Congress is readying itself for a partisan confirmation fight over President Donald Trump’s nomination of Judge Brett Kavanaugh to replace retiring Justice Anthony Kennedy on the U.S. Supreme Court. But since the court’s inception in 1789, only 37 of its 163 nominees have not made it through the confirmation process. The odds don’t favor those opposed to Kavanaugh’s appointment. And to make the margins even slimmer, a large portion of the unsuccessful nominations were tied to just a few presidents.
University of Colorado Law School professor Richard Collins, who teaches constitutional law, said not all the instances of unsuccessful nominations lend themselves to statistical analysis, such as those when an individual was nominated and confirmed but then declined to serve, which has not happened since 1882. In the early days of the court, he said, factors such as difficulty of transportation or health problems made a nominee’s refusal innocuous.
One of the notable clusters of rejections, he said, belongs to President John Tyler. He had the task of filling seats left vacant by Justices Smith Thompson and Henry Baldwin, and nominated nine people only to fill Thompson’s seat with Samuel Nelson. Baldwin’s replacement, Justice Robert Grier, was confirmed under President James Polk.