Presidents and Supreme Court Nominations
Imagine Thomas Jefferson, John Adams, and James Madison having a drink and relishing the concept of checks and balances they’d just enshrined in our founding Constitution.
“Just wait until they need a new Supreme Court Justice. They’ll have to engage all three branches of government to accomplish it. Won’t that be glorious?”
Since 1789 that “glorious” experience has been accomplished 164 times. The President (Executive Branch) makes a nomination to the Senate (Legislative Branch), which provides “advice and consent” for the Supreme Court (Judicial Branch).
The Founding Fathers also imagined this process to be relatively pure and free of political shenanigans. In that, they suffered from naivete. Right off the bat, George Washington, who had the most justices confirmed among all the presidents at 10, had one of his nominees rejected by the Senate. James Madison, the 4th President, had one nominee rejected. Over time we’ve seen 12 rejections in all, the most recent being Ronald Reagan’s nominee Robert Bork, in 1987. George W. Bush withdrew two nominations during his two terms. Merrick Garland was nominated by Barack Obama, but no action was taken.
The make-up of the Supreme Court, as realized by the number of justices, also evolved over time and was subject to political pressures. Our 17th President, Andrew Johnson, was so reviled that the Congress passed a law in 1866 to reduce the number of justices from 10 to 8, to prevent Johnson from nominating any replacements. After Johnson survived impeachment (by one vote) and left office in 1869, Congress passed another law to cancel the 1866 law and settle the number of justices at 9, where it’s been ever since.
All was quiet on that front until 1937. Franklin D. Roosevelt, who was 9 for 9 in getting his nominees to the court confirmed, got a firm slap from the Court over some of his New Deal laws. Roosevelt was furious and sought ways to work around the Court. He floated the idea of expanding the number of justices from 9 to 15, a move that became known as court packing. His strategy never made it into law.
For decades, these nominations received scant attention, with 52% of them confirmed by voice vote alone. The last voice vote was for one of Lyndon Johnson’s nominees in 1965. The nature of our politics now demands a roll call vote where a Senator must cast their vote in public, thus open to accountability, criticism, and pressure.
The Senate Rules for confirmation have also been adjusted over the years. It used to require a 67% majority for confirmation. Later, it was lowered to 60%, and as of 2017, now requires only a simple majority. Given the current polarized political environment, if the bar was 67%, it’s likely no justices would ever be confirmed, eventually breaking down our government’s judicial branch entirely.
Setting aside the political nature of these nominations, some interesting bits of trivia have accumulated over the years.
William Howard Taft is the only man who has served both as president and Supreme Court justice. While Chief Justice Taft lobbied Congress to build the Court its own home across the street from the Capitol. He resigned his position to retire, as many do, just prior to his death in 1930.
One other man might have accomplished Taft’s feat, had Charles Evans Hughes defeated Woodrow Wilson in 1916. Hughes resigned his seat on the Court to run for president. Later, Herbert Hoover nominated him to rejoin the Court and he did so in 1930.
Also of interest: John Marshall, our 4th Chief Justice, was nominated by John Adams. He was Thomas Jefferson’s cousin, although they were in fact political rivals.
In times of national crisis, the Chief Justice has occasionally played a significant role in resolving the issue with presumed integrity and without bias. Earl Warren served as the head of the Warren Commission in the 1964 investigation into the assassination of John F. Kennedy. In 1974, Warren Burger headed the Court during the Watergate crisis, supervising several milestone decisions that ultimately led to the resignation of Richard Nixon.
Lyndon Johnson nominated Thurgood Marshall as the first black on the Court in 1967. Ronald Reagan nominated Sandra Day O’Connor as the first female on the Court in 1983. Barack Obama nominated Sonia Sotomajor as the first Hispanic on the court in 2009. Joe Biden nominated Ketanji Brown Jackson as the first black female onto the Court in 2022.
In the 21st Century, given the high stakes involved, the process in the future likely will not be “glorious”.
Interested in learning more about the presidents? Visit the Carolyn & James Millar Presidential Gallery on the upper level of the Booth Western Art Museum. The gallery features original letters and photographs of every U.S. president. Learn more at www.boothmuseum.org.











