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Ronald Reagan judicial appointment controversies

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During President Ronald Reagan's presidency, he nominated two people for the Supreme Court and at least twelve people for various federal appellate judgeships who were not confirmed. In some cases, the nominations were not processed by the Democratic-controlled Senate Judiciary Committee before Reagan's presidency ended, while in other cases, nominees were rejected by the Senate Judiciary Committee or even blocked by unfriendly members of the Republican Party. Three of the nominees were renominated by Reagan's successor, President George H. W. Bush. Two of the nominees, Ferdinand Francis Fernandez and Guy G. Hurlbutt, were nominated after July 1, 1988, the traditional start date of the unofficial Thurmond Rule during a presidential election year. Eight of the thirteen seats eventually were filled by appointees of President George H. W. Bush.

List of unsuccessful federal judicial nominations

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Reagan made 32 nominations for federal judgeships that were not confirmed by the Senate. Of these, one, Robert Bork, was rejected by the Senate and 9 were withdrawn by Reagan, while the other 22 expired at an adjournment of the Senate, including 16 that were pending at the close of the 100th Congress. Seven of his unsuccessful nominees were subsequently nominated to federal judgeships by other presidents, and all 7 were confirmed.

Nominee Court Nomination
date 		Date of
final action 		Final action Subsequent federal judicial nominations Seat filled by Ref.
Supreme Court
Robert Bork SCOTUS July 7, 1987 October 23, 1987 rejected by the Senate Anthony Kennedy [1]
Courts of appeals
Sherman Unger Fed. Cir. December 15, 1982 November 22, 1983 returned to the president Jean Galloway Bissell [2][3][4]
Paul M. Bator D.C. Cir. August 1, 1984 September 6, 1984 withdrawn by Pres. Reagan Laurence Silberman [5]
Bernard Siegan 9th Cir. February 2, 1987 September 16, 1988 withdrawn by Pres. Reagan Ferdinand Fernandez [6]
Susan Liebeler Fed. Cir. March 23, 1987 October 22, 1988 returned to the president S. Jay Plager [7]
Dave Treen 5th Cir. July 22, 1987 May 10, 1988 withdrawn by Pres. Reagan John M. Duhé Jr. [8]
Stuart A. Summit 2nd Cir. September 23, 1987 October 22, 1988 returned to the president John M. Walker Jr. [9]
Judith Richards Hope D.C. Cir. April 14, 1988 October 22, 1988 returned to the president Clarence Thomas [10]
Pamela Ann Rymer 9th Cir. April 26, 1988 October 22, 1988 returned to the president 9th Cir. (nominated February 28, 1989, confirmed May 18,1989) Herself [11]
Jacques L. Wiener Jr. 5th Cir. June 27, 1988 October 22, 1988 returned to the president 5th Cir. (nominated November 17, 1989, confirmed May 9, 1990) Himself [12]
Guy G. Hurlbutt 9th Cir. August 11, 1988 October 22, 1988 returned to the president Thomas G. Nelson [13]
Ferdinand Fernandez 9th Cir. September 16, 1988 October 22, 1988 returned to the president 9th Cir. (nominated February 28, 1989, confirmed May 18,1989) Himself [14]
District courts
Morton R. Galane D. Nev. July 21, 1983 October 18, 1983 withdrawn by Pres. Reagan Lloyd D. George [15][16]
Albert I. Moon Jr. D. Haw. October 16, 1985 January 2, 1986 returned to the president Alan Cooke Kay [17]
Jeff Sessions S.D. Ala. October 23, 1985 July 31, 1986 withdrawn by Pres. Reagan Alex T. Howard Jr. [18][19]
James Kenneth Porter E.D. Tenn. July 30, 1986 October 18, 1986 returned to the president Robert Leon Jordan [20]
Robert N. Miller D. Colo. February 5, 1987 February 2, 1988 withdrawn by Pres. Reagan Edward Nottingham [21]
Robert Roberto Jr. E.D.N.Y. November 25, 1987 July 26, 1988 withdrawn by Pres. Reagan Arthur Spatt [22]
Vaughn Walker N.D. Cal. December 19, 1987 October 22, 1988 returned to the president N.D. Cal. (nominated February 28, 1989, confirmed November 22, 1989) Himself [23]
Alfred C. Schmutzer Jr. E.D. Tenn. December 19, 1987 March 28, 1988 withdrawn by Pres. Reagan Robert Leon Jordan [24]
Howard E. Levitt E.D.N.Y. December 22, 1987 October 22, 1988 returned to the president Carol Amon [25]
Donald E. Abram D. Colo. February 19, 1988 October 22, 1988 returned to the president Edward Nottingham [26]
Shannon T. Mason Jr. E.D. Va. February 22, 1988 October 22, 1988 returned to the president Rebecca Beach Smith [27]
James R. McGregor W.D. Pa. March 14, 1988 October 22, 1988 returned to the president Donald J. Lee [28]
William H. Erickson D. Colo. March 23, 1988 October 22, 1988 returned to the president Daniel B. Sparr [29]
Robert C. Bonner C.D. Cal. June 15, 1988 October 22, 1988 returned to the president C.D. Cal. (nominated February 28, 1989, confirmed May 18, 1989) Himself [30]
Melinda Harmon S.D. Tex. June 23, 1988 October 22, 1988 returned to the president S.D. Tex. (nominated February 28, 1989, confirmed May 18, 1989) Herself [31]
Marvin J. Garbis D. Md. July 6, 1988 October 22, 1988 returned to the president D. Md. (nominated August 4, 1989, confirmed October 24, 1989) Himself [32]
Article I courts
J. Harlan Stamper Jr. T.C. July 12, 1982 September 23, 1982 withdrawn by Pres. Reagan Charles Clapp [33]
Joseph V. Colaianni Cl. Ct. November 19, 1982 December 27, 1982 returned to the president Loren A. Smith [34]
Robert Charrow Cl. Ct. February 2, 1987 August 10, 1987 returned to the president Randall Ray Rader [35]
Article IV courts
Adriane J. Dudley D.V.I. June 20, 1988 October 22, 1988 returned to the president Thomas K. Moore [36]

