8 of the Most Controversial US Supreme Court Nominees

U.S. Supreme Court Justices are unelected officials with lifelong terms. As such, many people don’t bat an eye when their confirmation proceedings turn into months of high drama, accusations, and nitpicking.

It might surprise you, however, to know that SCOTUS confirmation hearings weren’t always so tortuous. Once upon a time, nominees were confirmed without much ado – provided there weren’t any obvious blemishes on their records.

As President Obama gears up to make his second nomination to the highest court in the land, Shmoop looks back at 8 controversial nominees to demonstrate trends and uncover some interesting tidbits.

1. Some People’s Attorney

Name: Louis D. Brandeis

Nominated by: Woodrow Wilson

Confirmed by: a Senate vote of 47 to 22

Years on the Supreme Court: 1916 – 1939

The Monkey Wrench: Widespread opposition to Brandeis’s appointment caused “more controversy than any other Supreme Court nomination” prior to that point, according to the June 6, 1916 edition of the New York Times.

The Scoop: Brandeis was the kind of guy who was revolutionizing the Supreme Court before he even served on it.

In the 1908 case Muller v. Oregon, Brandeis persuaded the Supreme Court that limiting a woman’s workday to ten hours wasn’t unconstitutional based on – get this – actual data, which included statistical, economic, and sociological information as well as testimony from expert witnesses. The so-called “Brandeis Brief” has since become a model for court presentations.

Known as the “people’s attorney,” Brandeis went on to successfully oppose J.P. Morgan’s New England transportation monopoly, expose President Taft’s Secretary of the Interior as being anti-conservationist (and embarrass him into resigning), and fight for New York garment workers in a 1910 strike.

Woodrow Wilson admired the guy so much that he adopted Brandeis’s economic doctrine of New Freedom in his 1912 presidential campaign. Brandeis University admired him so much that they – spoiler alert – named themselves after him.

So, why all the fuss when Wilson appointed him to the bench? Well, Brandeis was the first Jewish nominee to the Supreme Court. In 1916, anti-Semitism was – to say the least – still widespread in the United States.

Brandeis’s successful nomination paved the way for six more Jewish SCOTUS Justices to follow, including current Justices Ruth Bader Ginsburg and Stephen Breyer.

2. Filibuster Vigilantly

Name: Abraham Fortas

Nominated by: Lyndon B. Johnson

Confirmed by: a Senate voice vote

Years on the Supreme Court: 1965 – 1969

The Monkey Wrench: In their first ever filibuster against a Supreme Court nominee, the Senate prevented his promotion from Associate Justice to Chief Justice in 1968.

The Scoop: In 1965, President Lyndon B. Johnson asked Supreme Court Justice Arthur Goldberg to resign his post in exchange for an ambassadorship in the UN. The goal? To appoint his friend, Abe Fortas, to Goldberg’s now-vacant position.

So far, so good. When Chief Justice Earl Warren announced his retirement three years later, LBJ then attempted to promote Fortas in his stead. Here’s where the ship of state really hits the fan.

Eager for Earl Warren to step down, conservative senators were none too thrilled when Fortas, another liberal, was chosen to replace him. As a result of the conservatives’ unified front, Fortas made history in becoming the first Chief Justice nominee ever to have to appear before the Senate to face questioning.

Conservative senators filibustered his appointment, allowing Richard Nixon, who’d since taken LBJ’s place in the White House, to instead appoint Warren Burger as Chief Justice in 1969. This move not only satisfied conservatives, but also had the added bonus of keeping the whole “Chief Justice Warren” thing going.

In an ironic twist, Fortas resigned in scandal later that same year after having accepted a lifetime annual stipend of $20,000 from a Wall Street financier in exchange for some undisclosed advice.

3. The Hruska Rescue

Name: G. Harrold Carswell

Nominated by: Richard Nixon

Rejected by: a Senate vote of 51 to 45

The Monkey Wrench: Carswell was seen by some as a “mediocre” archconservative with pro-segregation leanings.

The Scoop: After Abe Fortas resigned in 1969, Nixon attempted to appoint Clement Haynsworth to the Supreme Court to fill the vacancy. Democrats opposed the appointment – likely in retaliation to the conservative filibuster against Fortas’s promotion to Chief Justice.

Flipping liberals the political birdie, Nixon then appointed Harrold Carswell, a federal judge with a high reversal rate and a bad civil rights track record, to take over Fortas’s post.

