Answer Man: Court nomination fights date back to Washington

October 10, 2018

Answer Man, I need some encouragement. The polarization over Brett Kavanaugh’s appointment to the Supreme Court leaves me wondering if every court nomination is going to divide the nation. You’re a student of history. Has it ever been this bad? — Dan

It does look discouraging when you realize that Brett Kavanaugh’s 50-48 confirmation vote was similar to Justice Clarence Thomas’ 52-48 margin in 1991.

President Donald Trump’s other nominee, Neil Gorsuch, was confirmed on a 54-45 vote along mostly partisan lines. Of course, you’ll remember that Gorsuch succeeded Justice Antonin Scalia, whose seat on the high court was vacant for more than a year because the Republican-controlled Senate refused to give President Barack Obama’s nominee, Merrick Garland, a hearing.

But it’s been worse, much worse.

John Rutledge, an original member of the Supreme Court, was appointed by George Washington to be the second chief justice in 1795 after John Jay resigned. Washington named Rutledge as the new chief justice by a recess appointment. When the Senate reconvened, it rejected Rutledge’s nomination, because Rutledge gave a speech denouncing the Jay Treaty negotiated by his predecessor. That cost him support in the Washington administration and the Senate.

Devastated, Rutledge attempted suicide by jumping off a wharf into Charleston Harbor. He was rescued from drowning by two slaves. Rutledge withdrew from public life and returned to his home in South Carolina.

James Madison had one of his nominees, Alexander Walcott, voted down by the Senate. Madison had trouble filling the seat as two other nominees were confirmed but declined the appointment. After a yearlong vacancy on the court, Madison successfully nominated Joseph Story, who became one of the longest-serving Supreme Court justices in history.

John Tyler, the first vice president to ascend to the presidency when William Henry Harrison died a month after his inauguration, had four nominees rejected by the Senate. Despite his fractious relationship with the Senate, Tyler managed to get one nominee confirmed during the last month of his presidency.

Millard Fillmore, the next vice president elevated to the presidency after the death of Zachary Taylor, had three nominees who failed to be confirmed. Ulysses S. Grant also had three nominees who never made it the Supreme Court.

Grover Cleveland had two nominees rejected before two others were successfully confirmed. More recently, Lyndon B. Johnson withdrew two nominees when opposition arose. Richard Nixon had two nominees voted down by the Senate before he successfully nominated Harry Blackmun, the author of the landmark Roe v. Wade decision who once served as resident counsel for Mayo Clinic.

Even charismatic Ronald Reagan couldn’t persuade the Senate to confirm one of his nominees, Robert Bork, whose rejection prompted the creation of the verb “bork,” a slang term for opposing a candidate through systematic vilification.

In all, 25 nominees failed to be placed on the Supreme Court, either by losing a confirmation vote or having their nomination lapse. But let’s not forget that 114 people have been confirmed.

We’ve been divided before, but you can be encouraged that our history demonstrates that we come together again.

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