Failed Nominees: A Rare Breed

Remember Douglas Ginsburg? Probably not.

Ginsburg was former President Ronald Reagan’s choice to succeed the retiring Justice Lewis Powell on the U.S. Supreme Court in 1987 after his original choice, Robert Bork, was rejected for views that critics described as outside the judicial mainstream.

While grumbling typical of high-court nominations greeted the president’s choice, Ginsburg appeared on his way to a standard confirmation until Nina Totenberg, a National Public Radio correspondent, reported that he smoked marijuana on several occasions in the 1960s and 1970s, possibly with students after he became a law school professor.

Those were the days of first lady Nancy Reagan’s “Just Say No” anti-drug campaign, leading Ginsburg to request that his nomination be withdrawn _ the first Supreme Court selection to bow out since President Lyndon Johnson rescinded his nomination of Justice Abe Fortas to serve as chief justice in 1968.

Withdrawing the nomination of a Supreme Court choice is rare. Of the 150 individuals called upon to fill a seat on the nation’s highest court, 28 have failed. Many, like Bork, didn’t gain Senate confirmation. Only seven names have been withdrawn.

Before Fortas, you have to venture all the way back to Jan. 9, 1874, when President U.S. Grant nominated Caleb Cushing, of Massachusetts to serve as chief justice. The selection generated strong opposition in the Senate _ Cushing was pro-Union but opposed the abolition of slavery during the Civil War _ forcing Grant to withdraw the nomination four days later.

Now pressure is growing in Washington for another withdrawal. Harriet Miers, President Bush’s choice to succeed O’Connor, has attracted opposition from influential conservative commentators and publications like the National Review, who have editorially called for her to step aside. A number of senators whose votes will be needed for her confirmation, including Sen. Sam Brownback, R-Kan., have raised questions about her qualifications.

The White House has thus far stood steadfast behind the White House counsel, who has no judicial experience and has exhibited little familiarity with constitutional law.

“The president is confident that Harriet Miers is going to be confirmed,” said Scott McClellan, Bush’s press secretary. “Harriet Miers is someone who is exceptionally well qualified to serve on our nation’s highest court. I would encourage you to go and look at her qualifications and experience and compare that to previous justices who did not come from the court that have been confirmed to our nation’s highest court.”

But Bush and the Senate might be heading for an impasse. Members of the Senate Judiciary Committee have made some initial inquiries about the White House turning over documents pertaining to the advice Miers has afforded the president as his counsel, asserting they are needed to provide insight into the nominee’s legal philosophy. The president has indicated his office won’t comply with the demands, citing executive privilege.

As for Ginsburg, he retained his seat as a judge on the U.S. Circuit Court of Appeals after his nomination to the Supreme Court crashed and burned. He rose to the position of chief judge on the court in July 2001. The high-court seat he was headed for eventually was filled by Justice Anthony Kennedy.

(Contact Bill Straub at StraubB(at)