Why would the Senate not confirm a SCOTUS nominee?

Question

Why would the Senate ever not confirm a SCOTUS nominee? The same President would just appoint someone else, so it will be someone else with the same ideology. Does it basically mean "This person you picked is a really bad choice; we think you can do better"?

There is no constitutional limit how many nominees the Senate may reject. At least two presidents (Nixon and Reagan) had two nominees in a row rejected. Until they nominated someone deemed a bit more moderate IIRC. — the gods from engineering, Jun 27 '22 at 17:08

Bryan Krause · Accepted Answer · 2022-06-27T15:55:41.923

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Mostly, it's a threat that if POTUS nominates someone too ideological or unqualified, they won't get confirmed. It's a mistake to think that every "liberal" justice will rule the same or every "conservative" justice will rule the same, such that they are simply interchangeable: look at any year's set of SCOTUS decisions and you'll find mixes from both ideological wings on any given case. Only a few particular issues tend to go strictly on ideological lines, and even those tendencies are broken quite often.

Additionally, presidents and even their own party may disagree on which particular individual to nominate, ideology aside. Presidents may wish to nominate people they know and trust personally rather than people who have broadly appreciated experience and qualifications; Senators can reject nominations they perceive to be based on this sort of cronyism or personal favors in preference of someone more broadly respected.

Ideally, the result is that presidents of either parties would nominate well-qualified justices nearer to the center, even if they do lean a certain way. Historically, this has resulted in some justices who don't even tend to rule the ideological direction that would be predicted by who nominated them; David Souter is one (fairly) recent example.

It's rare that a nominee is actually voted down, because Senators discuss these things (privately and publicly) during the nomination process, so it's not a particular mystery to people working on the nomination whether the candidates they are considering will get confirmed or not. When nominees have been voted against, like Robert Bork, the replacement (Kennedy) seems to have been more moderate than Bork was expected to be.

If a president's nominee is not confirmed, they have to start the nomination process over again, which takes time. If they take too much time, they may not have a chance to nominate anyone because their term in office will end.

Towards the end of Barack Obama's second term, Merrick Garland was nominated. The Senate, controlled by Republicans, chose to not even consider the nomination, which resulted in the next president choosing someone for the open seat, instead. I think it's pretty clear what the political benefits gained by the Republican-controlled Senate were there.

edited Jun 27 '22 at 15:55

answered Jun 27 '22 at 14:50

Bryan Krause

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Curious on the downvote, happy to make adjustments if an explanation is given (though certainly your right to not explain if preferred, as well). – Bryan Krause Jun 27 '22 at 14:59
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There can also be considerations other than ideology that can make a nominee unpalatable to the Senate. The nomination of Harriet Miers was withdrawn because she was viewed as insufficiently experienced and too closely tied to George W. Bush personally. This ended up being another case where (as you note) the nominee never actually got to a vote. – Michael Seifert Jun 27 '22 at 15:38
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@MichaelSeifert What does it say about the world that I forgot to mention the non-political posturing, actual evaluation of competency aspect to the Senate's confirmation role? Good point. – Bryan Krause Jun 27 '22 at 15:51
When was the last time a nomination was blocked because of ideology or not having enough experience? As far as I am aware of recent blocks have been because of the party of the president/nominee and hoping to get someone of a different party in office. In fact the most recent confirmed pick had concerns about experience but that did not seem to be a concern when voting. – Joe W Jun 27 '22 at 16:01
@JoeW I started my question with "Mostly, it's a threat" because it's rare that a nomination is ever blocked because of ideology. Rather, a president usually nominates someone moderate enough to get the votes for confirmation. Miers, as mentioned by MichaelSeifert, is an example of someone 'blocked' for lack of experience (by both parties), but never came to a vote. All of the Trump nominees were confirmed with a GOP-majority Senate, who had no ideological qualms about the nominees. The minority party certainly complained about both ideology and experience of Barrett but lacked the votes. – Bryan Krause Jun 27 '22 at 16:03
@JoeW Garland is a good example of how things normally work, despite never coming to a vote... Garland was someone who Republicans had previously praised and easily voted to a federal judgeship when nominated by Clinton under a GOP-controlled Senate, and perceived as moderate. Traditionally, that's the sort of candidate that is nominated rather than more ideological choices when the president's party does not have control of the Senate. He was nominated as a completely non-controversial candidate by ordinary standards: moderate, older than other possible candidates, etc. – Bryan Krause Jun 27 '22 at 16:10
Garland is not a good example of how things normally work, he was someone who had support from both sides in previous nominations and when it came to the supreme court all hearings where refused. His nomination was stopped for the sole purpose of waiting on the next president. Proof of this can be seen at the end of Trumps time in office when a nomination was rushed through in order to prevent the next president from picking the person. – Joe W Jun 27 '22 at 16:55
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@JoeW How things normally work as far as nominations: Obama did not nominate an extreme ideological liberal and see if they get rejected. Rather, he nominated a moderate ordinarily acceptable to both parties, as normally happens when the president in power does not control the Senate. The reason this is done is because of the threat of not getting confirmed by the Senate. You don't usually see evidence of someone blocked for ideology by the Senate voting them down, rather, that hypothetical nominee is never nominated in the first place - that's my point. – Bryan Krause Jun 27 '22 at 17:01
Yes, and it normally works that they would have gotten a hearing and appointed however that is not what happened. Nothing was done with the claim that it was to close to an election and 4 years later after the election started and votes had been cast another nomination with concerns about enough experience got rushed through. Just because something worked that way in the past and is supposed to work that way doesn't mean it is currently working that way – Joe W Jun 27 '22 at 17:53
@JoeW I'm not sure what your point is with respect to this answer or who you are arguing with. – Bryan Krause Jun 27 '22 at 17:59
My point is that the "threat" of the senate not confirming a nomination based on the nominee being extreme isn't something that happens. Recently it has been about what party the nominee/president belong to. Issues with the nominee being extreme are normally dealt with before it gets to the senate. I would wager that not many have been blocked because of being to extreme. You wanted to know the reason for a downvote and I am giving you my opinion on what could have caused the downvote. – Joe W Jun 27 '22 at 18:08
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@JoeW "My point is that the "threat" of the senate not confirming a nomination based on the nominee being extreme isn't something that happens" - You're describing something that has happened once, and saying based on that example that "this isn't something that happens" when it has been the way things happen in all other examples. – Bryan Krause Jun 27 '22 at 18:09
I am saying that isn't a threat that happens and my complaint is something that happens a lot more then you think, the issue is the supreme court only has opening rarely. However if you look at all the judges that Obama attempted to nominate that got blocked versus Trump you will see this difference. Not to mention it is very likely to start happening more and more often as it has been proven to work. They blocked an Obama justice, rushed in a Trump justice and are getting the supreme court rulings that they want. – Joe W Jun 27 '22 at 18:13

