Congress is readying itself for a partisan confirmation fight over President Donald Trump’s nomination of Judge Brett Kavanaugh to replace retiring Justice Anthony Kennedy on the U.S. Supreme Court. But since the court’s inception in 1789, only 37 of its 163 nominees have not made it through the confirmation process. The odds don’t favor those opposed to Kavanaugh’s appointment. And to make the margins even slimmer, a large portion of the unsuccessful nominations were tied to just a few presidents.
University of Colorado Law School professor Richard Collins, who teaches constitutional law, said not all the in-stances of unsuccessful nominations lend themselves to statistical analysis, such as those when an individual was nominated and confirmed but then declined to serve, which has not happened since 1882. In the early days of the court, he said, factors such as difficulty of transportation or health problems made a nominee’s refusal innocuous.
One of the notable clusters of rejections, he said, belongs to President John Tyler. He had the task of filling seats left vacant by Justices Smith Thompson and Henry Baldwin, and nominated nine people only to fill Thompson’s seat with Samuel Nelson. Baldwin’s replacement, Justice Robert Grier, was confirmed under President James Polk.
Collins said Tyler’s status as an “accidental” president who took over afterPresident Henry Harrison died shortly after inauguration contributed to his difficulty getting Supreme Court nominees confirmed, because he was not seen as particularly intelligent, and his views as a Southerner and supporter of slavery meant he did not fi t as a whole with theWhig party that elected Harrison.
“He distorts the statistics a lot,” Collins said. “If you take him out, the number of rejections and withdrawals over that period of time is not that remark-able.”
President Ulysses Grant also saw some trouble filling vacancies with eight total nominations, though they were for four total seats and he did manage to fill all of them. He had the task of filling one new seat, which was a result of volatility in the size of the court around the Civil War.
At that time, Congress raised the number of seats from nine to 10 to give President Abraham Lincoln the ability to dilute the influence of pro-slavery justices on the court. But when President Andrew Johnson took over, Congress reduced the number of seats to seven soJohnson, a Southerner, would not have the chance to appoint any justices. Collins joked that the court never actually got down so low because not enough of the justices died, but Grant never the less had one new seat to fill once the court increased the seats to nine again.
Then the years from 1895 through the end of President Lyndon Johnson’s administration in 1968 only saw one nominee rejected and one withdrawn, though Collins couldn’t pinpoint a particular reason for the long stretch.
“Given the importance of the court and the interests involved, that’s quite an amazing run,” he said. By contrast, since 1969, six nominees have not been confirmed.
And one practice, Collins said, that seems a given today actually became standard only under President Richard Nixon: Nominating politically polarizing justices. Collins said Nixon recognized how powerful of an institution the court had become and, more over, the increased importance of who was appointed. The court’s power increasing coincided around the Great Depression period, Collins said, when it first began began actively enforcing the Bill of Rights, especially clauses commonly invoked in cases today.
“The court we know today just doesn’t resemble the 19th century court very much.”