The judges who sit on the Supreme Court of the United States have a unique power of government, which makes their selection extremely difficult. Senators may oppose a candidate because of his or her record or even because of disagreements that Senators have with the president who made the appointment. This tension has been present since the beginning of the Court.
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A controversial candidate for George Washington
As the first president, George Washington successfully appointed 10 justices to the Supreme Court. The only time the Senate rejected an appointment to the Supreme Court in Washington was when it tried to make former Associate Justice John Rutledge chief justice in 1795.
Although the Senate is controlled by the Federalists, the party with which Washington was unofficially aligned, he rejected Rutledge for a speech he gave against Jay’s treaty, which the Senate had recently approved.
While it doesn’t sound very dramatic today, at the time Rutledge’s speech was seen as such a misstep that some actually questioned his mental stability. It was the first truly controversial attempt to appoint a judge to the Supreme Court.
John Tyler’s attempts to fill the court fail
President John Tyler
National Archives
The first president to have had any real difficulty filling vacancies on the Supreme Court was John Tyler, who was so unpopular that his party kicked him out while still in the White House.
Critics dubbed Tyler “His Accident” because he was the first vice president to take over the post after a president died. Tyler had been William Henry Harrison’s running mate on the 1840 Whig Festival ticket; and when Harrison died after just 31 days in office, the Whigs weren’t happy to be stuck with Tyler. Within a year, all but one of Tyler’s cabinet resigned and the Whigs kicked him out of the party.
When filling the vacancy on the Supreme Court, the Whig-controlled Senate only confirmed one of the five men named by Tyler. The Senate rejected, voted to postpone or simply ignored his other appointments, marking the first time the Senate has so vigorously opposed such a large chunk of a president’s selections to the Supreme Court.
Ulysses S. Grant’s Dred Scott Supporter
Caleb Cushing (1800-1879), Congressman from Massachusetts and Attorney General of the United States. He was appointed to the Supreme Court but has not been confirmed.
Corbis / Getty Images
Ulysses S. Grant has done much better than Tyler in filling vacancies on the Supreme Court. It was during the reconstruction, when black men exercised their right to vote and won seats in Congress for the first time. During Grant’s two terms of 1869 to 1877, the Republican-controlled Senate confirmed five of the eight candidates for the Republican president.
READ MORE: First black man elected to Congress was nearly barred from taking his seat
One of the scholarship candidates that the Senate did not confirm was Caleb Cushing, 73, a former attorney general who criticized abolitionists and wrote a letter of introduction to Jefferson Davis while he was president of the Confederation. Cushing had also supported the Dred Scott Supreme Court ruling of 1857 that black Americans were not American citizens – a ruling that Congress had since struck down with the Civil Rights Act of 1866 and the 14th Amendment.
The Senate strongly opposed Grant’s 1874 appointment of Cushing as chief justice, which led Cushing to ask Grant to remove his name from consideration before the Senate could even vote on him. .
Grover Cleveland names former Confederate
Lucius Quintus Cincinnatus Lamar from Mississippi.
Library of Congress
After the reconstruction ended in 1877, white southerners regained political power by preventing black men from voting, and in the process ousted black Republicans who had won seats in Congress during the reconstruction. In December 1887, when Democratic President Grover Cleveland appointed Democrat Lucius Quintus Cincinnatus Lamar – the first former Confederate appointed to the Supreme Court – Republicans held a narrow majority in the Senate.
Lamar was a former member of the House of Representatives who resigned in 1860 to help Mississippi secede, then became a colonel in the Confederate Army. He returned to Congress between 1873 and 1885, first resuming his former seat in the House, then joining the Senate. Even though his seditious actions and ties to railroad companies made Lamar, 62, an unpopular choice for the Supreme Court, the Senate upheld his former member by 32-28 (16 senators did not vote ). Lamar served at court until his death in 1893.
Richard Nixon’s two segregationists
Justice Clement F. Haynsworth, Jr. (center) appeared before the Senate Judiciary Committee on September 16, 1969 for his appointment as Associate Justice of the Supreme Court.
Bettmann Archives / Getty Images
Almost a century after a former Confederate took the bench, Republican nominee Richard Nixon ran for president using a “Southern strategy” to woo white Southern Democrats who were upset over the support of Lyndon B. Johnson to Civil Rights Law. After winning the presidency in 1968, Nixon appointed two men to the Supreme Court who each had a history of supporting apartheid.
READ MORE: How the ‘Lincoln Party’ won the once democratic South
The first, Clement Haynsworth Jr., had supported a decision in Prince Edward County, Virginia – the county in which one of the five class actions was incorporated in Brown vs. School Board was filed – to close schools rather than integrate them. Civil and labor rights activists criticized his record and pointed out that he had a financial conflict of interest in one of the cases he decided. This was particularly troubling for the Democratic-controlled Senate as, if confirmed, Haynsworth would replace Abe Fortas, who himself had resigned from the Supreme Court due to financial conflicts of interest.
The Senate rejected Haynsworth in 1969, and the following year Nixon appointed G. Harrold Carswell to replace Fortas. Some critics have claimed that Carswell’s career was mediocre, leading a Republican senator to mount this defense: “Even though he’s mediocre, there are a lot of mediocre judges, people and lawyers, and they deserve a little representation, is it? “
Far more damning than this “endorsement” was a statement Carswell made when running for the Georgia legislature in 1948: “I yield to no man as a candidate or fellow of the firm and vigorous belief in the principles. of white supremacy, and I will always be so governed. Civil rights groups highlighted this statement and his support for segregation, and the Senate dismissed him as a Supreme Court judge.
