A his­tory of nom­i­na­tion train wrecks

Chuck Hagel’s con­fir­ma­tion de­lay? No big deal, says Tom C. Korol­o­gos. Check out some bat­tles that got nasty.

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Each pres­i­dent has about 1,000 jobs to fill in his ad­min­is­tra­tion — Cab­i­net sec­re­taries, am­bas­sadors, Supreme Court jus­tices, and other judges and po­si­tions. Al­most all of those posts re­quire Se­nate con­fir­ma­tion, and most of the time that process is cor­dial and per­func­tory. But some­times it can re­sem­ble two trains col­lid­ing.

The de­lay of former se­na­tor Chuck Hagel’s nom­i­na­tion to be­come de­fense sec­re­tary doesn’t qual­ify as a train wreck yet. But it does make you won­der about what the Se­nate’s and the ad­min­is­tra­tion’s roles should be in the nom­i­na­tion process.

The found­ing fa­thers orig­i­nally in­tended that Congress, not the pres­i­dent, make all nominations. The Con­sti­tu­tion’s “ad­vise and con­sent” pro­vi­sion was a com­pro­mise be­tween those who wanted Congress to do all the ap­point­ing and those who thought it should be the pres­i­dent’s job. We ended up giv­ing the Se­nate only the power to say “yea” or “nay.”

In our young na­tion’s his­tory, there have been 141 Supreme Court nom­i­nees; 27 of them, or 19 per­cent, were re­jected or with­drawn. There have been some 700 Cab­i­net of­fi­cers nom­i­nated, of which 4 per­cent have been re­jected or with­drawn. Here are a few mem­o­rable nominations, from our na­tion’s first to some of its most con­tentious.

1789

The first pres­i­den­tial nom­i­na­tion was Ge­orge Washington’s choice of Wil­liam Short as min­is­ter to the Court of France — es­sen­tially an am­bas­sador. John Jay, who had headed the Of­fice of For­eign Af­fairs un­der the old Congress of the Con­fed­er­a­tion, hand-car­ried the nom­i­na­tion to the Se­nate. Some sen­a­tors wanted Washington to ap­pear be­fore them to de­fend his nom­i­nee. Short was well known, a ca­reer diplo­mat who was Jef­fer­son’s sec­re­tary in France, but the Se­nate, even at that early date, flexed its mus­cles. Washington, to his credit, re­fused. Short was con­firmed by se­cret bal­lot two days later.

1831

When Pres­i­dent An­drew Jack­son nom­i­nated Sen. Martin Van Buren of New York to serve as min­is­ter to Great Bri­tain, his Se­nate col­leagues didn’t take kindly to the choice. Op­po­nents de­scribed Van Buren as a schemer and a master ma­nip­u­la­tor as he waged in­ter­nal war­fare for con­trol of the po­lit­i­cal ma­chine en­com­pass­ing all of New York, the Buck­tails. Many sen­a­tors took um­brage at his meth­ods, which also up­set the cham­ber’s hi­er­ar­chy and Vice Pres­i­dent John C. Cal­houn. When Van Buren’s con­fir­ma­tion vote ended in a tie and Cal­houn was called upon to break it, he voted no.

Jack­son was so an­gry that his vice pres­i­dent had voted down his nom­i­nee that he ended up drop­ping Cal­houn in the next con­ven­tion and chose Van Buren as his vice pres­i­dent. Van Buren, of course, went on to be­come pres­i­dent in 1837.

1843

If you think Hagel has had a tough nom­i­na­tion bat­tle, con­sider Pres­i­dent John Tyler’s nom­i­na­tion of Caleb Cush­ing to be Trea­sury sec­re­tary. In those days, be­cause the pres­i­dent’s term ended at the same time as Congress’s, he would go to Capi­tol Hill on the last days of the ses­sion and sit just off the Se­nate floor to sub­mit nominations, sign bills and work out com­pro­mises with the cham­ber’s lead­er­ship.

When Cush­ing was re­jected by the Se­nate be­cause of po­lit­i­cal in­con­sis­ten­cies, Tyler, sit­ting nearby, submitted Cush­ing’s name again, right on the spot. A sec­ond time, the Se­nate voted down Cush­ing. Yet again Tyler sent his name to the Se­nate. And yet again Cush­ing was re­jected, each time by a larger mar­gin — 27 to 19, 27 to 10 and 29 to 2. The vote to­tal di­min­ished be­cause of the late­ness of the hour; some sen­a­tors sim­ply went home.

The stand­off con­tin­ued that night when Tyler nom­i­nated Henry A. Wise as am­bas­sador to France. He was also re­jected three times, partly to ob­struct Tyler’s aims but also be­cause Wise was a Jack­so­nian Demo­crat who had bro­ken with the party. He had even fought a duel once with his com­peti­tor for a seat in Congress.

