The Senate rejected 27 (20%) of the 149 nominees to the Supreme Court made between the nation's founding and 2005. The reasons for the rejections vary, and include incompetence, inexperience, and impropriety. Most of the rejections, however, reflect in part, or even primarily, a difference between the President and the Senate over whether the nominated justice represents the right ideological choice.
The first Supreme Court nominee to be rejected by the Senate was John Rutledge, nominated by President George Washington in 1795, just eight years after the Constitution's drafting. Although some senators suggested they voted against Rutledge out of concern he was losing his sanity, the main reason for opposition (the nomination failed on a 10 to 14 vote) to Rutledge was the nominee's recently-expressed opposition to the Jay Treaty with Great Britain, a treaty popular in the Federalist-controlled Senate. The ideology-based Rutledge rejection, so soon after the Constitution's adoption, is strong evidence that the Senate's examination of a nominee's qualifications can be broad enough to encompass his political views.
While senators may vote against a nominee for many reasons, it is clear that several nominees since Rutledge have failed for political reasons more than out of concerns of incompetence or impropriety. Four nominees of President John Tyler, for example, failed largely because their belief in states' rights ran counter to those of the Whig-controlled Senate. A late-term Buchanan nominee failed in part because he had opposed the abolition of slavery. A Grant nominee went down to defeat because he had opposed the recent efforts to impeach President Andrew Johnson. John Parker, a nominee of Herbert Hoover, lost his Senate vote, 39 to41, out of concerns that he was insensitive to labor and African-Americans.
In the modern era, the Senate rejection of a Supreme Court nominee that is most clearly based on concerns with the nominee's politics or judicial philosophy was the 1987 defeat of Ronald Reagan nominee Robert Bork. In his confirmation hearings, Bork made clear that his originalist philosophy persuaded him that the Constitution contained no general right of privacy (and thus cases such as Griswold v Connecticut, overturning a state ban on the sale and possession of contraceptives, were--in Bork's opinion--wrongly decided) and that the Equal Protection Clause offered no special protection for discrimination based on gender. Despite the fact that Republicans controlled the Senate, enough moderate Republicans joined with most Democrats to defeat the Bork nomination, 48 to 52.
Nominations of Supreme Court justices and courts of appeal judges are now driven by staff working in the White House. (Nominations of federal district judges, on the other hand, are more likely to start with a member of Congress serving the district where the vacancy occurred, especially if the congressperson belongs to the President's party.) There are no objective criteria for whom a President might nominate; nothing in the Constitution even requires that a nominee have any legal training. The staff evaluates a candidate based on prior opinions (if the nominee has judicial experience), writings and speeches, and background to determine ideological compatibility with the President's goals, as well as the likelihood that the candidate could be confirmed by the Senate.
Judicial nominations are forwarded to the Senate Judiciary Committee, which conducts its own review (using its staff and those of its members) of the merits of the nominee. Hearings are held in which the nominee, as well as other persons knowledgeable about the nominee's qualifications, offer statements and answer questions posed by Committee members. After the hearing, the Judiciary Committee votes on whether to recommend confirmation of the nominee by the full Senate. A nominee who fails to win a majority of Committee votes usually sees his prospects die, unless the Committee chooses to forward the nomination to the full Senate without recommendation. The full Senate, once a nomination is sent to it, will debate the merits of the nominee and schedule a final vote on confirmation. On rare occasions, as happened when charges of sexual harrassment surfaced at the last minute against Clarence Thomas, a nomination might be sent back to the Judiciary Committee for further hearings. A simple majority is required for confirmation. The average time in recent decades between a presidential nomination of a Supreme Court justice and a final vote by the Senate has been a bit over two months.
Article II, Section 2, Clause
2: [The President] shall nominate, and by and with the Advice and Consent of
the Senate, shall appoint...Judges of the Supreme Court, and all
other Officers of the United States....
Article III, Section 1: The
judicial Power of the United States, shall be vested in one supreme
Court, and in such inferior Courts as the Congress may from time to
time ordain and establish. The Judges, both of the supreme and
inferior Courts, shall hold their Offices during good Behavior....
Two controversial Supreme
Washington and Lee Law Review, Summer 2001
by Yates, Jeff, Gillespie, William
Excerpts from Confirmation Hearings:
LINK TO TRANSCRIPTS OF CONFIRMATION
HEARINGS FOR SUPREME COURT NOMINEES
2. Does the Constitution, in your opinion, presume that senators are free to vote against competent nominees for purely political reasons?
3. Regardless of whether they have the power to do so, should senators be free to weigh ideological concerns in their decision whether to support a nominee, to the same extent as a president is free to weigh those concerns in his or decision to make the nomination?