How Many Nominees Has the Senate Rejected From Serving on the Supreme Court?

Being nominated to the Supreme Court is rare, but having senators reject the nomination is even rarer.

Since 1789, 42 presidents have nominated 163 people to serve on the Supreme Court. Of those who were nominated, 126 were confirmed and seven declined to serve. Only 11 people who faced the Senate were not confirmed to the Supreme Court, and only one was rejected from serving as chief justice.

The first person to not be confirmed to serve on the Supreme Court was Alexander Wolcott. Nominated by President James Madison in 1811, he only received nine votes supporting his nomination and 24 senators voted against him.

Presidents Grover Cleveland and Richard Nixon each had two nominees rejected, the most of any president. The most recent rejection occurred under President Ronald Reagan in 1987 when he selected Robert Bork, a federal judge, to succeed Lewis Powell, Jr.

Bork held fast to the belief that judges shouldn't interpret the Constitution beyond the words of the founding fathers, and his track record on gender equality and civil rights came under sharp criticism.

"Robert Bork's America is a land 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, and schoolchildren could not be taught about evolution," Massachusetts Senator Edward Kennedy said after Reagan announced the nomination.

supreme court nomination rejections
Members of the public pay their respects beneath the casket of Associate Justice Ruth Bader Ginsburg into the evening at the U.S. Supreme Court, on September 23 in Washington, D.C. Only 12 people who were nominated to positions on the Supreme Court had their nominations rejected by the Senate. Win McNamee/Getty

When asked during his confirmation hearing why he wanted to serve on the Supreme Court, Bork said it would be an "intellectual feast." His nomination was defeated by a vote of 58 to 42. Two Democrats supported Bork's confirmation while six Republicans voted against him. In a statement following the vote, Reagan said he was "saddened and disappointed" that the Senate bowed to "a campaign of political pressure."

In 1869, a judiciary act brought the court up from seven justices to nine, meaning President Ulysses Grant had to nominate people to fill two newly created seats. That same year, Ebenezer Hoar became the first person to have a nomination to fill a new seat rejected.

Along with needing a confirmation from the Senate to serve on the court, the Senate must approve a president's choice for chief justice. The first Supreme Court rejection occurred in 1795 under President George Washington. When John Rutledge was nominated to the Supreme Court, the Senate quickly confirmed him, making Rutledge the first associate justice in America's history. However, six years later, when Washington nominated Rutledge to succeed John Jay as chief justice, the Senate rejected him by a vote of 14 against and 10 in favor.

Senators soured to Rutledge after he criticized the Jay Treaty, saying Washington should "die" rather than "sign that puerile instrument" and spoke out against him during his confirmation hearing. The Senate rejecting his nomination "gave me pain," Vice President John Adams wrote to his wife, Abigail, but he added, "though I could not but think he deserved it."

Chief justices, Adams said, must not "inflame the popular discontents which are ill-formed, nor propagate disunion, division, contention and delusion among the people."

Meanwhile, President Donald Trump is expected to announce his choice to fill the late Justice Ruth Bader Ginsburg's seat on Saturday. His previous two Supreme Court picks, Neil Gorsuch and Brett Kavanaugh, faced tense questioning from the Senate during their confirmation hearings. The same is expected to be true for whoever Trump chooses to replace Ginsburg given the proximity to the election and what a confirmation would mean for the conservative leaning of the court. However, Trump has vowed to pick a woman and the Senate has never rejected a female nominee during a vote.