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U.S. Senate - Nominations in the 20th Century

The twentieth century brought a significant shift in the balance of power between Congress and the presidency. As the nation moved to world-power status, the chief executive assumed greater authority. This shift became apparent in the smaller number of appointments contested in the Senate, particularly when its majorities were of the same party as the president. From 1897 to 1955, the presidency and the Senate were in the hands of the same party for all but four years (1919-1921 and 1947-1949). During the century's first nine decades, the Senate would reject only three cabinet nominees and five Supreme Court justices. Of these eight rejections, five occurred during periods of divided party control.

Supreme Court

President Theodore Roosevelt asserted presidential leadership in his appointments by selecting Supreme Court justices according to his view of their character, competence, and philosophical compatibility. His successor, William Howard Taft, expected an "avalanche of abuse" from fellow Republicans when he named as chief justice Edward Douglas White--a Democrat, a Catholic, and a Confederate army veteran. The Senate surprised Taft by confirming White quickly and unanimously, signifying how times had changed. Taft's subsequent nomination of Charles Evans Hughes also brought nearly universal praise despite the Republican governor's highly partisan role in the recent presidential campaign.

When Woodrow Wilson entered office in 1913, returning the Democratic party to power for the first time in sixteen years, a large number of appointment choices awaited him. He occasionally ran afoul of senators of both parties who expected their wishes to be considered seriously for positions within their states, and he suffered minor rejections for choosing individuals whose business interests seemed too closely tied to the position to which they were nominated.

Like Roosevelt and Taft, Wilson sought men he believed would implement his political ideology. Early in 1916 Wilson named Louis D. Brandeis, the progressive "People's Lawyer" from Boston, to the Supreme Court. The Brandeis nomination ended the quiescent period by sparking a confirmation fight considered "the most bitter and most intensely fought in the history of the Court." Brandeis deeply antagonized the nation's conservative legal establishment with his advocacy of "sociological jurisprudence." Brandeis had become famous in legal circles for the so-called "Brandeis Brief," which downplayed constitutional issues and precedents and focused instead on such social and economic issues as the health and welfare of workers. The American Bar Association, for the first time, attempted to kill the nomination, charging that Brandeis was unfit. Buried amidst charges that he lacked "judicial temperament" was a deep vein of anti-Semitism. Despite the Senate Judiciary Committee's slim two-vote margin in his favor, Brandeis secured confirmation by a comfortable 47-to-22 margin and became one of the Court's greatest justices.

Fourth Circuit Chief Judge John J. Parker, a prominent and distinguished North Carolina Republican, was the first Supreme Court nominee in the twentieth century to be rejected. The battle focused on the nominee's judicial record, rather than his personal competence. Powerful opposition from the American Federation of Labor and the National Association for the Advancement of Colored People, portraying him as unfriendly to labor and minorities, caused his defeat by a two-vote margin on May 7, 1930.

In 1925, the Senate for the first time summoned a Supreme Court nominee to testify before its Judiciary Committee. Harlan Fiske Stone's appearance was brief, but the senatorial questioning was vigorous. The next five nominees escaped this personal interrogation, but in 1939 the committee requested Felix Frankfurter to appear. Although he eventually complied, Frankfurter complained that his views were a matter of public record. Since the 1955 nomination of John Marshall Harlan, all Supreme Court appointees have appeared before the Judiciary Committee.

Of the twenty-four Supreme Court nominations between John Parker's rejection in 1930 and that of Abe Fortas in 1968, seventeen were confirmed unanimously, while only six stimulated significant Senate opposition. This pattern changed with President Lyndon Johnson's June 1968 nomination of Associate Justice Fortas to be chief justice. His rejection reflected the difficulty of gaining confirmation in the final year of a presidential administration and the special challenge that confronts associate justices, with their highly visible judicial records, when named to be chief justice

The Senate's refusal to confirm Fortas was also attributable to two tactical errors of the Johnson administration. The president had antagonized Senator Richard Russell (D-GA), the most influential senator of the day, by delaying action on a Russell protege for a federal judgeship. Moreover, the president, a former Senate majority leader, failed to calculate Senate irritation at being considered a "rubber stamp" for the president's wishes. Assuming that Fortas would be easily confirmed, Johnson at the same time also named a political crony of modest ability to fill the expected associate justice vacancy. Although the Judiciary Committee recommended favorable action, Republican senators, with a view to their party's brightening chances to capture the presidency in the approaching election, launched a filibuster to stall action. They expressed disapproval both of Associate Justice Fortas' tangled financial dealings and his activities as a de facto presidential adviser, despite similar relationships in presidencies from Wilson's through Truman's. When his supporters were unable to end the marathon debate, Fortas asked Johnson to withdraw his nomination. He continued as an associate justice until the early months of the Nixon administration when deepening evidence of financial misconduct forced his resignation.

