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 The Fortas nomination was withdrawn, Warren continued as Chief Justice, and Fortas remained an associate justice, leaving Thornberry with no one to replace.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.