that the candidate will be confirmed.

Within my politically active life (i.e., the time in which I have paid attention to politics, i.e., roughly the end of the Carter administration), there have been only three failed nominees:

  • 1987:  Robert Bork
  • 1987:  Douglas Ginsburg
  • 2005:  Harriet Miers

Bork was famously rejected on ideological grounds after contentious hearings, leading to the transformation of his name into a verb.  Ginsburg, the replacement for Bork, withdrew because it become known that he had once used marijuana (yes, I know:  how quaint).

Miers famously withdrew after she was severely criticized from the right and the left on qualifications grounds (and many on the right doubted her ideological positions as well).

Given that from 1976 (the start of the Carter administration) to now that there have been 11 vacancies and only 3 failures (2 for the same slot), it is reasonable to start every nominations off with the assumption that the nominee will be confirmed.

Further, the odds of another Bork have radically decreased because presidents are fully aware of the risk they run appointing someone with a paper trail of similar length and depth as that of Bork’s.  Also, Miers was uniquely under-qualified for the position, a mistake that is unlikely to be replicated again anytime soon.

The Ginsburg scenario is actually the type more likely to re-emerge (i.e., some surprise personal issues that makes a candidate politically unviable).  And, of course, such a situation is rather impossible for the public to predict.  It is also something that is probably less likely today than it was 20+ years ago, as one presumes that the vetting process has become more thorough (because of Ginsburg, and because of the 24/7 news cycle and the awareness of how little things can be become huge in such an environment).

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12 responses to “Failed SCOTUS Nominees”

  1. charles austin Avatar
    charles austin

    They all seem to have only one relevant thing in common besides being nominated for Justice of the Supreme Court. Can you identify it?

  2. Steven L. Taylor Avatar
    Steven L. Taylor

    Yes, I recognize that they are all Republicans. However, I would further note that from 1976-2010, the Republicans occupied the WH for 20 years and the Democrats 14. Beyond that, Carter had 0 picks, Reagan 3, Bush 41, 2, Clinton 2, Bush 43 2 and Obama 1 (the way Kagan goes remains to be seen).

    As such:

    Republicans: 7 picks
    Democrats: 3 picks

    All in all the probabilities that Republicans would have more problems is higher than for Democrats.

    Bork is unique and has shaped all subsequent picks, but I will readily chalk his rejection up to ideology.,

    Ginsburg smoked pot in college and as a college prof. No Democrat would have survived those allegations in 1987. Indeed, I am not sure that post-college pot smoking wouldn’t kill a nomination today.

    Given the Miers was attacked from the right and the left, the notion that her Republicanness was relevant is off the mark as well.

  3. Clovis Avatar
    Clovis

    Berke Breathed reminds us that it was not simply smoking pot that got Ginsburg shot down; it was that he sparked up with Bill the cat.

  4. charles austin Avatar
    charles austin

    Actually, I think it is very relevant, not so much for the candidates per se, but for the roots of the opposition to them and the willingness to go so low by those in the Senate, especially when you throw in the same kind of opposition, albeit less successful, to the nominations of Roberts, Alito, and Thomas.

    Have any of the Democratic nominees faced the mean-spiritied ideological attacks that these Republican nominees faced?

    FWIW, IMHO, Bork was the one of the first shots over the bow that led to the end of bipartisanship and radical polarization in Washington, Ginsberg was a casualty of poor vetting, and Miers was a bizarre, unwarranted choice. But realistically, how can anyone say that Thomas, Alito, and Roberts don’t deserve to be on the Supreme Court and concurrently unhypocritically decry any ideological attacks on Kagan or any other Obama nominee?

  5. Steven L. Taylor Avatar
    Steven L. Taylor

    Ginsberg was a casualty of poor vetting, and Miers was a bizarre, unwarranted choice.

    Which begs the question of how the fact that they were nominated by Republicans explains anything.

    But realistically, how can anyone say that Thomas, Alito, and Roberts don’t deserve to be on the Supreme Court and concurrently unhypocritically decry any ideological attacks on Kagan or any other Obama nominee?

    In fairness, I did not mention Thomas, Alito or Roberts in the post.

    And every nominee receives some level of ideological attacks.

    None of this really gets to my basic point, which is that failure is unusual.

  6. charles austin Avatar
    charles austin

    Must have been those arch-conservative idealogues George H.W. Bush and George W. Bush. Although it is worth noting that neither Ginsberg or Miers was defeated by Democrats.

    I apologize for not expressing my thoughts clearly, but I have grown weary of being lectured by the Democratic leadership about a lack of bipartisanship considering their shabby treatment of each and every Republican nominee made.

  7. charles austin Avatar
    charles austin

    Perhaps it is a subtle difference, but I’m not claiming that they failed because they were Republicans so much as they failed because they were opposed by Democrats, specifically Democrats who have adopted the worst aspect of Machiavellianism as their guiding philosophical principle.

  8. Steven L. Taylor Avatar
    Steven L. Taylor

    But Charles, the point is that of the three, only Bork could be said to have been directly defeated by Democrats. Ginsburg’s marijuana usage caused his withdrawal and Miers was not just attacked by Democrats (indeed, perhaps not even mainly)–indeed, see my post a few minutes ago of Bork on Miers.

  9. charles austin Avatar
    charles austin

    Yes, but I am also referring to the way other nominees who passed the Senate were treated. The weel has been poisoned and yet we all still have to drink from it.

    As I have noted before, I believe presidents should be given wide latitude in approving their selections unless their choices have some serious, non-ideological, issue. I worry a bit about Kagan’s view on free speech and executive power, but find no reason to oppose her comnfirmation otherwise. Of course, this doens’t mean I look forward to her presence on the Supreme Court, unless she should turn out to be a pseudo-Souter. Turnabout is fair play.

    And speaking of turnabout, just curious, but what exactly was Senator Obama’s rationale again for opposing Roberts’ confirmation? That he wasn’t qualified?

  10. charles austin Avatar
    charles austin

    Yes, but I am also referring to the way other nominees who passed the Senate were treated. The well has been poisoned and yet we all still have to drink from it.

    As I have noted before, I believe presidents should be given wide latitude in approving their selections unless their choices have some serious, non-ideological, issue. I worry a bit about Kagan’s view on free speech and executive power, but find no reason to oppose her comnfirmation otherwise. Of course, this doens’t mean I look forward to her presence on the Supreme Court, unless she should turn out to be a pseudo-Souter. Turnabout is fair play.

    And speaking of turnabout, just curious, but what exactly was Senator Obama’s rationale again for opposing Roberts’ confirmation? That he wasn’t qualified?

  11. charles austin Avatar
    charles austin

    Sorry for the double post with one letter corrected. Feel free to delete this one and the offending post.

  12. Steven L. Taylor Avatar
    Steven L. Taylor

    Charles,

    I honestly can’t presume to speak for Obama and do not recall at the moment why he voted as he did. And, in fairness, it isn’t as if Sotomayor got 100% of the GOP vote. Such is the nature of things.

    Part of my point is that we all tend to see our side as getting beat up more than the other side and I am no convinced that this is the case, with the key exception of Bork.

    Beyond that, speaking for myself only, I have not attempted to analyze the relative toughness of the confirmation process based on partisanship, but rather have only attempted to look at failed nominees.

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