A History of Conflict in High Court Appointments

As President Bush prepares to nominate a replacement for Supreme Court Justice Sandra Day O'Connor, Washington is bracing for the possibility of a confirmation battle. Here's a look at recent conflicts over high court nominees:

Researched by Laine Middaugh, NPR Washington Desk.

Clarence Thomas, 1991

Clarence Thomas during his 1991 confirmation hearings
Bettman/Corbis

President George H. W. Bush's first Supreme Court nominee, David Souter, was confirmed 90-9 in 1990. The following year, a second vacancy was created by the retirement of Thurgood Marshall, the first and only African-American justice on the Supreme Court. Bush clearly wanted to make sure the court did not revert to its previously all-white composition, but he also wanted to be sure he found a nominee who was both black and conservative.

He found his man on the D.C. Appeals Court, "the Little Supreme Court," where Clarence Thomas had served since the previous year. Before that, Thomas had held a series of political appointments under Bush and his predecessor, Ronald Reagan. These had included being chairman of the Equal Employment Opportunity Commission (EEOC) in the early 1980s. Thomas had made a name for himself as a staunch opponent of affirmative action and other attempts to eliminate group preferences — even those intended to correct for past discrimination. He had also criticized the high court's landmark decision in Roe v. Wade, which established a constitutional right to abortion.

Because Thomas had been on the bench little more than a year, liberal senators and interest groups thought they might successfully oppose him in a body that had so recently rejected the nomination of Robert Bork. But the political dynamic was different for Thomas, in large part because the Southern Democrats who had opposed Bork found many of their African-American constituents in favor of Thomas. The nominee also had a moving personal history: Raised in poverty in segregated Pin Point, Ga., Thomas rose to attend Yale Law School. He also had a powerful champion in Republican Sen. John Danforth. Clarence had worked for Danforth when the latter was attorney general of Missouri, and again after Danforth came to the Senate.

Learning from the failed Bork nomination, the Bush White House reacted quickly to negative attacks on the Thomas nomination from prominent organizations including the NAACP, the Urban League and the National Organization for Women. Conservative groups responded by launching extensive media campaigns to counteract any negative publicity.

Hearings before the Senate Judiciary Committee highlighted Thomas' inexperience and his hesitancy to answer questions regarding controversial issues. Despite his previous criticism of Roe, for example, he refused to say whether he would vote to overturn it. After its initial set of hearings, the committee sent the Thomas nomination to the full Senate without a recommendation.

Three days before the Senate was scheduled to vote, accusations of sexual harassment against Thomas became public. They were lodged by law professor Anita Hill of the University of Oklahoma, who had worked for Thomas at the Department of Education and at the EEOC. Hill's allegations, made in private, became national headlines after a Judiciary Committee member leaked them to the news media. The Senate voted to return the nomination to the Judiciary Committee for further investigation.

Thomas avoided responding to individual charges but issued a blanket denial of all allegations. The committee held three days of hearings that were nationally televised and attracted extraordinary attention from the public. The hearings captured exceptionally high television ratings and drew national attention not only to the Thomas nomination and the Senate's confirmation process, but also to issues of gender politics within Congress and of sexual harassment in the workplace.

Hill presented a damning indictment of Thomas' behavior. But the nominee was also effective in his defense — particularly in his angry denunciation of the proceedings as "a high-tech lynching for an uppity black who in any way deigns to think for himself." Republicans on the committee tried to undermine Hill's credibility. They also suggested Thomas' real offense was to espouse political views contrary to those Democrats wanted black people to have.

Two days after the hearings ended, with most polls showing the preponderance of public opinion favoring Thomas' version of the relationship over Hill's, the Senate voted to confirm Thomas 52-48. Two Republicans broke ranks to oppose Thomas, but 11 Democrats, most from the South, voted for him. It was the closest vote to confirm a Supreme Court nominee in more than a century.

Robert H. Bork, 1987

Robert Bork
Corbis

President Ronald Reagan had little trouble winning Senate confirmation for his first nominees to the high court. In his first term, he nominated Sandra Day O'Connor (1981); in his second, Antonin Scalia (1986) joined the court, while William H. Rehnquist was elevated to chief justice. But later that year, Republicans lost their Senate majority, foreshadowing a different fate for nominees in the remainder of Reagan's term.

