10 Controversial Supreme Court Appointments

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Despite a long record as the most favorably viewed branch of government, America’s judiciary has an equally long history of dynamic controversy. While presidents and members of Congress do their best to hog the spotlight—and the headlines of tabloids—the highest court in the country has still managed to capture the public’s attention, inspire indignation, and host the sort of drama that might just compel the uninitiated to agree with Jack Nicholson’s most memorable pronouncement under oath.

The lifetime appointments of Supreme Court justices mean that chaos and speculation abound every time a sitting justice retires or passes away…which, you may have noticed, is suddenly extremely relevant with the passing of Antonin Scalia. Controversy is bound to be tied to whoever takes his place, but as these 10 examples show, it certainly won’t be the first time.

10. William Brennan, Jr.

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With the benefit of hindsight, Justice Brennan is fondly remembered by historians and legal scholars alike as one of the most respected, influential, and determinedly liberal justices ever to serve—not mention his 34-year tenure is one of the longest on record.

That bit about being “liberal” is more than a footnote, though: the Democratic Justice Brennan was appointed to the Supreme Court by President Dwight Eisenhower, a Republican. This was either especially shrewd or especially risky on Eisenhower’s part, as he made the appointment in the midst of election season, while Congress was in recess—something that has since become something of a rarity, to put it mildly.

Fans of President Kennedy might also be fascinated to learn that, just like Jack, Brennan’s nomination faced intense scrutiny from critics who feared his Irish Catholic background, rather than knowledge of the Constitution, would inform his judgments.

Even Brennan was reportedly taken by surprise at his being picked, considering the stakes involved. Eisenhower managed to secure a second term as President, and Brennan went on to be confirmed by the Senate soon after, going on to serve through the next seven presidencies and 22 congresses, before retiring for his health in 1990.

9. Ruth Bader Ginsberg

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The second female justice ever appointed, Ginsberg’s nomination stirred up controversy that never fully subsided. Her extensive background as a social justice and women’s rights activist made her hugely popular among progressive leaders, yet her record as a relative moderate in the courtroom made her attractive to conservatives, who actually recommended her to President Clinton in 1993.

But when it came time for the Senate Judiciary Committee to question Ginsberg, she wasn’t exactly forthcoming. Ginsberg alternated between vague, non-committal responses, outright rejections of the questions, and the occasional reference to historical precedent and language of the Constitution.

She insisted that it would be “injudicious” of her to answer questions that were hypothetical, or that reflected either current or likely future Supreme Court cases; at other times, she more or less shrugged issues off as being outside her area of expertise, referring the questioning committee members to their own Senatorial counselors for more information.

She basically denied the Senate exactly what they expect from a judicial confirmation hearing: some clue as to how a potential Justice might rule on the biggest issues of the day. Ginsberg insisted that she would not violate “my rule about no hints, no forecasts, no previews.”

Ginsberg still managed to score 96 votes of approval from the Senate, and lent her name to the Ginsberg Precedent, invoked frequently by subsequent nominees and Presidents in reference to the bipartisan support she received, and her refusal to comment on any decision she might make as a justice.

8. Louis Brandeis

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Back in the hazy days of the First World War, anti-Semitism was all the rage in the United States. Just like American music and movies, it managed to catch on overseas in a big way in coming years, but its domestic high point probably coincided with the lynching of the Jewish Leo Frank in August, 1915.

Given that context, it might be surprising to know that less than a year later, Louis Brandeis was nominated by President Woodrow Wilson to become America’s first Jewish Supreme Court Justice. This nomination drew the immediate and vocal outrage of six former presidents of the American Bar Association, as well as former U.S. President William Taft, who described it as “evil and a disgrace”—which probably didn’t make it awkward at all when Taft ended up joining Brandeis on the bench in 1921, then serving alongside him for the next nine years.

The Senate, which had previously never held a public hearing to confirm a judicial nominee, opted not to simply confirm his nomination, instead dragging the approval process out over four months before finally voting 47-22 in favor of Brandeis.

Aside from showing up his anti-Semitic detractors, his legacy included establishing the precedent of using actual scientific facts, research, and expert testimony to inform court opinions—what is known today as a “Brandeis brief”.

7. Abe Fortas

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As the philosopher Gump might put it, President Lyndon Johnson and attorney Abraham “Abe” Fortas were like peas and carrots. So tight were these two, that Johnson convinced 56-year old Justice Arthur Goldberg to resign his appointment to the Supreme Court, so that Fortas could replace him in 1964.

