The Justices that Never Were

Brian Balogh: Which brings us to today. Justice Kennedy, the man who filled the seat Bork could not, has announced his retirement from the bench. President Trump recently announced his pick for the position.

Pres. Trump: Tonight it is my honor and privilege to announce that I will nominate Judge Brett Kavanaugh to the United States Supreme Court.

Brian Balogh: But it’s not clear that his confirmation will be smooth sailing either. After Justice Anthony Scalia died in 2016, Senate republicans refused to consider President Obama’s nominee, Merrick Garland. Trump filled that seat upon taking office this last year, and it’s now filled by Neil Gorsuch.
Given this recent turbulence, it’s not clear how Senate democrats will handle Kavanaugh’s nomination.
Joanne, Ed, just how likely is it that a nominee is going to fail? How many nominees have failed since the founding?

Ed Ayers: You know, it’s really surprising to think about these numbers. There have been 160 nominations to the Supreme Court, and of those, 36 were not confirmed by the Senate.

Brian Balogh: Wow.

Ed Ayers: Even when you count the six who were later confirmed, that still leaves two dozen who were not, so it’s not that unusual for the Senate to confirm what the President has sent forward.

Brian Balogh: Is this a recent phenomenon, or does this failure of nominees go all the way back to the founding?

Joanne Freeman: Actually, all the way back to George Washington. Washington actually put forward the nomination of John Rutledge of South Carolina, and Rutledge made a public statement, gave a public speech at around that time in which he was upset about a pending treaty with Britain, the Jay Treaty, which was sort of reconciling some issues that had been leftover from the Treaty of Paris, from the American revolution, and a lot of people thought that the treaty was too soft on Britain, and John Rutledge was one of them. And supposedly he said in this public speech that, as much as he dearly loved George Washington, he would rather see Washington in his grave than to see him actually sign onto this treaty.
So in this original nomination that gets rejected, you end up with the quirky position of people from Washington’s own party, Federalists, denying and refuting and opposing the nomination from essentially their own party. They vote against Rutledge’s nomination.

Ed Ayers: It’s remarkable that did not require a tweet or a secret recording to still have that impact. It’s just something he said out loud in front of people, and it apparently still counted?

Joanne Freeman: Shocking! Shocking!

Brian Balogh: Wow. And you know, Washington was such a popular guy. I shudder to think what happened with people like Adams.

Joanne Freeman: Oh, poor John Quincy Adams. Yeah, the Adams’s always had problems Presidents. They’re the one term-ers for good reason, actually, because they were kind of independent-minded guys, but in this case, John Quincy Adams has his very own failed nomination, but it’s not for doing anything particularly outrageous. There’s the death of a Supreme Court justice, and John Quincy Adams nominates John Crittenden, who was a Kentucky lawyer, in 1928. And as luck would have it, this happens after there has already been a presidential election, and Andrew Jackson has been made President of the United States.
So Adams, at this point, is essentially a lame duck president, and so the Senate, which at this point is dominated by Jacksonian democrats, is not really excited about the idea of Adams being able to name a Supreme Court justice, so they pass a resolution in which they declare it … And this is actually the word that they use … Inexpedient for them to consider the nomination at that particular moment.
And so the Senate basically does not consider the nomination, and even though there’s some discussion, and an attempt even to pass an amendment to that resolution that says it is the Senate’s job to consider these nominations, the amendment does not pass. The resolution does pass, and it’s not until Jackson is made president basically … It’s not that long after his inauguration that he then is allowed to appoint a new justice.

Brian Balogh: But I’m assuming a guy as popular as Andrew Jackson had no trouble getting his nominees through.

Ed Ayers: Well, as it turns out, not only did Jackson shoot people before he was president on the dueling ground, but ended up shooting himself in the feet quite often. Yeah, because he comes in, and he’s pushing very hard to really change things, and he feels that he has this huge mandate for the American people, so he decides that the Bank of the United States is a corrupt institution that’s really ruining the nation, so he’s going to do whatever it takes to get rid of it.
So Jackson was so determined to ram through this destruction of the Bank of the United States that he appointed a man that he knew would be compliant with his plans, Roger B. Taney of Maryland. For the first time in American history, Congress refused to confirm Jackson’s own nomination to his own cabinet. So Jackson thought, “Well, here’s a great idea. If that failed, let me nominate him for Associate Justice of the Supreme Court.”

Brian Balogh: Let me compound my error, since we’re talking about the bank.

Ed Ayers: Yeah, and so not only then did Jackson see Taney being rejected twice, first as a cabinet member, then as an associate justice … He says, “Hey, here’s a great idea. I’m going to put him forward at Chief Justice of the Supreme Court.” And his opponents blocked the vote on the last day of that session, and even tried to reduce the number of seats on the Supreme Court by one.
But when the Senate reconvened, Jackson saw his nomination confirmed by a very slim margin under the new democratic control. So Roger B. Taney ended up becoming a very famous Supreme Court justice, one of the most influential in American history. Taney presided over the worst decision in American history, the Dred Scott decision, which declared that no black American, free or enslaved, had any rights that white Americans were bound to acknowledge.
You have this guy who is … Barely squeaks into the Supreme Court, does so only on a partisan vote, and then presides over it for 28 years until almost the end of the Civil War, and it shows you how you can’t predict how something’s going to turn out depending on how it begins.

Brian Balogh: And to inject a very contemporary note into things, partisans today on both sides of the aisle are acutely aware of the age of the people they’re putting forth for nominations on the Supreme Court.

Ed Ayers: I think what strikes us is how anomalous it seems to have something of such enduring consequences decided by such contingent expedient or inexpedient partisan tussles. You know, it sounds like something that the whole idea of the Supreme Court is to stand above all this tawdry pushing and pulling, but it’s the pushing and pulling that creates the position in the first place.