THE UNSUCCESSFUL Supreme Court nominations of Robert K. Bork and Douglas Ginsburg in 1987 raise anew the question of why the United States Senate periodically rediscovers its power of advice and consent and refuses to confirm a nominee to the high court. 1 As of October, 1988, the Senate has refused to confirm no fewer than twenty-six of the Supreme Court nominations it has considered, (see appendix 1). 2 While it is widely recognized that in the aggregate approximately one of five Supreme Court nominations will be refused confirmation, the likelihood of a specific nomination's being turned down has been less predictable, in part because the Senate's use of its power of advice and consent has simply not been consistent. For example, from 1789 to 1900, the Senate refused to confirm twenty of eighty-five Supreme Court nominations, generating a denial rate approaching one in four. However, high court nominees in this century have fared far more favorably, with the Senate turning down only six of fifty-seven nominations, a rate just over one in ten. Indeed, writing in 1965 and noting the Senate had refused to confirm only one Supreme Court nominee since 1894, one scholar boldly predicted that future rejections would be unlikely. 3 A short time later, the Senate, beginning in 1968, defied this optimistic forecast by refusing to confirm three nominations to the Court within the span of eighteen hectic months.
This chain of events began when Associate Justice Abe Fortas's nomination to succeed Earl Warren as chief justice of the United States was withdrawn by President Lyndon Baines Johnson on October 4, 1968, shortly after senators favoring confirmation failed to terminate a filibuster designed to block consideration of the nomination. At that time, Johnson also withdrew the nomination of United States Court of Appeals Judge Homer Thornberry, of Texas, whom he had selected to succeed to the vacated associate justice seat upon the anticipated approval of Fortas as chief justice. Johnson stepped down from the presidency in January,