If ticking off liberals was indeed Nixon’s intention in nominating Carswell, he succeeded brilliantly.

Civil-rights advocates pointed out that Carswell had supported racial segregation in the late forties. Feminists came forward to testify against his candidacy in the Senate.

After Carswell was accused of being a “mediocre” nominee, Nebraskan Senator Roman Hruska rushed to his defense, stating: “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?”

Suffice it to say that this wasn’t the lifeboat Carswell was hoping for. Carswell’s nomination was narrowly defeated in the Senate.

4. Bork! Bork! Bork!

Name: Robert H. Bork

Nominated by: Ronald Reagan

Rejected by: a Senate vote of 58 to 42

The Monkey Wrench: Bork was one of the first Supreme Court nominees to be rejected purely on the basis of ideology rather than qualification.

The Scoop: Bork was a smart, accomplished Circuit Court judge at the time of his Supreme Court nomination in 1987.

Within an hour of the announcement, Ted Kennedy went on television to accuse Bork of envisioning an America “in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids.”

Believe it or not, the process and rhetoric only went downhill from there.

The White House failed to respond to Kennedy’s accusation for over two months, which certainly didn’t help the nomination.

Gregory Peck (a.k.a. Atticus Finch in the 1962 adaptation of To Kill a Mockingbird) joined the fray by lending his voice to anti-Bork commercials.

In an incident that helped lead to the 1988 Video Privacy Protection Act, someone even leaked Bork’s video rental history to the press. (Don’t get your hopes up – its contents were unremarkable.)

Marking a new era of sensationalized confirmation hearings, the nomination gave rise to the verb “to bork,” which, according to the Oxford English Dictionary, means: “to defame or vilify (a person) systematically, esp. in the mass media, usually with the aim of preventing his or her appointment to public office.” Ouch.

5. Sexual Hearing

Name: Clarence Thomas

Nominated by: George H. W. Bush

Confirmed by: a Senate vote of 52 to 48

Years on the Supreme Court: 1991 – present

The Monkey Wrench: Anita Hill, one of Clarence Thomas’s former co-workers, accused him of sexual harassment.

The Scoop: Clarence Thomas, who is the second African-American to serve on the Supreme Court, was nominated in 1991 to succeed Justice Thurgood Marshall, who was the first.

The confirmation was going smoothly until an FBI leak revealed that Anita Hill, Thomas’s former co-worker at the Equal Employment Opportunity Commission, had accused him of indecent sexual conduct. So began one of the most bitterly fought confirmation hearings in Senate history.

In the tradition of Robert Bork’s nomination, Thomas’s confirmation proceedings were heavily influenced by a variety of private interest groups. Florynce Kennedy of the National Organization for Women famously threatened: “We’re going to bork him. We’re going to kill him politically.”

Bork’s legacy, however, ended up helping Thomas out quite a bit. Whereas Bork was lambasted for being outspoken in his conservatism, Thomas was careful not to reveal his position on controversial issues during the hearings. This strategy of dodging questions that reveal one’s beliefs on politically charged issues has since become common practice. As such, some observers question the value of modern confirmation hearings beyond that of “political theater.”

Clarence Thomas was eventually confirmed as an Associate Justice by the narrowest margin in confirmation history.

6. Re-Do

Name: Harriet E. Miers

Nominated by: George W. Bush

Nomination withdrawn

The Monkey Wrench: Miers had never served as a judge and was accused of being nominated entirely on the basis of her friendship with Bush.

The Scoop: Originally appointed to head the search committee for candidates to replace Justice Sandra Day O’Connor, Harriet Miers was nominated as O’Connor’s successor after several senators urged Bush to consider someone from outside the appellate court system.

Even among conservatives in Bush’s political base, however, Miers was not what they’d had in mind. Opposition to her nomination was remarkably widespread, bi-partisan, and resolute.

Having little experience in litigation and none in constitutional law, Miers was woefully unprepared for even her initial, one-on-one meetings with members of the Senate Judiciary Committee.

Ranking Democrat Patrick Leahy reported that Miers’s responses “range[d] from incomplete to insulting,” prompting Leahy and his fellow Democrat, Arlen Specter, to make her re-do some of her answers. Miers also mistakenly stated that proportional representation was a constitutional right.