score 3 · Answer 2 · answered Jun 27 '22 at 15:17

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Remember that the clock for the next election is always ticking. By not confirming a SCOTUS nominee, time is wasted, and the sitting president may not be the next president.

Check this blatantly partisan cartoon.

answered Jun 27 '22 at 15:17

o.m.

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Clearly partisan? You mean how an Obama nomination never got hearings because it was too close the the election while a Trump nomination got approved even though voting was already happening? – Joe W Jun 27 '22 at 16:56
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@JoeW, scroll down a bit and tell me that site is neutral. I like the cartoon, or I wouldn't have posted it, but the remark seemed necessary. – o.m. Jun 27 '22 at 18:22
@JoeW The Democrats blocked multiple Bush 43 nominees, some of them ostensibly because they would become SCOTUS material. – Machavity Jun 27 '22 at 18:22
@Machavity How many nominees did they block for Obama? They ended up blocking a lot of them and they also blocked one because it was "too close" to the election (presidential primaries) and they rushed one through after voting had started. – Joe W Jun 27 '22 at 18:44
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@o.m. Did I say the site wasn't partisan? Or was I referring to a single comic that is pointing out that they followed one set of rules for Obama and another set of Rules for Trump? – Joe W Jun 27 '22 at 18:45

score 0 · Answer 3 · answered Jun 27 '22 at 14:50

If by not confirm you mean voting against the confirmation it would be because they don't want the person in the court. However if by no confirm you mean doing nothing it is because they don't want the president to pick the nomination. In that case it is likely trying to delay the pick until the next president in order to change who is doing the pick. This happened at the end of the Obama years when noting was done in the hopes that the next president would be a Republican.

score 0 · Answer 4 · answered Jun 27 '22 at 18:21

The same President would just appoint someone else, so it will be someone else with the same ideology. Does it basically mean "This person you picked is a really bad choice; we think you can do better"?

That's not always true. It was true in the failed nomination of Abe Fortas (he later resigned due to ethics problems). It's not as true in the case of Robert Bork. Bork was nominated to SCOTUS in 1987 by Ronald Reagan. We don't have to theorize why Bork was rejected; Ted Kennedy's speech on the Senate floor enumerated many of his party's objections

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, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens for whom the judiciary is--and is often the only--protector of the individual rights that are the heart of our democracy. [...] The damage that President Reagan will do through this nomination, if it is not rejected by the Senate, could live on far beyond the end of his presidential term. President Reagan is still our president. But he should not be able to reach out from the muck of Irangate, reach into the muck of Watergate and impose his reactionary vision of the Constitution on the Supreme Court and the next generation of Americans. No justice would be better than this injustice.

A significant number of Kennedy's objections were politically aimed at Bork's political positions. Bork opposed Roe and abortion. After Bork's defeat, Reagan nominated the more moderate Anthony Kennedy (no relation to Sen. Kennedy). Kennedy would go on to help write the controversial Casey decision, which upheld Roe v Wade.

It's worth noting that Roe has played an outsized role up until now. I noted in my answer here that, except for the aforementioned Kennedy, every SCOTUS candidate has been asked about Roe. While there may be higher minded arguments here and there, it's not much of a secret that's why Bork and Merrick Garland never made it to the high court. And it's a gripe Democrats have with the 6 justices who struck down Roe, with at least one member of the House implying they "lied" under oath and should be impeached.

SCOTUS can act as it pleases with virtual political impunity. Both parties have sought to wield that power through judicial appointments.

Why would the Senate not confirm a SCOTUS nominee?

4 Answers4