The Se­nate ended up turn­ing down four of Tyler’s Cab­i­net nom­i­nees and four of his Supreme Court picks. Cush­ing’s three-time re­jec­tion was the worst one-day loss of Cab­i­net nominations by any pres­i­dent be­fore or since.

1925

Pres­i­dent Calvin Coolidge nom­i­nated Charles War­ren to be at­tor­ney gen­eral right af­ter the Teapot Dome bribery scan­dal and other busi­ness-re­lated wrong­do­ing. War­ren was ac­cused of be­ing as­so­ci­ated with the “Sugar Trust” — the Amer­i­can Sugar Re­fin­ing Com­pany, which owned and con­trolled 98 per­cent of sugar-pro­cess­ing ca­pac­ity in the United States and was ac­cused of un­fair prac­tices. The nom­i­na­tion cre­ated a big fight in the Se­nate, and the vote ended up evenly split. Mean­while, Vice Pres­i­dent Charles G. Dawes had gone to take a nap. He was roused and tried to rush to the Capi­tol to break the tie, but it was too late; one War­ren sup­porter had changed his mind, and the nom­i­na­tion failed.

1968

In mod­ern times, there have been seven Supreme Court nom­i­nees who have been with­drawn or not con­firmed. Robert Bork’s con­fir­ma­tion fight in 1987 was among the fiercest, but one of the first con­tentious bat­tles was over the nom­i­na­tion of Supreme Court Jus­tice Abe For­tas to be­come chief jus­tice. Pres­i­dent Lyn­don B. John­son had per­suaded Jus­tice Arthur Gold­berg to re­sign his seat to be­come am­bas­sador to the United Na­tions so that John­son could ap­point For­tas to the court in 1965. The pres­i­dent thought the court could rule some of his Great So­ci­ety re­forms un­con­sti­tu­tional, and he felt For­tas, a long­time friend, would let him know if the jus­tices were lean­ing that way.

When Chief Jus­tice Earl War­ren re­tired in 1968, John­son nom­i­nated For­tas to re­place him. For­tas was the first sit­ting jus­tice nom­i­nated for chief jus­tice to ap­pear be­fore the Se­nate, where he faced hos­tile ques­tion­ing about his re­la­tion­ship with John­son and was ac­cused of con­sult­ing with the pres­i­dent about po­lit­i­cal mat­ters while he was on the court. The de­bate, short by to­day’s stan­dards, lasted less than a week, fol­lowed by the first fil­i­buster of a Supreme Court nom­i­nee. The fi­nal tally was 45 to 43, far short of the 67 needed for clo­ture. Later that day, For­tas asked John­son to with­draw his name for chief jus­tice, but he re­mained on the court as an as­so­ciate jus­tice.

In the 20th cen­tury, only three Cab­i­net nom­i­nees have been voted down: the afore­men­tioned War­ren; Pres­i­dent Dwight Eisen­hower’s Lewis Strauss for com­merce sec­re­tary in 1959, who af­ter 16 days of hear­ings was re­jected by a vote of 49 to 46; and Sen. John Tower, Pres­i­dent Ge­orge H.W. Bush’s nom­i­nee for de­fense sec­re­tary, who was de­feated on a 53 to 47 vote af­ter five weeks of hear­ings in 1989.

Fierce nom­i­na­tion fights have been go­ing on since the early days of the repub­lic. They not only in­volve Supreme Court nom­i­nees and Cab­i­net of­fi­cers, but also as­sis­tant sec­re­taries, am­bas­sadors, lead­ers of reg­u­la­tory agen­cies and bu­reaus, on down to ad­vi­sory com­mis­sions. The found­ing fa­thers wanted to avoid a monar­chy and in­stead cre­ated anar­chy.

Much-needed leg­is­la­tion to re­form the nom­i­na­tion process passed in the last Congress, cut­ting the num­ber of po­si­tions that re­quire Se­nate con­fir­ma­tion and short­en­ing the vet­ting process. The White House is draft­ing new pro­ce­dures for nom­i­na­tion forms and vet­ting. This is a step in the right di­rec­tion, and the re­vised process hopefully will be sim­pler and smoother. But un­til then, the White House would be wise to make sure Vice Pres­i­dent Bi­den is wide awake in case Hagel’s con­fir­ma­tion comes down to a tie.

Tom C. Korol­o­gos has as­sisted in about 300 con­fir­ma­tions for five pres­i­dents and was the U.S. am­bas­sador to Bel­gium from 2004 to 2007. He is a strate­gic ad­viser at DLA Piper.

LI­BRARY OF CONGRESS

Am­bas­sador nom­i­nee Martin Van Buren was blocked by An­drew Jack­son’s own vice pres­i­dent.

AS­SO­CI­ATED PRESS

Af­ter five weeks of hear­ings in 1989, Sen. John Tower was re­jected for the de­fense sec­re­tary job.

LI­BRARY OF CONGRESS

Abe For­tas’s friend­ship with LBJ helped sink his nom­i­na­tion to be chief jus­tice.

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