Failed nominees

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See also: Robert Bork Supreme Court nomination

Others who were considered for nomination

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In 1981, Reagan strongly and publicly had considered nominating Hallmark Cards attorney Judith Whittaker, who is the daughter-in-law of the late Supreme Court associate justice Charles Evans Whittaker, to a vacancy on the United States Court of Appeals for the Eighth Circuit that had been created by the decision by Floyd Robert Gibson to take senior status. Whittaker, a Republican, was dropped from consideration in December 1982 before being formally nominated, amid grassroots concerns among conservatives about Whittaker’s support of the Equal Rights Amendment and published rumors suggesting that she favored abortion rights.[37][38] Ultimately, the White House nominated John R. Gibson in 1982 to the seat, and he was confirmed by the United States Senate.

In 1982, Reagan strongly and publicly had considered nominating New Orleans lawyer Ben C. Toledano to a seat on the United States Court of Appeals for the Fifth Circuit to replace Robert A. Ainsworth Jr., who had died in 1981. Toledano was recommended for the position by Louisiana’s Republican leadership, including then Governor David C. Treen. However, Toledano’s nomination was opposed by local and state chapters of the National Association for the Advancement of Colored People and a local group of African-American attorneys, who cited Toledano’s involvement in his twenties as an active supporter of racial segregation and his efforts to organize the segregationist States' Rights Party of Louisiana. (A number of prominent Louisiana blacks supported the nomination.) In December 1982, Reagan’s Counsel to the President, Fred Fielding, wrote in a memo that the joint White House-Justice Department working group “has identified Benjamin C. Toledano ... as a well-qualified candidate for nomination to the existing vacancy on the 5th Circuit Court of Appeals. However, we believe the facts described below should be brought to your personal attention before further action occurs on the part of this prospective nominee.” Fielding’s memo described Toledano’s past and the opposition to his nomination by a committee of the American Bar Association. Several days later, the White House informed Toledano that it would not proceed with his nomination, and evidence shows that Reagan himself personally made the decision.[39] Reagan wound up nominating W. Eugene Davis to the seat, and he was confirmed in 1983.[40]

Failed nomination of Jeff Sessions to district court

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In 1986, Reagan nominated Jeff Sessions to be a judge of the U.S. District Court for the Southern District of Alabama.[41] Sessions' nomination was recommended and actively backed by Alabama Republican Senator Jeremiah Denton.[42] A substantial majority of the American Bar Association Standing Committee on the Federal Judiciary, which rates nominees to the federal bench, rated Sessions "qualified", with a minority voting that Sessions was "not qualified".[43]