The vacancy left by moderate Justice Lewis F. Powell Jr. in 1987 provided President Reagan with what The New York Times called "a historic opportunity to shape the future of the court." Reagan seized that opportunity with both hands when he chose to nominate Robert Bork, a guiding force of the conservative judicial movement of his time. Bork was then serving on the Appeals Court for the D.C. Circuit, sometimes known as "the Little Supreme Court."

In an effort to win confirmation for his nominee, Reagan tried to make a case for him as a philosophical moderate in the tradition of Justice Powell. But Bork's writings and judicial record proved otherwise, revealing strong conservative positions on controversial issues. Indeed, as a professor at Yale Law School, Bork had made a name for himself as an advocate of strict constructionism.

Bork was an outspoken and prolific writer. His judicial opinions, including attacks on decisions of the Warren and Burger eras, were well known and easily used by liberal senators and interest groups to contradict the notion of Bork as a moderate.

Bork was also plagued by charges of anti-civil rights views. Southern Democrats who had been expected to support the Bork nomination were concerned about a potential loss of black votes in the South. Although Southern senators had previously voted for strict constructionists, the elections of 1986 had brought to the Senate half a dozen new Southern Democrats whose margin of victory depended on African-American voters. Ultimately, every Southern Democrat but one voted against Bork, and the nomination (which had suffered a highly unusual defeat in the Senate Judiciary Committee) was rejected by a lopsided vote of 58-42.

Public pressure on senators reached new heights during Bork's confirmation battle, as unprecedented numbers of interest groups used new marketing techniques to develop grassroots support and opposition. Polling technology allowed independent interest groups to target media campaigns to specific regions for the first time. Opposition ads focused on Bork's civil rights record in the South and environmental record in the West, heightening senators' accountability to their constituency.

In fact, the lengths to which Bork's opponents went to defeat him helped coin a new verb in the American political vernacular. A nominee is said to have been "Borked" if his or her nomination spurs a lobbying and public relations campaign that succeeds in defeating the nomination.

Reagan then tried one of Bork's colleagues on the D.C. Circuit, Douglas Ginsberg, who withdrew his own name after stories revealed he had used marijuana in his student days. The vacancy was finally filled in 1988 when the president named Anthony Kennedy, who won Senate confirmation with little controversy.

G. Harrold Carswell, 1970

G. Harrold Carswell
Bettmann/Corbis

In 1969, the Senate defeated President Richard Nixon's nomination of Judge Clement Haynsworth to fill the Supreme Court vacancy left by Justice Abe Fortas (see below). Still angry about the Haynsworth defeat, in 1970 Nixon nominated Judge G. Harrold Carswell, a Southern conservative with "strict-constructionist" leanings, to fill the Fortas vacancy. Carswell had recently been appointed to the Court of Appeals for the 5th Circuit, which served the Deep South. His nomination was a surprise to many: Carswell had been a judge for just a short time and was seen as lacking distinction. Prominent legal scholars publicly criticized the nomination.

Some senators tried to sell Carswell's rather unremarkable career as an asset. In a famous speech in Carswell's defense, Republican Sen. Roman Hruska of Nebraska argued: "Even if he is mediocre, there are a lot of mediocre judges and people and lawyers, and they are entitled to a little representation, aren't they? We can't have all Brandeises and Cardozos and Frankfurters and stuff like that."

Civil rights leaders joined the opposition to Carswell's nomination, after reporters discovered statements he had made as a young candidate for the Georgia legislature in 1948: "I yield to no man as a fellow candidate or as a fellow citizen in the firm, vigorous belief in the principles of White Supremacy, and I shall always be so governed." Carswell had also helped convert a public golf course in Florida into a private club to keep it segregated. The Senate rejected him 51-45.

Nixon's first Supreme Court nominee, Chief Justice Warren Burger, easily won confirmation in 1969. But Burger was from Minnesota, and Nixon still wanted to install a Southerner on the court to salute the region that contributed so much to his 1968 election win. So as Carswell neared defeat, Nixon angrily wrote to a Republican senator that the Senate was usurping his powers as president. The Senate majority leader, Mike Mansfield of Montana, responded that the "advise and consent" clause in the Constitution meant that the Senate shared the president's powers when it came to filling Supreme Court vacancies.

