The Supreme Court of the United States is the highest-ranking judicial body in the United States. Established by Article III of the Constitution, the detailed structure of the court was laid down by the 1st United States Congress in 1789. Congress specified the Court's original and appellate jurisdiction, created 13 judicial districts, and fixed the initial size of the Supreme Court. The number of justices on the Supreme Court changed six times before settling at the present total of nine in 1869. As of June 2022, a total of 116 justices have served on the Supreme Court since 1789. Justices have life tenure, and so they serve until they die in office, resign or retire, or are impeached and removed from office.
Justices are nominated by the President of the United States and then must be confirmed by the United States Senate, before being officially appointed. A nomination to the Court is considered to be official when the Senate receives a signed nomination letter from the president naming the nominee, which is then entered in the Senate's record. There have been 37 unsuccessful nominations to the Supreme Court of the United States. Of these, 11 nominees were rejected in Senate roll-call votes, 11 were withdrawn by the president, and 15 lapsed at the end of a session of Congress. Six of these unsuccessful nominees were subsequently nominated and confirmed to seats on the Court. Additionally, although confirmed, seven nominees declined office and one died before assuming office.
18th century
George Washington
Among the six original nominees to the Supreme Court, George Washington nominated Robert H. Harrison, who declined to serve. The seat remained empty until the confirmation of James Iredell in 1790.
Washington nominated William Paterson for the Supreme Court on February 27, 1793. The nomination was withdrawn by the President the following day. Washington had realized that since the law establishing the positions within the Supreme Court had been passed during Paterson's term as a Senator (a post he had resigned in November 1790 after being elected Governor of New Jersey) the nomination was a violation of Article I, Section 6 of the Constitution. Washington re-nominated Paterson to the Court on March 4, 1793, after the expiration of what would have been Paterson's term as Senator had he not resigned, and Paterson was confirmed by the Senate. Washington nominated Associate Justice William Cushing to replace him as Chief Justice, but Cushing declined the role. Washington then successfully appointed Oliver Ellsworth to serve as the next Chief Justice.
19th century
James Madison
When William Cushing died, James Madison nominated Levi Lincoln Sr. on January 2, 1811. Lincoln declined the nomination. Alexander Wolcott was then nominated, but was rejected by a vote of 9–24 on February 13, 1811. President Andrew Jackson instead filled the position with John McLean. Jackson nominated Taney again on December 28, 1835. After the political composition of the Senate changed the next year, Taney was confirmed as Chief Justice March 15, 1836.
John Canfield Spencer was nominated on January 9, 1844, and his nomination was defeated by a vote of 21–26 on January 31, 1844. Reuben H. Walworth was nominated on March 13, 1844, and a resolution to table the nomination passed on a 27–20 vote on June 15, 1844. The nomination was withdrawn from the Senate on June 17, 1844. Edward King was nominated on June 5, 1844. A resolution to table the nomination passed by a vote of 29–18 on June 15, 1844. No other action was taken on this nomination. Polk then nominated George W. Woodward, but the Senate rejected him by a vote of 20–29. His successor, Abraham Lincoln, filled the seat with Samuel Freeman Miller in 1862. Due to the reduction of seats, Stanbery's nomination was nullified. Chief Justice Salmon P. Chase had urged for this reduction in the hopes that it would result in an increase of the justices' salaries, which, ironically, did not happen until Congress restored the size of the court to nine members in 1871.
Ulysses S. Grant
Ulysses S. Grant nominated Ebenezer R. Hoar to a new seat on the court. The Senate rejected this nomination by a vote of 24–33. Grant successfully nominated Joseph Bradley for the seat. Grant then successfully nominated William Strong. Prior to withdrawal of consideration, the Senate Judiciary Committee declined to recommend confirmation to the entire Senate. Grant then nominated Caleb Cushing for Chief Justice on January 9, 1874, but despite Cushing's great learning and eminence at the bar, his anti-war record and the feeling of distrust experienced by many members of the U.S. Senate on account of his inconsistency, aroused such vigorous opposition that his nomination was withdrawn on January 13, 1874. Grant was successful with his third nomination of Morrison Waite. and as the nomination came near the end of Hayes's term, the Senate did not act on it. However, upon succeeding Hayes, incoming President James A. Garfield (who, like Hayes, was a Republican) renominated Matthews, and the Senate confirmed him by a vote of 24 to 23, the narrowest confirmation for a successful U.S. Supreme Court nominee in history. He served on the Court until his death in 1889.
Chester A. Arthur
In 1882, Chester A. Arthur nominated Roscoe Conkling to serve as an Associate Justice after Ward Hunt resigned. Conkling was confirmed, and then declined the position.
