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5 Cardozo L. Rev. 1 (1983 - 1984)
The Transformation in Senate Response to Supreme Court Nominations: From Reconstruction to the Taft Administration and Beyond

handle is hein.journals/cdozo5 and id is 11 raw text is: THE TRANSFORMATION IN SENATE RESPONSE
TO SUPREME COURT NOMINATIONS: FROM
RECONSTRUCTION TO THE TAFT
ADMINISTRATION AND BEYOND
Richard D. Friedman*
INTRODUCTION
Since 1894, only four presidential nominations to the Supreme
Court-three of them        in the years 1968 to 1970-have failed to win
the advice and consent of the Senate.' Notwithstanding occasional
outbursts of controversy, the confirmation process has, for the most
part, become routine. It was not always so. From the founding of the
Court through 1894, twenty-one nominees failed to win confirma-
tion.2
* Assistant Professor of Law, Benjamin N. Cardozo School of Law, Yeshiva University;
B.A., 1973, J.D., 1976, Harvard University; D. Phil., 1978, Oxford University. I thank Stephen
W. Botein for invaluable guidance and encouragement in my work on this subject and Richard
Polishuk and Michael Berman for their assistance in the final preparation of this Article.
In 1930, the Senate, by a 41-39 vote, rejected President Hoover's nomination of John J.
Parker. 72 Cong. Rec. 8487 (1930). In 1968, President Johnson withdrew the nomination of Abe
Fortas for Chief Justice after the Senate declined to invoke cloture to limit debate. 114 Cong.
Rec. 28,933 (1968)(45-43 vote for cloture); id. at 29,577 (withdrawal). In 1969 and 1970, the
Senate rejected outright President Nixon's nominations of Clement F. Haynsworth, Jr., 115
Cong. Rec. 35,396 (1969)(45-55 vote), and G. Harrold Carswell, 116 Cong. Rec. 10,769
(1970)(45-51 vote), respectively. Not counted among these rejections is the 1968 nomination of
Homer Thornberry. See infra note 2.
The powers of the president and the Senate with respect to judicial appointments are
established by article II of the Constitution, which provides that the president
shall nominate, and by and with the Advice and Consent of the Serrate, shall appoint
Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and
all other Officers of the United States, whose Appointments are not herein otherwise
provided for.
U.S. Const. art. II, § 2, el. 2. A dated, but still useful, survey of the confirmation process, not
limited to Supreme Court nominations, is J. Harris, The Advice and Consent of the Senate
(1953). Three general surveys of Supreme Court nominations are H. Abraham, Justices and
Presidents: A Political History of Appointments to the Supreme Court (1974), Frank, The
Appointment of Supreme Court Justices: Prestige, Principles and Politics, 1941 Wis. L. Rev. 172,
343, 461 (three-part article), and D. McHargue, Appointments to the Supreme Court of the
United States: The Factors that have Affected Appointments, 1789-1932 (1949)(unpublished
thesis, University of California at Los Angeles). A brief and rather simplistic review is Abraham
& Goldberg, A Note on the Appointment of Justices of the Supreme Court of the United States,
46 A.B.A. J. 147 (1960). Chapter 4 of A. Blaustein & R. Mersky, The First One Hundred Justices
(1978), is a survey of the rejected nominations. For a. comprehensive survey of the backgrounds
and qualifications of Supreme Court justices through 1937, see C. Ewing, The Judges of the
Supreme Court, 1789-1937 (1938).
2 All nominations to the Supreme Court through that of Justice Stevens ar  listed in L.
Baum, The Supreme Court 227-31 (1981), and all those through Justice O'Connor are in The

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