Clement Haynsworth Jr. , 1969

Clement F. Haynsworth  Jr.
Bettman/Corbis

In 1969, President Nixon nominated 4th Circuit Chief Judge Clement Haynsworth to the Supreme Court vacancy created the previous year by the resignation under pressure of Associate Justice Abe Fortas. At first Haynsworth, like Fortas, seemed poised for confirmation. But his nomination was dogged by financial conflict-of-interest charges that ultimately motivated several Senate Republicans to vote with the Democrats who made up most of the opposition.

Haynsworth owned about one-seventh of a vending machine company when he ruled in favor of a textile firm that did business with the company. Although Haynsworth was reportedly unaware of the relationship, the appearance of impropriety was sufficient for some to reject his nomination. The recent filibuster of the Fortas nomination also moved some senators to cross party lines to vote against Haynsworth for the sake of consistency. Concerned by any show of ethical impropriety, 17 Republican senators — including most of the GOP leadership — eventually joined the majority of Democrats in opposing Haynsworth's nomination.

Civil rights leaders and labor organizations opposed Haynsworth, a conservative from South Carolina. Civil rights groups objected to decisions he had made on the court of appeals in the 1950s and early '60s. The AFL-CIO argued that the Supreme Court's reversal of seven labor-related Haynsworth decisions demonstrated the nominee's anti-labor positions. While interest-group opposition was certainly damaging, the nomination ultimately failed because of the Senate's sensitivity to any appearance of conflict-of-interest improprieties after the Fortas defeat. Despite the Senate Judiciary Committee's recommendation for confirmation, the Senate rejected Haynsworth 55-45.

Abe Fortas' Nomination for Chief Justice, 1968

Abe Fortas, shown in 1964
Corbis

In 1965, Abe Fortas joined the Supreme Court as an associate justice on the Warren Court, participating in landmark decisions that expanded individual rights in criminal procedure, privacy and juvenile rights cases. When Chief Justice Earl Warren announced his retirement in 1968, President Lyndon Johnson nominated Fortas to fill the vacancy.

Although Fortas won approval from the Senate Judiciary Committee, Republican senators proved unwilling to confirm the nomination. President Johnson, who was in his final year of the presidency, had failed to consider the reaction of junior Republican senators and conservative Southern Democrats to the nomination of a known liberal for the court's top job.

Republicans were eager to prove their political might in order to boost their party's chances of winning the upcoming presidential election. They also took offense at Johnson's expectation of a "rubber stamp" confirmation. By tapping the pro-civil rights Fortas for chief justice, Johnson had also irritated Southern Democrats, some of whom joined the Republican opposition.

Senate opponents also disapproved of Fortas' close relationship with President Johnson, for whom he had long served as an adviser. Although this type of association was not uncommon during past presidencies, opposition leaders argued that Johnson's consultations with Fortas represented a threat to the independence of the judiciary.

In attempting to elevate Fortas to chief justice, President Johnson overestimated his political strength. Weakened by the Vietnam War, Johnson had decided not to seek a second elected term and had only months remaining in office. That lessened his bargaining power and his hold on Democratic senators. The presidential campaign also meant the nomination was political fodder for Republican candidate Richard Nixon, who claimed the Warren court had gone "too far in weakening the [law enforcement] forces as against the criminal forces."

Three months of partisan debate culminated in a filibuster blocking Fortas' nomination. Fortas asked that his name be removed from consideration after his supporters were defeated in a cloture motion to end debate.

Fortas' nomination as chief justice was filibustered largely for political reasons. But a year later, a scandal led to Fortas' resignation as an associate justice. The scandal began when Life magazine exposed a financial contract involving Fortas and financier Louis E. Wolfson, who was under investigation by the Securities and Exchange Commission at the time.

Fortas was to receive an annual sum from Wolfson's foundation for "consulting" that totaled more than half his yearly salary from the Supreme Court. The fee was to be paid to Fortas' wife in the event of the justice's death. Fortas ended his relationship with the foundation within six months and returned the initial fee, but the original contract was perceived as a payoff nonetheless. Although Fortas had not broken any law, his personal judgment and the integrity of the court had been called into question. In 1969, Fortas resigned under pressure from the newly elected Nixon administration.

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