Supreme Court A Vacancy on the Court <Justices

Supreme Court Nominations That Failed

Below are nominations announced by the president that subsequently failed for one reason or another. Basically, nominees can go the distance only to be rejected by the Senate, which has happened in 12 instances. In the 19th century, especially prior to 1860, it was also not uncommon for the Senate simply to take no action or act only to postpone indefinitely the consideration of a nomination. By 1881, there were seven such occurrences. With the inaction on President Obama's nomination of Merrick Garland in 2016, there are now eight.

Two nominations failed because they were for vacancies that ultimately did not exist— one resulting from a reduction in the size of the Court when the so-called Radical Republicans in Congress acted to reduce the size of the Court in 1866 to prevent President Andrew Johnson from making an appointment and the other from the failed nomination of Abe Fortas in 1968. President Lyndon Johnson had nominated Fortas to replace Earl Warren as Chief Justice. Fortas was a sitting associate justice and the simultaneous nomination of Fortas to replace Warren and of Homer Thornberry to fill the Fortas vacancy all collapsed in the face of a Senate filibuster. The Fortas nomination was withdrawn, Warren continued as Chief Justice, and Fortas remained an associate justice, leaving Thornberry with no one to replace.

Seven nominations have now resulted in withdrawals by the president before consideration by the Senate. Four nominations were resubmitted and confirmed after the initial effort failed. Andrew Jackson's nomination of Roger Taney be an associate justice was postponed by the Senate only to have him subsequently nominated and confirmed as Chief Justice. Early in the nation's history it was not uncommon for nominees to decline appointment to the Court even after their nomination and confirmation. There are 7 instances of that. Finally, Edwin Stanton, nominated by president Grant in 1869, has the dubious distinction of being the only nominee to die after his confirmation but before he could take his seat on the Court.

PresidentHow Nomination Failed
1 Harrison, Robert 1789 Washington Declined (even though confirmed)
2 Paterson, William 1793 Washington Withdrawn (resubmitted and confirmed later in the year)
3 Rutledge, John 1795 Washington Rejected by 10-14 Senate vote(after serving as interim Chief Justice)
4 Cushing, William 1796 Washington Declined (even though confirmed)
5 Jay, John 1800 Adams Declined (even though confirmed)
6 Lincoln, Levi 1811 Madison Declined (even though confirmed)
7 Wolcott, Alexander 1811 Madison Rejected by 9-24 Senate vote
8 Adams, John Q. 1811 Madison Declined (even though confirmed)
9 Crittenden, John J. 1828 Adams, JQ Postponed
10 Taney, Roger 1835 Jackson Postponed (subsequently confirmed as Chief Justice)
11 Smith, William 1837 Jackson Declined (even though confirmed)
12 Spencer, John 1844 Tyler Rejected by 21-26 Senate vote
13 Walworth, Reuben 1844 Tyler Withdrawn after Senate postponement
14 King, Edward 1844 Tyler Postponed
15 Spencer, John 1844 Tyler Withdrawn
16 Walworth, Reuben 1844 Tyler No action taken by Senate
17 King, Edward 1844 Tyler Withdrawn after Senate postponement (having been renominated)
18 Walworth, Reuben 1844 Tyler Withdrawn
19 Read, John 1845 Tyler No action taken by Senate
20 Woodward, George 1845 Polk Rejected by 20-29 Senate vote in 1846
21 Bradford, Edward 1852 Fillmore No action taken by Senate
22 Badger, George 1853 Fillmore Postponed
23 Micou, William 1853 Fillmore No action taken by Senate
24 Black, Jeremiah 1861 Buchanan Rejected by 25 to 26 Senate vote
25 Stanbery, Henry 1866 Johnson No action (no vacancy existed because Senate reduced size of Court)
26 Hoar, Ebenezer 1869 Grant Rejected by 24 to 33 Senate vote in 1870
27 Stanton, Edwin 1869 Grant Died (after confirmation, but before taking oath)
28 Williams, George 1873 Grant Withdrawn before Senate consideration
29 Cushing, Caleb 1874 Grant Withdrawn before Senate consideration
30 Matthews, Stanley 1881 Hayes No action (resubmitted by Pres. Garfield and confirmed)
31 Conkling, Roscoe 1882 Arthur Declined (even though confirmed)
32 Hornblower, William 1893 Cleveland No action taken by Senate
33 Hornblower, William 1893 Cleveland Rejected by 24-30 Senate vote in 1894
34 Peckham, Wheeler 1894 Cleveland Rejected by 32-41 Senate vote
35 Butler, Pierce 1922 Harding No action, resubmitted and confirmed
36 Parker, John 1930 Hoover Rejected by 39-41 Senate vote
37 Harlan, John 1893 Eisenhower No action, resubmitted and confirmed
38 Fortas, Abe 1968 Johnson, LB Withdrawn (for Chief Justice, after Senate cloture vote failed, 45-43)
39 Thornberry, Homer 1968 Johnson, LB Withdrawn (no vacancy existed after Fortas withdrawal)
40 Haynsworth, Clement 1969 Nixon Rejected by 45-55 Senate vote
41 Carswell, Harrold 1969 Nixon Rejected by 45-51 Senate vote in 1970
42 Bork, Robert 1987 Reagan Rejected by 42-58 Senate vote
43 Ginsburg, Douglas 1987 Reagan Withdrawn before Senate action
44 Miers, Harriett 2005 Bush, GW Withdrawn before Senate action
45 Garland, Merrick 2016 Obama No action taken by Senate