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8 nominees who didn't go to the Supreme Court

By David Holzel, Mental Floss
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STORY HIGHLIGHTS
  • Ebenezer Hoar got a thumbs down after blocking a well-trod route for patronage
  • Wheeler Peckham and William B. Hornblower rejected through home state courtesy
  • Newspaper claimed Alexander Wolcott's nomination degraded the country
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(Mental Floss) -- If she's confirmed, Solicitor General Elena Kagan would become the fourth woman to sit on the Supreme Court. If not, at least she'll earn a spot on a future version of this list -- nominees who didn't make it to the bench, at least on their first try.

1. Robert Bork

In our time, the most famous rejected nominee is Robert H. Bork, a legal scholar and U.S. Court of Appeals judge with a long paper trail of conservative opinions. Nominated by President Ronald Reagan in 1987, Bork could have tilted the Court decisively to the right. As a known quantity, he was an easy target for liberal opponents, who organized a campaign against him. He was rejected by the Senate Judiciary Committee after 12 days of hearings.

2. Alexander Wolcott

"Oh degraded Country! How humiliating to the friends of moral virtue -- of religion and of all that is dear to the lover of his Country!" the New-York Gazette Advertiser wailed in 1811 over President James Madison's nomination of customs inspector Alexander Wolcott.

Wolcott's strong enforcement of the controversial embargoes against Great Britain and France cost him support in the Senate and in the press. The Senate turned him down by a 9-24 vote, the widest rejection in Supreme Court history.

3. Roger Taney

Roger B. Taney (pronounced tawny) is largely remembered as the chief justice who handed down the Dred Scott decision in 1857. With his sepulchral countenance, Taney is inextricably linked to the grim ruling that all blacks -- slaves as well as free -- were not and could never become citizens of the United States. Mental Floss: Are Tomatoes Fruits or Vegetables? The Supreme Court Weighs In

But when President Andrew Jackson nominated him in 1835 as associate justice, opposition Whigs were still smarting from Taney's removal of government deposits from the Second Bank of the United States while he was a recess-appointed Secretary of the Treasury. The Senate voted to indefinitely postpone the nomination.

However, after Chief Justice John Marshall died in 1836, Jackson sent Taney's name up again. He was confirmed, this time as chief justice.

4. Ebenezer Hoar

You might think the Senate just couldn't stomach elevating to the highest court in the land a man with the name Ebenezer Hoar, but it seems the senators were offended by something other than aesthetics.

As President Ulysses S. Grant's attorney general, Hoar had insisted on rewarding merit rather than political loyalty, thus blocking a well-trod route for patronage. So when Grant nominated Hoar to the Court in 1869, miffed Republican senators gave the virtuous Hoar thumbs down. Mental Floss: What was Marbury v. Madison? Who were Roe and Wade?

5. and 6. Wheeler Hazard Peckham and William B. Hornblower

A senator has the right to reject a court nomination simply because the nominee is from the senator's home state. Upon this invocation of "senatorial courtesy" rests the demise of Wheeler Hazard Peckham and William B. Hornblower.

Both men were nominated by President Grover Cleveland. Both nominees were New Yorkers, and New York Sen. David Hill invoked senatorial courtesy to squelch their nominations in 1894. (Peckham's brother, Rufus Wheeler Peckham, became a justice in 1896.)

7. Harriet Miers

Some nominees withdrew themselves from consideration before they could be rejected. Such was the case of Harriet Miers, whom President George W. Bush nominated in 2005, but withdrew under criticism that she was unqualified. Mental Floss: Why there's a Mohammed statue at the Supreme Court?

8. Douglas Ginsburg

Another withdrawal was that of Douglas Ginsburg (not related to current justice Ruth Bader Ginsburg), the conservative, former pot-smoking federal appellate judge who is a footnote in the Bork saga.

After Bork was Borked, Reagan eyed the more moderate Anthony Kennedy for the seat. But Sen. Jesse Helms (R-N.C.) threatened a filibuster. So Reagan turned right again and proposed Ginsburg. But there was no getting around the revelation that Ginsburg had inhaled. Ginsburg withdrew himself from consideration, Reagan put forward Kennedy and the Senate, eager to move on, easily confirmed him.

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