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COLLAPSE OF THE GINSBURG NOMINATION : Tyler Had Most Nominees Rejected--Five Out of Six

November 08, 1987|JOHN M. BRODER | Times Staff Writer

WASHINGTON — President Reagan still has some way to go before he challenges the record for the most Supreme Court nominees rejected or withdrawn.

That dubious honor belongs to President John Tyler, who had the opportunity to fill two Supreme Court vacancies during his term in office from 1841 to 1845. The Senate, however, killed five of his six nominations.

Withdrawals of controversial nominations and Senate rejection of court candidates are not rare. Of the 143 candidates nominated to the high court since its inception in 1789, 28 prior to Douglas H. Ginsburg have failed to win confirmation. Twelve nominations were rejected outright by Senate vote; the rest were withdrawn by the President or died from Senate inaction.

Common Reason Is Politics

By far the most common reason for rejection is politics--either because a partisan Senate objected to the candidate's views or because the name was proposed late in a lame-duck President's term. The majority of rejections occur when the Senate majority and the President are from different political parties.

Ginsburg appears to be the first high court candidate rejected primarily because of his private life, as opposed to questions of politics or judicial qualifications.

"Most rejections had to do with policy issues or feared policy implications. The nominee is seen as upsetting very delicate political balances," said J. Woodford Howard, a professor of political science at Johns Hopkins University.

President Herbert Hoover tried to name John J. Parker, a respected federal judge from North Carolina, to the high court in 1930. But Hoover's popularity was slipping as the nation descended into the Great Depression, and an orchestrated campaign by labor and civil rights groups doomed the nomination.

These groups later came to regret their opposition. As an appeals court judge, Parker became a judicial leader in the fight for black rights, while the successful Supreme Court candidate, Owen J. Roberts, compiled a mixed civil rights voting record on the high court.

Lame-duck presidents, falling victim to this "save the seat syndrome" in the Senate, have particular problems in getting their Supreme Court nominees confirmed. Of Tyler's five nominations in his last year in office, one was rejected because the Senate found his politics offensive, two were killed because the Senate wanted to hold the seat open for Tyler's successor, and two were rejected after the election of 1844 but before the winner, Democrat James K. Polk, took office.

President Millard Fillmore, a Whig, had three nominations effectively killed by Democratic Senate inaction while the Senate waited for Fillmore's successor, a Democrat, to assume office. Presidents Ulysses S. Grant and Lyndon B. Johnson also had two nominations rejected in their last year in office.

Only two Supreme Court candidates were rejected as incompetent. In 1873, President Grant picked his attorney general, George H. Williams, to be chief justice. Williams, who had served as chief justice of the Oregon Territories, was found to be unqualified, and Grant withdrew his name before the Senate could vote to reject him.

G. Harrold Carswell, an appointee of Richard M. Nixon, was voted down by the Senate in 1970 because of a judicial record generally agreed to be mediocre.

The Senate refused to approve President Johnson's elevation of Associate Justice Abe Fortas to chief justice because of suggestions of financial impropriety. Fortas had accepted a $20,000 fee from industrialists Louis E. Wolfson, who had been indicted for selling unregistered securities. Although Fortas, widely acknowledged as an out-standing jurist, denied any wrongdoing, he resigned "to enable the court to proceed with its vital work free from extraneous stress."

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