Almost (Really) Famous: 9 Former Supreme Court Candidates
By Scott Allen
If she's confirmed, Solicitor General Elena Kagan would become the fourth woman to sit on the Supreme Court. If not, at least she'll earn a spot on a future version of this list—candidates who were almost appointed to the highest court in the land.
1. Dallin H. Oaks
After suffering a debilitating stroke, William O. Douglas reluctantly retired from the Supreme Court in 1975. Douglas, who was in office for 36 years, was determined to outlast Gerald Ford's presidential term after Ford had unsuccessfully attempted to impeach Douglas while serving as House Minority Leader five years earlier. While Ford selected Seventh Circuit judge John Paul Stevens to replace Douglas, he considered several other candidates, including Brigham Young University president Dallin H. Oaks.
Six years later, while serving as a Utah Supreme Court Justice, Oaks was a candidate for the Supreme Court vacancy that Sandra Day O'Connor eventually filled. In 1984, Oaks retired from the Utah Supreme Court to pursue a higher calling and was ordained a member of the Quorum of the Twelve Apostles of the Church of Jesus Christ of Latter-day Saints. Today, Oaks is the fifth most senior apostle among the ranks of the LDS church.
2. Robert H. Bork
Ronald Reagan elevated William Rehnquist to Chief Justice following Warren Burger's retirement in 1986 and considered two judges—Robert Bork and Antonin Scalia—to fill the Associate Justice vacancy created by Rehnquist's promotion. While Reagan chose the younger Scalia this time, he would nominate Bork to fill the vacancy left by Lewis Powell, who retired one year later. Democrats had threatened to put up a fight if Reagan nominated a conservative to replace the moderate Powell and Bork, a judge for the United States Court of Appeals for the District of Columbia, was an easy target. He had close ties to Richard Nixon, having fired Watergate Special Prosecutor Archibald Cox at Nixon's request while serving as United States Solicitor General in 1973. Shortly after Bork was nominated, Sen. Ted Kennedy condemned him during a nationally televised speech. "Bork's rigid ideology will tip the scales of justice against the kind of country America is and ought to be," Kennedy said. While many Democrats would admit that Kennedy's criticism of Bork was over the top, the damage had been done. The Senate rejected Bork's confirmation, 58-42.
After Bork was rejected, Reagan planned to nominate Douglas Ginsburg, but Ginsburg withdrew his name from consideration after it was revealed that he had smoked marijuana with his students while he was a professor at Harvard Law School. Reagan ultimately chose Ninth Circuit judge Anthony Kennedy.
3. Edith H. Jones
After a stroke led William Brennan to announce his retirement in 1990, George H.W. Bush moved quickly to nominate a replacement. John Sununu, the White House chief of staff, helped Bush narrow a list of about a dozen candidates down to two: First Circuit judge David Souter and Fifth Circuit judge Edith H. Jones. Less than a week after the news broke that Brennan was stepping down, Bush nominated Souter. "Reading between the lines, and that's all it is, maybe we're talking about a sequence here," Sununu said of Jones after the decision was announced. "Maybe she is the choice the next time we have a vacancy on the Court. There are no sure things, and times and conditions can change, but the President was impressed." Jones, who was later considered for a Supreme Court vacancy by George W. Bush, is currently the Chief Judge of the Court of Appeals for the Fifth Circuit.
4. Emilio M. Garza
Like William O. Douglas, liberal Thurgood Marshall, the first African-American to serve on the Supreme Court, had no plans of leaving the bench while a conservative was in office. But Marshall was becoming increasingly ill and announced his retirement in 1991, two years before he died of a heart failure, while George H.W. Bush was in the White House. A number of candidates were reportedly considered for the vacancy, including Solicitor General Kenneth Starr, Clarence Thomas, and Garza, who was a recently appointed Fifth Circuit judge. Due to concerns over Garza's inexperience—he had only been on the Fifth Circuit for a few weeks—and a desire to replace Marshall with a black conservative, Bush chose Thomas.
5. Mario Cuomo
Byron White, who was an All-American running back at Colorado before attending Yale and being appointed to the Supreme Court in 1962, retired from office in 1993. Bill Clinton wanted to offer the position to New York Governor Mario Cuomo, the only person he mentioned as a potential replacement during his 1992 campaign. While he initially seemed open to the idea, Cuomo later sent a letter to Clinton indicating that he was not interested in the position. "I do not know whether you might indeed have nominated me, but because there has been public speculation concerning the possibility, I think I owe it to you to make clear now that I do not wish to be considered," Cuomo wrote. After Cuomo declined, Clinton considered several other candidates, including Sen. George J. Mitchell and Secretary of the Interior Bruce Babbitt, before ultimately nominating Columbia law professor and judge for the Court of Appeals for the D.C. Circuit Ruth Bader Ginsburg.
6. Richard Arnold
Harry Blackmun announced his retirement in 1994 and Clinton was prepared to offer the nomination to Mitchell, who had turned down the offer the previous year to remain in the Senate. Clinton also considered Eighth Circuit judge Richard S. Arnold, a fellow Arkansas native, but he had reservations about Arnold's health. Arnold had been diagnosed with low-grade non-Hodgkin's lymphoma nearly 20 years earlier. Clinton eventually chose First Circuit judge Stephen Breyer, who had interviewed with Clinton for the vacancy left by White in 1993, but failed to impress, perhaps as a result of the pain he was in after being hit by a car while biking a few days earlier. Arnold died from an infection related to his treatment in 2004.
7. Edith Brown Clement
When Sandra Day O'Connor announced her plans to retire in 2005, it left George W. Bush with his first opportunity after more than four years in office to nominate a member of the Supreme Court. First Lady Laura Bush suggested that a woman should replace O'Connor and two female judges from the U.S. Court of Appeals—Edith Brown Clement and Edith Jones (see #3)—were reportedly among the leading candidates. Clement soon emerged as the rumored choice, but after ABC News published a story on its website that Clement was not Bush's pick, the attention turned to the candidate who had become known as the "Other Edith." Bush, of course, selected John G. Roberts, a judge on the D.C. Circuit Court of Appeals, instead. Clement continues to serve as a Fifth Circuit judge.
8. Harriet Miers
When Chief Justice William H. Rehnquist died in September 2005, Roberts's confirmation was still pending. Bush withdrew and then resubmitted Roberts's nomination, this time for Chief Justice, leaving O'Connor's seat vacant once again. Bush nominated a woman, his close friend Harriet Miers, but the choice sparked unprecedented criticism from both parties. Robert Bork called the nomination "a disaster on every level." Miers, the White House Counsel who had previously served as Bush's private attorney, lacked judicial experience and her position on key issues was largely unknown. Facing heated criticism, Bush eventually accepted Miers's request to withdraw her nomination and chose Third Circuit judge Samuel Alito as O'Connor's replacement.
9. Janet Napolitano
The short list of Barack Obama's candidates to replace David Souter when Souter announced his plans to retire at the end of the Supreme Court's term in 2009 included Seventh Circuit judge Pamela Wood, future nominee Kagan, and the eventual nominee, Second Circuit judge Sonia Sotomayor. Homeland Security Secretary Janet Napolitano was also among the candidates who met with Obama and Vice President Joe Biden before a decision was made. Had Napolitano been nominated and confirmed, she would have served alongside Clarence Thomas. In 1991, Napolitano represented Anita Hill, who had accused Thomas of sexual harassment, during the Senate Judiciary Committee's hearing on the matter.