The Rejected: Sketches of the 16 Men Nominated for the Supreme Court but Not Confirmed by the Senate.

• Author: Stein, Jay W.

The tense moments during the process of filling a U.S. Supreme Court justice vacancy raise the question of how and why a given nominee succeeds. Tapping the historical record of the 16 men nominated for the Court but not confirmed by the Senate gives background for some answers. For each of the 16, this book describes the steps leading to nomination, the encounters with Senate confirmation and the national issues at the time.

Most of the voluminous literature on Supreme Court justices is about those who survived the process. As in most competitive areas of society, the "losers" are of little concern. This book, however, offers insights that are of modern concern and much that is of interest about the those rejected and the reasons for selecting others. As varied as the individual backgrounds and the contemporary settings, the reasons range from a clamor against confirming John Rutledge, who was President Washington's nominee in 1795, because of a speech against the Jay Treaty, to the increased voting power of Southern blacks as a deciding factor in the 58-42 Senate vote against Robert Bork, President Reagan's ill-fated nominee in 1987.

The sketches recount the legal education of each nominee. The 19th century pattern was "reading the law" in the office of an attorney or judge. At the turn of the century, law schools emerged, developing the degrees of LL.B. and J.D. The sketches report the voting on each candidate and what happened to him after rejection. They show that in some cases the opposition criticism, such as partiality or bias, proved to be unfounded, and the Supreme Court was deprived of the benefit of outstanding qualifications and loyalties.

Before 1929, the Senate sat in closed sessions to consider Supreme Court nominees, without calling them to appear before its Judiciary Committee. The result is that for most of the nominees there are no official records of committee hearings or the debates in the Senate. Record keeping and reporting comprise a major difference between the 19th and the...