President Richard Nixon nominated appeals court judge Clement F. Haynsworth, Jr. to the vacancy. The conservative South Carolinian, who was recognized by those who knew him as distinguished and able, quickly ran into conflict-of-interest charges similar to those directed at Fortas. He also encountered the hostility of labor and civil rights organizations for alleged insensitivity to their interests. Ultimately the Senate rejected his nomination on a 45-to-55 vote because Republicans, who had recently opposed Democratic nominee Fortas on ethical and moral grounds, believed consistency dictated a similar stance against Haynsworth. Deeply angered, Nixon responded spitefully by nominating appeals court judge G. Harrold Carswell, an undistinguished Florida jurist considered far less qualified than Haynsworth. The Senate seemed initially disposed to confirm Carswell, but evidence of his racial biases and mediocre intellect shifted sentiment against him. Seeking to save the nomination, floor manager Roman Hruska (R-NE) delivered an assessment that proved to be fatal. "Even if he is mediocre there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren't they, and a little chance? We can't have all Brandeises, Cardozos, and Frankfurters, and stuff like that there." After four months, the Senate rejected Carswell, triggering a statement from Nixon that he considered the Senate's confirmation responsibilities under the Constitution only pro forma. Abandoning his efforts to place a strict constructionist southerner on the high court, he turned to appeals court judge Harry Blackmun, a Minnesotan whom the Senate quickly approved.

Reagan administration experience with Supreme Court nominees in its first six years reenforced the view that Court nominees stand the best chance of approval when the Senate and presidency are in the hands of the same party, and when appointments are made prior to the final year of a presidential term. The Senate unanimously confirmed the appointments of Sandra Day O'Connor in 1981 and Antonin Scalia in 1986. In the three-month-long confirmation proceedings of 1986 that led to the elevation of Associate Justice William Rehnquist to chief justice by a 65-to-33 vote, the Senate demonstrated the greater difficulty that faces sitting justices whose established records invite senatorial scrutiny.

In 1987, when control of the Senate returned to the Democrats and, with less than two years remaining to the increasingly beleaguered Reagan administration, the Senate took special interest in the nomination of federal appeals court judge Robert Bork. A richly qualified, highly intelligent and outspoken jurist, Bork responded to his critics in a manner that sparked one of the most acrimonious confirmation battles in Senate history. Bork's doctrinaire judicial views undermined his initial support. Intense media coverage, including strident advertising campaigns by supporters and opponents, created strongly negative impressions among senators and the general public. The Judiciary Committee reported Bork's nomination adversely to the Senate, which rejected him by a 42-to-58 vote. Bork subsequently contended that the aggressive questioning about basic constitutional issues to which he was subjected would limit future selection of judges to those who had written little, and whose views were non-controversial.

President George Bush's successful 1990 appointment of Judge David H. Souter, a virtually unknown federal jurist, seemed to corroborate Bork's view. Bush continued in this pattern in 1991, nominating Judge Clarence Thomas, a conservative African American of little judicial distinction, to fill the seat of Thurgood Marshall, the Court's first black member. The administration, wary of the perils of divided political control despite its belief that Senate Democrats would have trouble opposing an African American, carefully coached the nominee to avoid extended discussions of his judicial philosophy and delayed hearings until it believed Thomas had gained sufficient support. As an evenly divided Judiciary Committee sent the nomination to the Senate floor without a recommendation, a committee source leaked to the news media information that a former associate had charged that Thomas had sexually harassed her ten years earlier. The Senate, minutes from its scheduled vote and under pressure from a swelling national outcry, returned the nomination to the committee for further investigation. Demonstrating the immense power of the news media to shape the modern confirmation process, the committee's three-day proceeding became a weekend television spectacle as a transfixed nation divided its sympathies between the nominee and his accuser. Although Thomas was eventually confirmed by the closest margin in a century, the proceedings with their unremitting public inquiry into the nominee's personal life, triggered a vigorous debate on the Senate's conduct of the confirmation process.

