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Throughout much of the history of the republic, the Senate has closely guarded its constitutional duty to consent to the president’s nominees, although in the end it nearly always confirms them. Still, the Senate does occasionally hold up a nominee. Benjamin Fishbourn, President George Washington’s nomination for a minor naval post, was rejected largely because he had insulted a particular senator.
Mark J. Rozell, William D. Pederson, Frank J. Williams. 2000.
George Washington and the Origins of the American Presidency . Portsmouth, NH: Greenwood Publishing Group, 17. Other rejected nominees included Clement Haynsworth and G. Harrold Carswell, nominated for the U.S. Supreme Court by President Nixon; Theodore Sorensen, nominated by President Carter for director of the Central Intelligence Agency; and John Tower, discussed earlier. At other times, the Senate has used its power to rigorously scrutinize the president’s nominees (
[link] ). Supreme Court nominee Clarence Thomas, who faced numerous sexual harassment charges from former employees, was forced to sit through repeated questioning of his character and past behavior during Senate hearings, something he referred to as “a high-tech lynching for uppity blacks.”
“Hearing of the Senate Judiciary Committee on the Nomination of Clarence Thomas to the Supreme Court,” Electronic Text Center, University of Virginia Library, 11 October 1991.
More recently, the Senate has attempted a new strategy, refusing to hold hearings at all, a strategy of defeat that scholars have referred to as “malign neglect.”
Jon R. Bond, Richard Fleisher, and Glen S. Krutz. 2009. “Malign Neglect: Evidence That Delay Has Become the Primary Method of Defeating Presidential Appointments”
Congress&the Presidency 36, No. 3: 226–243. Despite the fact that one-third of U.S. presidents have appointed a Supreme Court justice in an election year, when Associate Justice Antonin
Scalia died unexpectedly in early 2016, Senate majority leader Mitch
McConnell declared that the Senate would not hold hearings on a nominee until after the upcoming presidential election.
Barbara Perry, “One-third of all U.S. presidents appointed a Supreme Court justice in an election year,”
Washington Post , 29 February 2016, https://www.washingtonpost.com/news/monkey-cage/wp/2016/02/29/one-third-of-all-u-s-presidents-appointed-a-supreme-court-justice-in-an-election-year/. McConnell remained adamant even after President Barack Obama, saying he was acting in fulfillment of his constitutional duty, nominated Merrick
Garland , longtime chief judge of the federal Circuit Court of Appeals for the DC Circuit. Garland is highly respected by senators from both parties and won confirmation to his DC circuit position by a 76–23 vote in the Senate. When Republican Donald Trump was elected president in the fall, this strategy appeared to pay off. The Republican Senate and Judiciary Committee will welcome a Trump nominee in early 2017.
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