Fortas and Johnson, Justice and President, had an uncommonly close working and personal relationship, such that after just four years on the bench, following the retirement of Chief Justice Earl Warren, Johnson nominated Fortas to replace him.

The Republicans in the Senate were not so keen on this idea, and made the unprecedented move of filibustering his confirmation hearings. President Johnson couldn’t get the supermajority needed to break the filibuster, and eventually withdrew the nomination—though Fortas remained an Associate Justice…

…that is, until the next year, 1969, when Fortas foreshadowed Nixon’s presidency, resigning under threat of impeachment while insisting he had done nothing wrong.

Taken together, that makes Fortas both the first Chief Justice nominee to face questioning by the Senate, the first nominee to get his appointment hearing filibustered, and the first justice to face threat of impeachment and resign.

6. Stanley Matthews

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Matthews was nominated to the Supreme Court by President Rutherford B. Hayes, but had some trouble making it through his confirmation hearings.

That trouble might have been related to the fact that Matthews was a longtime anti-slavery advocate, adjudicating on such issues as a judge in his home state of Ohio before volunteering for the Union Army during America’s Civil War. This background, compounded by the fact that fellow Ohioan Hayes had famously pledged not to run for reelection and was on his way out of office, left the Senate distinctly unmotivated to approve Matthews’ nomination.

When yet another Ohio bro, James Garfield, won election and replaced Hayes as President, he doubled-down on Matthews, sending him back before the Senate Judiciary Committee, which eventually voted him to the bench—by a single vote.

Despite being an outspoken abolitionist, Matthews had prosecuted a newspaper editor in 1859 who had assisted two runaway slaves in their escape. Because this apparent sacrifice of moral principle, Matthews only managed to scrape 24 votes, with 23 against, making him the most narrowly appointed Justice in Supreme Court history.

5. Roger Taney and Philip Pendleton

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This one is a two-fer, because of the peculiar dance they had to perform to get on the bench.

In January of 1835, Justice Gabriel Duvall resigned due to old age; Andrew Jackson, coming up on the end of his second term, nominated his friend and ally Roger Taney (pictured above) to replace Duvall. Taney and Jackson were buddies not just because Taney had supported Jackson’s presidential bid, but because they had worked together to dismantle the Second Bank of the United States.

This track record didn’t sit well with the Senate (which had previously censured Jackson for abuse of power), so they opted to reject Taney’s nomination by a vote of 28-18. That made Taney officially the first would-be Justice to get rejected by the Senate.

But just a few months later, Chief Justice John Marshall died. With two vacant seats to fill, and only months left in the White House, Jackson nominated another old ally, Philip Pendleton, to replace the retired Duvall. Then, in a classic example of The Old Switcheroo, Jackson re-nominated Taney, now to replace Chief Justice Marshall.

This time around, Taney—along with Pendleton—was approved, in part because there had been an election and the membership of the Senate had changed sufficiently in Jackson’s favor.

4. John Rutledge

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In 1789, Under the first President, George Washington, John Rutledge was nominated to serve on the young country’s first Supreme Court. In 1791, without even having heard a single case, Rutledge decided he had had enough of that gig, and resigned in order to become the Chief Justice of the South Carolina Supreme—a move that modern observers might consider a downward career transition.

The following year, Rutledge lost his wife, setting off a bout of apparent mental illness that would persist for the rest of his life. That didn’t stop Washington from nominating him to the Supreme Court again three years later, this time in the role of Chief Justice. As the Senate was out of session, Rutledge was a recess appointment and took up the post automatically.

He immediately took advantage of his position to deliver an impassioned speech denouncing the Jay Treaty (named for the previous Chief Justice) with Great Britain. Highlights include Rutledge suggesting the President should die, rather than sign the treaty, and that he would prefer going to war (again) over peace with Great Britain. Within five days of the Senate coming back into session, Rutledge’s appointment was rejected, on the basis that he was a crazy alcoholic who had no business in the country’s highest court.

This left him with the curious distinction of having the fastest Senate rejection of a nominee to the Supreme Court (and the only recess appointment to be outright rejected), yet still serving as both Associate and Chief Justice.

3. Clarence Thomas

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In 1991, George H.W. Bush nominated Clarence Thomas to replace outgoing Justice Thurgood Marshal, the first African American on the Supreme Court.

Thomas was already a controversial choice, because his decidedly conservative background led many to fear that he would reverse the nation’s progress on Civil Rights issues, particularly affirmative action and women’s access to abortions.

