THE FORTAS NOMINATION
A Fortas-Thornberry package would be in real trouble.
— Senator Russell B. Long
I did not anticipate there would be any opposition.
— President Lyndon Baines Johnson
THE KEY ROLE played by ideology in the Senate's refusals to confirm Fortas, Haynsworth, and Carswell, and the contributing role of timing in the case of Fortas, raise the question of whether these two factors have been influential in previous unsuccessful nominations. Had ideology and timing been consistently significant in past unsuccessful nominations, their presence in the three more recent refusals to confirm might denote the continuation of a revealing pattern and point toward a common framework for analyzing previous unsuccessful nominations and the Senate's seeming rediscovery of its power of advice and consent in the post-1968 period.
Of the 139 nominations made to the Supreme Court through 1986, only twenty-four, approximately seventeen percent, failed to gain confirmation by the Senate. (See appendix 1.) 1 The rate at which the Senate has refused confirmation increases sharply, however, when the nominations have been made amid two conditions which would appear to enhance opposition stemming from considerations of ideology and timing. These two key conditions are (1) that a majority of the senators considering the nomination did not share the same party affiliation as the president, and (2) the nomination was forwarded to the Senate in the last full year of a president's term or in what is commonly referred to