Executive Branch Rejections

During the twentieth century, the Senate generally adhered to its tradition of confirming cabinet and other key executive nominees on the principle that presidents should be allowed a free hand in choosing their closest advisers. On only three occasions (1925, 1959, and 1989) did the Senate reject proposed cabinet officers, while other major executive nominees were specifically rejected fewer than thirty times.

In 1947, President Harry Truman recognized the difficulty of getting nominations approved by a Senate controlled by the opposition party. When the Senate passed to Republican hands that year, bringing divided government for the only time in the century since 1919-1921, Truman sought to avoid controversy by selecting individuals he thought would be readily acceptable to the Senate. As a result the Senate did not reject any of his appointees, but in 1948 it failed to act on 11,122 nominations in the misplaced hope that a Republican would be elected president that year and would fill the positions with Republicans in 1949.

On October 14, 1949, the Senate, back under Democratic control, voted 15 to 53 to reject Truman's nomination of Leland Olds to a third term on the Federal Power Commission. Olds, a ten-year veteran of the commission and an outspoken advocate of strict federal regulation for privately owned utilities, had become the target of powerful oil and gas interests. Freshman Senator Lyndon B. Johnson (D-TX), seeking to ingratiate himself with those interests and to shed his New Deal reform image, led the attack on the liberal Olds. Johnson eagerly gained the chairmanship of the hostile Commerce subcommittee that conducted the confirmation hearings. The subsequent proceedings demonstrated the difficulty of reconfirming a controversial public figure with powerful enemies eager to settle old grievances. At a time of intensifying national paranoia about communism, Johnson abandoned any pretense of fairness and allowed witnesses to pillory Olds for communistic sympathies on the basis of articles he had written more than two decades earlier. Following the subcommittee's unanimous vote of rejection, Truman sought to make this contest a matter of party loyalty. Democratic senators angrily opposed the president's interference in the confirmation process and provided the votes to bring about this rare rejection of an incumbent official.

On June 19, 1959, by a dramatic 46-to-49 roll-call vote, the Senate rejected President Dwight Eisenhower's nomination of Admiral Lewis Strauss to be secretary of commerce. Strauss was a seasoned administrator who expected quick approval to this essentially noncontroversial post. Like Leland Olds, however, he had accumulated powerful enemies as the outspoken head of a regulatory commission. Consequently, Eisenhower was unwilling to risk a defeat by renominating him to that agency. Several factors also evident in hotly contested Supreme Court nominations existed in the Strauss case. It occurred in the seventh year of a Republican presidency with Democrats in control of both houses of Congress. The 1958 elections, reflecting public dissatisfaction with Eisenhower administration policies, shifted thirteen Senate seats -- a record number -- from Republican to Democratic control. This gave the Democrats a 64-to-34 majority as party leaders laid their plans to regain the White House in the upcoming 1960 presidential election. In a gesture of defiance reminiscent of its performance on the Olds nomination, the Senate Commerce Committee delayed considering the nomination for two months. When the hearing began, the nominee immediately fueled the committee's antagonism by his evasive responses to members' questions and his demand to cross-examine hostile witnesses, including senators. Strauss' repeated expressions of disdain and condescension antagonized key senators and fatally eroded his support. Appearing to question the Senate's constitutional prerogatives, the imperious Strauss personified the worst elements of executive-branch domination at precisely the time that the Senate sought to cast off such control and had acquired the Democratic majorities to do so.

Three decades passed before another cabinet nominee suffered an identical fate. John Tower (R-TX) had served twenty-four years in the Senate when he retired in 1985. During those years his Senate colleagues came to resent his abrasive manner. But when President George Bush nominated Tower as secretary of defense in January 1989, few guessed that defeat lay ahead. During an investigation by the Senate Armed Services Committee, which Tower had chaired less than five years earlier, his opponents among the Senate's Democratic majority built a case against his character rather than his competence. Confronted with evidence of Tower's "womanizing," abuse of alcohol, and questionable financial dealings with defense contractors, the Senate engaged in one of the most rancorous debates in modern times before killing his nomination by a largely party-line vote of 47 to 53. Not only did Tower become the first nominee of a new president's initial cabinet ever to be rejected, but also the first former member to be turned down by his former colleagues for a cabinet post. Tower subsequently died in a plane crash while promoting his book, Consequences: A Personal and Political Memoir, attacking the Senate's role in his defeat.

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