Things took a sharp turn after his nomination moved out of the Senate Judicial Committee, when Anita Hill, his old coworker (from the Equal Employment Opportunities Commission, no less) came forward with accusations of sexual harassment. Hill claimed that she had rejected romantic advances made by Thomas, who proceeded to chat with her about porno films, discuss her womanly body, his impressive endowment, and perform recitations detailing his favorite sexual maneuvers.

Thomas and Hill’s public battle over truth and ethics created a frenzy, and the Senate spent 99 days trying to get to the bottom of things. Ultimately, Senators determined that not enough evidence was presented to prove Hill’s accusations, and Thomas was narrowly appointed to the bench by a vote of 52-48.

Meanwhile, Hill’s public profile became a catalyst for continuing discussions of sexual politics, women’s experiences in the workplace, and the narratives of sexual crimes against women that has finally been made into a feature film.

2. Any of Nixon’s Nominees

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As President, Nixon was controversial all on his own, but he also happened to be in the rare position to appoint four new justices to the Supreme Court. Of course, it took him more than four tries to get his nominees approved by the Senate.

Following the Senate filibuster of Abe Fortas, President Nixon came into office needing to replace outgoing Chief Justice Earl Warren, whose resignation was contingent on the confirmation of a successor. Nixon made his top choice a fixture in his successful presidential campaign, helping him secure Senate approval for new Chief Justice Warren Burger.

That’s one down, but a year later, Fortas resigned (and Nixon most likely sensed a disturbance in The Force), leaving another Associate spot on the bench. This time, Democrats on the Senate rallied against the nomination of the conservative Clement Haynsworth. Maybe it was retaliation for the recent Republican filibuster of Fortas; maybe it was Haynsworth’s history of especially regressive views toward minorities and support of segregation laws; maybe it was the discovery of his history of questionable judicial ethics; in the end, Haynsworth’s nomination made it past the Judicial Committee only to be rejected by the full Senate.

Nixon tried again with nominee G. Harold Carswell, who encountered vigorous opposition from Democrats and hilariously lackluster support from fellow conservatives, one of whom famously pleaded, “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?”

With friends like these, Carswell’s nomination was also rejected. Finally, Nixon nominated Republican judge Harry Blackmun, who was unanimously approved by the Senate, and turned out to be not a reliably conservative judge, but another of the more famous and influential liberal justices in Supreme Court history.

Then, in 1971, two more ailing Justices—Hugo Black and John Harlan—retired. Nixon could hardly float potential nominees without attracting the ire of newspapers and Senators. He even attempted to nominate Mildred Lillie the first female candidate, but a committee from the American Bar Association preemptively declared her unqualified.

Nixon finally decided on Lewis Powell, Jr., whom had previously rejected Nixon’s offer of a nomination in 1969, along with William Rehnquest. Powell was approved almost unanimously, while Rehnquest faced significant opposition from a variety of groups outside the Senate. Ultimately, Rehnquest was also confirmed by a vote of 68-26, allowing the two new justices to be sworn in together.

1. First Ever Supreme Court

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The first Supreme Court was basically a big wet bummer. While most subsequent appointment controversies surrounded a partisan competition for power and influence over the judiciary through strategic appointments, the early court struggled just to retain its justices.

Things got right off to a bad start on the first scheduled session on February 1, 1790, when only three of the six justices showed up, failing to establish a quorum until the next day. Because the early Court was obliged to fulfill “circuit riding” duties, the various justices were often preoccupied at their respective circuit courts, so their earliest meetings were dedicated mostly to organizational issues, aka trying to answer the question of “What the hell are we doing here?”

It took so long for any actual cases to come before that first court, that Justice Rutledge resigned within a year (see above), and missed the first case of any consequence to hit the scene. 1793’s Chisholm v Georgia dealt with questions of state sovereignty, which was big news back in the day, but by 1795 the Court’s decision was already superseded by the ratification of the Eleventh Amendment.

At that point, the first Chief Justice John Jay retired from the bench so he could run for Governor of New York, and not even President Adams could convince him to come back to the Court five years later, when the Chief Justice spot opened up again.


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7 Comments

  1. The Annoyed Elephant on

    Bork? Very controversial nominee voted down by the Senate. To this day, liberal groups announce their intention to “bork” conservative nominees.

    • Very much an honorable mention here–I tried, arbitrarily, to build this list around those who actually made it through the process to serve on the Supreme Court, but Bork is definitely a case of interest. An imperfect list, admittedly, but I had to keep it to 10.

      That, and I figured his name got enough airtime already thanks to Swedish Chef.

  2. Very good and detailed article with lots of facts. Unlike some of the lists on the site that have a short one paragraph description for each number.

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