At Sessions' confirmation hearings before the Senate Judiciary Committee, four Department of Justice lawyers who had worked with Sessions testified that he had made several racist statements. One of those lawyers, J. Gerald Hebert, testified that Sessions had referred to the National Association for the Advancement of Colored People (NAACP) and the American Civil Liberties Union (ACLU) as "un-American" and "Communist-inspired" because they "forced civil rights down the throats of people".[44] Thomas Figures, a black Assistant U.S. Attorney, testified that Sessions said he thought the Ku Klux Klan was "OK until I found out they smoked pot". Sessions later said that the comment was not serious, but apologized for it.[45] Figures also testified that on one occasion, when the Civil Rights Division sent the office instructions to investigate a case that Sessions had tried to close, Figures and Sessions "had a very spirited discussion regarding how the Hodge case should then be handled; in the course of that argument, Mr. Sessions threw the file on a table, and remarked, "I wish I could decline on all of them,"" by which Figures said Sessions meant civil rights cases generally. After becoming Ranking Member of the Judiciary Committee, Sessions was asked in an interview about his civil rights record as a U.S. Attorney. He denied that he had not sufficiently pursued civil rights cases, saying that "when I was [a U.S. Attorney], I signed 10 pleadings attacking segregation or the remnants of segregation, where we as part of the Department of Justice, we sought desegregation remedies."[46] Figures also said that Sessions had called him "boy".[41] He also testified that Sessions "admonished me to 'be careful what you say to white folks.'"[47] Sessions was also reported to have called a white civil rights attorney a "disgrace to his race".[48]

Sessions responded to the testimony by denying the allegations, saying his remarks were taken out of context or meant in jest, and also stating that groups could be considered un-American when "they involve themselves in un-American positions" on foreign policy. Sessions said during testimony that he considered the Klan to be "a force for hatred and bigotry". In regards to the marijuana quote, Sessions said the comment was a joke but apologized.[45]

In response to a question from Joe Biden on whether he had called the NAACP and other civil rights organizations "un-American", Sessions replied "I'm often loose with my tongue. I may have said something about the NAACP being un-American or Communist, but I meant no harm by it."[43]

On June 5, 1986, the committee voted 10—8 against recommending the nomination, with Republican Senators Charles Mathias of Maryland and Arlen Specter of Pennsylvania voting with the Democrats. It then split 9—9 on a vote to send Sessions' nomination to the Senate floor with no recommendation, this time with Specter in support. A majority was required for the nomination to proceed.[49] The pivotal votes against Sessions came from his home state's Democratic Senator Howell Heflin. Although Heflin had previously backed Sessions, he began to oppose Sessions after hearing testimony, concluding that there were "reasonable doubts" over Sessions' ability to be fair and impartial. The nomination was withdrawn on July 31, 1986.[43] Sessions became only the second nominee to the federal judiciary in 48 years whose nomination was killed by the Senate Judiciary Committee.[45] The seat would be filled by another Reagan nominee Alex T. Howard Jr.

Sessions was later elected to the U.S. Senate in 1996, and re-elected in 2002, 2008 and 2014, and in November 2016 became President Donald Trump's nominee for Attorney General.