After Conkling declined, Arthur nominated George F. Edmunds, who twice declined to serve. Arthur then nominated Samuel Blatchford, who was confirmed and accepted.
Grover Cleveland
Associate Justice Samuel Blatchford died in 1893, during the second term of Grover Cleveland. This seat was traditionally held by a New Yorker. Cleveland's first two nominees were not confirmed by the Senate; the nomination of William Hornblower was rejected by the Senate by a vote of 24–30 on January 15, 1894. The Senators from New York were Edward Murphy Jr. and David B. Hill; Hill objected to Cleveland's nominations, and most other Senators supported Hill. Hill was a rival of Cleveland's who had lost the Democratic nomination for President to him in 1892.
Cleveland finally overcame Hill's opposition by nominating Edward Douglass White of Louisiana. White was a sitting Senator, and Senatorial courtesy dictated that the Senate not reject one of its own. White's nomination was approved; he served as an Associate Justice until 1910, and as Chief Justice until his death in 1921.
20th century
Warren Harding
President Warren G. Harding nominated Pierce Butler to the Supreme Court in 1922, but the Senate refused to consider his nomination, in part due to Butler's advocacy for railroad interests. However, Harding re-submitted the nomination later in the year, and Butler was confirmed in a 61–8 vote. Parker was nominated to replace Edward Terry Sanford. The American Federation of Labor opposed Parker for his rulings that were favorable towards yellow dog contracts and the NAACP opposed Parker due to concerns about Parker's racial views. Hoover attempted to appeal to Southern Democratic senators to vote for Parker, who was from North Carolina, but Hoover was unable to win enough Democratic votes to make up for Republican defections. Fortas's nomination was also opposed by many senators who opposed the rulings of the Warren Court, especially Miranda v. Arizona. Fortas's nomination was also injured after Johnson withdrew from the 1968 presidential election, leaving himself as a lame duck. President Nixon instead filled the vacancy caused by Warren's retirement with Warren Burger.
When Johnson nominated Fortas, he also nominated Homer Thornberry to fill Fortas' seat. Since Fortas withdrew his name from the Chief Justice nomination, but maintained his seat as an Associate Justice (with Earl Warren continuing as Chief Justice), the nomination of Thornberry was void. He was never voted on by the Senate.
Richard Nixon
After the Republicans scuttled Fortas's nomination as Supreme Court Chief Justice, Democrats retaliated by interfering with Nixon's plans to nominate a Southern conservative justice as part of the Republican Party's Southern Strategy. due to concerns about Haynsworth's civil rights record and perceived ethical lapses. Nixon's third nominee for the Fortas vacancy was Harry Blackmun, who was confirmed by the Senate with no opposition on May 17, 1970.
Nixon was soon faced with two more Supreme Court vacancies when John Harlan and Hugo Black retired in the fall of 1971. Nixon considered nominating Arkansas lawyer Hershel Friday and California intermediate appellate judge Mildred Lillie to the high court. By tradition at the time, potential Supreme Court nominees were first disclosed to the American Bar Association's standing committee on the federal judiciary. When it became apparent that this 12-member committee would find that both were unqualified, Nixon passed over Friday and Lillie, and nominated Lewis Powell and William Rehnquist. Powell was confirmed by an 89–1 vote, and Rehnquist was confirmed 68–26.
Reagan then announced his intention to nominate Douglas H. Ginsburg to the court. Before Ginsburg could be officially nominated, he withdrew himself from consideration under heavy pressure after revealing that he had smoked marijuana with his students while a professor at Harvard Law School. Reagan then nominated Anthony Kennedy, who was confirmed by a Senate vote of 97–0. Four days later, Bush nominated Samuel Alito to the seat. Alito was confirmed by a vote of 58–42 on January 31, 2006. Senate Republicans refused to hold hearings on Garland, and Garland's nomination remained before the Senate longer than any other Supreme Court nomination. Garland's nomination expired with the end of the 114th United States Congress.
The vacancy caused by Scalia's death remained unfilled for 422 days, making it just the second Supreme Court vacancy since the end of the American Civil War to remain unfilled for more than one year. On January 31, 2017, President Donald Trump, who succeeded Obama, nominated federal appeals court Judge Neil Gorsuch to replace Justice Scalia. Justice Gorsuch was sworn in on April 10, 2017, after being confirmed by a vote of 54–45.
List of unsuccessful nominations
Following is a list of the 31 unsuccessful Supreme Court nominations.
{| class="wikitable sortable"
|-
! colspan=4|Unsuccessful Supreme Court nominations