Just three and a half weeks later, Miers asked Bush to withdraw her nomination – a request which he “reluctantly” accepted.

7. Enrollment CAP

Name: Samuel A. Alito, Jr.

Nominated by: George W. Bush

Confirmed by: a Senate vote of 58 to 42

Years on the Supreme Court: 2006 – present

The Monkey Wrench: Alito’s staunch conservatism, coupled with his membership in a conservative Princeton alumni group, drew scrutiny of his stances on women and minority rights.

The Scoop: After withdrawing Miers’s nomination, Bush nominated Alito to replace Sandra Day O’Connor.

Although he was unanimously voted “well qualified” for the position by the American Bar Association, questions arose when it was revealed that Alito associated with Concerned Alumni of Princeton. CAP not only sprung from the ashes of a group opposed to Princeton becoming co-ed, but also took a stance against affirmative action at the university.

Alito’s ties to CAP proved to be weak at best, but he was careful not to take an ideological stance during the confirmation hearings despite having been outspokenly conservative in the past.

In an application for a promotion in the Justice Department, Alito once wrote that “the Constitution does not protect a right to an abortion.” Moreover, as a circuit court judge, Alito voted to uphold a part of Pennsylvania law that required husbands to be notified of their wives’ abortions.

When questioned in 2005, however, Alito claimed that Roe v. Wade deserved “great respect” and then declined to state how he would vote on it if confirmed.

8. A Politically Unwise Statement by a Wise Latina

Name: Sonia Sotomayor

Nominated by: Barack Obama

Confirmed by: a Senate vote of 68 to 31

Years on the Supreme Court: 2009 – present

The Monkey Wrench: “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.”

The Scoop: In a 2001 UC Berkeley Law lecture, Sonia Sotomayor stated that “our gender and national origins may and will make a difference in our judging.” She then expressed the hope that someone in her shoes would make better decisions than a white male from a different background.

Eight years later, when Sotomayor was nominated to the Supreme Court, these statements created a media storm, causing conservatives such as Newt Gingrich to accuse her of being a “racist” unfit to judge even-handedly.

In spite of this scandal, the ABA Journal identified Sotomayor to be politically centrist in at least two articles (dated from 2008 and 2009). In fact, she’s the first person to be nominated to three different judiciary positions by three different presidents, both Republican and Democrat. After intense debate, Sotomayor sailed through the Senate vote to become the first Latina woman to sit on the Supreme Court.

4 thoughts on “8 of the Most Controversial US Supreme Court Nominees

  1. It’s cute you continue to keep faith in Obama. What has been your favorite from him? Ending Gitmo? Slowing down the wars? Ending DADT? Offering a public option? Pushing cap-n-trad­e? Taxing the nasty rich? Which, so many great for the working man alternatives by this talker. So cute are the Obama supporters­/believers­. In his case, words speak louder than actions! LOL

  2. Sina, your comment is out of place here. Gitmo was Bush and not Obama. Yes he wants to end it…but replace it with what. Bush has jailed such people as the second cousin twice removed from Osama Bin Laden’s driver. If this man did not hate us before, he certainly does now after being jailed for 8 years! releasing him would result in releasing someone who has since become a danger to the United States into the world system….and he has had 8 years or so to network on top of that! Not a wise move. Unlike Bush, who proceeded to do unwise things regardless of the advice he got from others (See the Shinseki file) Obama is making a decision which is, in the long haul the wisest. Gitmo was GW Bush not Obama…but like many Presidents, he has been saddled with the baggage of his predecessor. Massive debt, two wars, a financial regulatory system that did not regulate, environmental degradation, a view of Global Warming that clearly is out of step with that cutesy thing you would call science. I could go on and on. Obama has performed wonders in light of just how deep the ditch was that George W. Bush and the Republicans who followed him blindly drove us unto. Where, oh where, were all the budget hawks when GW wanted to spend 524 million a week on Iraq?

  3. One more comment on Gitmo. It would also be worthy of mention that on two separate occasions, the Obama administration approached the closing of Gitmo. Once to replace it by moving all prisoners into the various penal systems of various states. Republican lawmakers opposed it. The second time by proposing the creation of a Maximum security prison to hold all of them on U.S. soil Again Republican Lawmakers balked. Gitmo has the virtue of being a U.S. military installation that is well guarded and which requires Al Queda to have a Navy and Marine force to break their guys out…a commendable option all the way around.

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