See also

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References

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  1. ^ "PN487 — Robert H. Bork — The Judiciary". Congress.gov.
  2. ^ "PN1552 — Sherman E. Unger — The Judiciary". Congress.gov.
  3. ^ "PN218 — Sherman E. Unger — The Judiciary". Congress.gov.
  4. ^ "PN462 — Sherman E. Unger — The Judiciary". Congress.gov.
  5. ^ "PN1036 — Paul M. Bator — The Judiciary". Congress.gov.
  6. ^ "PN101 — Bernard H. Siegan — The Judiciary". Congress.gov.
  7. ^ "PN200 — Susan Wittenberg Liebeler — The Judiciary". Congress.gov.
  8. ^ "PN514 — David C. Treen — The Judiciary". Congress.gov.
  9. ^ "PN625 — Stuart A. Summit — The Judiciary". Congress.gov.
  10. ^ "PN995 — Judith Richards Hope — The Judiciary". Congress.gov.
  11. ^ "PN1026 — Pamela Ann Rymer — The Judiciary". Congress.gov.
  12. ^ "PN1208 — Jacques L. Wiener Jr. — The Judiciary". Congress.gov.
  13. ^ "PN1317 — Guy G. Hurlbutt — The Judiciary". Congress.gov.
  14. ^ "PN1361 — Ferdinand F. Fernandez — The Judiciary". Congress.gov.
  15. ^ "PN380 — Morton R. Galane — The Judiciary". Congress.gov.
  16. ^ "PN463 — Morton R. Galane — The Judiciary". Congress.gov.
  17. ^ "PN662 — Albert I. Moon Jr. — The Judiciary". Congress.gov.
  18. ^ "PN682 — Jefferson B. Sessions III — The Judiciary". Congress.gov.
  19. ^ "PN876-2 — Jefferson B. Sessions III — The Judiciary". Congress.gov.
  20. ^ "PN1269 — James Kenneth Porter — The Judiciary". Congress.gov.
  21. ^ "PN119 — Robert N. Miller — The Judiciary". Congress.gov.
  22. ^ "PN705 — Robert Roberto Jr. — The Judiciary". Congress.gov.
  23. ^ "PN774 — Vaughn R. Walker — The Judiciary". Congress.gov.
  24. ^ "PN778 — Alfred C. Schmutzer Jr. — The Judiciary". Congress.gov.
  25. ^ "PN786 — Howard E. Levitt — The Judiciary". Congress.gov.
  26. ^ "PN863 — Donald E. Abram — The Judiciary". Congress.gov.
  27. ^ "PN867 — Shannon T. Mason Jr. — The Judiciary". Congress.gov.
  28. ^ "PN886 — James R. McGregor — The Judiciary". Congress.gov.
  29. ^ "PN934 — William H. Erickson — The Judiciary". Congress.gov.
  30. ^ "PN1168 — Robert C. Bonner — The Judiciary". Congress.gov.
  31. ^ "PN1195 — Melinda Harmon — The Judiciary". Congress.gov.
  32. ^ "PN1211 — Marvin J. Garbis — The Judiciary". Congress.gov.
  33. ^ "PN1259-3 — James Harlan Stamper Jr. — The Judiciary". Congress.gov.
  34. ^ "PN1492 — Joseph V. Colaianni — The Judiciary". Congress.gov.
  35. ^ "PN95 — Robert P. Charrow — The Judiciary". Congress.gov.
  36. ^ "PN1175 — Adriane J. Dudley — The Judiciary". Congress.gov.
  37. ^ "Woman Off List For Judgeship". The New York Times. December 24, 1981. Retrieved May 22, 2010.
  38. ^ Bowen, Ezra (April 18, 2005). "Law: Judges with Their Minds Right". Time. Archived from the original on October 26, 2012. Retrieved May 22, 2010.
  39. ^ Goldman, Sheldon (1997). Picking Federal Judges. Yale University Press. pp. 295–296. ISBN 0-300-06962-6.
  40. ^ "Judges of the United States Courts". www.fjc.gov. Archived from the original on 2003-08-02.
  41. ^ a b Wildman, Sarah (May 5, 2009). "Jeff Sessions's chequered past". The Guardian.
  42. ^ Glen Elsasser (March 29, 1986). "Judicial Nomination In Deep Trouble". Chicago Tribune.
  43. ^ a b c Goldman, Sheldon (1999). Picking Federal Judges. Yale University Press. p. 309. ISBN 9780300080735.
  44. ^ Wildman, Sarah (December 30, 2002). "Closed Sessions. The senator who's worse than Lott". The New Republic. Retrieved August 4, 2009.
  45. ^ a b c Rudin, Ken; National Public Radio (May 5, 2009). "Blog: Specter Helped Defeat Sessions In 1986 Judiciary Vote". Political Junkie. NPR. Retrieved August 4, 2009. (blog)
  46. ^ "Q&A Jeff Sessions: Sessions Says He's Looking For Judicial Restraint". National Journal. Insider Interviews. May 7, 2009. Archived from the original on May 15, 2009. Retrieved November 16, 2016.
  47. ^ "Sessions Subordinate: I Thought I'd Be Fired If I Objected To Being Called 'Boy'", Talking Points Memo, May 7, 2009.
  48. ^ Lamothe, Dan (November 9, 2016). "Sen. Jeff Sessions is known for fighting immigration. Now he could lead Trump's Pentagon". Washington Post.
  49. ^ Williams, Lena (June 6, 1986). "Senate Panel Hands Reagan First Defeat On Nominee for Judgeship". The New York Times. Retrieved January 2, 2014.
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