During President Ronald Reagan's presidency, he nominated at least twelve people for various federal appellate judgeship 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 twelve seats eventually were filled by appointees of President George H. W. Bush.
Contents
List of failed nominees
Others who were considered for nomination
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. 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 Andrew 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. (It should also be noted, however, that 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. Reagan wound up nominating W. Eugene Davis to the seat, and he was confirmed in 1983.
Failed nomination of Jeff Sessions to district court
In 1986, Reagan nominated Jeff Sessions to be a judge of the U.S. District Court for the Southern District of Alabama. Sessions's judicial nomination was recommended and actively backed by Republican Alabama Senator Jeremiah Denton. 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."
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." 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 did apologize for it. Figures also testified that on one occasion, when the U.S. Department of Justice 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." Figures also said that Sessions had called him "boy." He also testified that "Mr. Sessions admonished me to 'be careful what you say to white folks.'" Sessions was also reported to have called a white civil rights attorney a "disgrace to his race."
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.
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."
On June 5, 1986, the Committee voted 10–8 against recommending the nomination to the Senate floor, 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. The pivotal votes against Sessions came from his home state's Democratic Senator Howell Heflin of Alabama. 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. Sessions became only the second nominee to the federal judiciary in 48 years whose nomination was killed by the Senate Judiciary Committee.
Sessions was later elected to the U.S. Senate in 1996, and re-elected in 2002, 2008 and 2012, and in November 2016 became President-elect Donald Trump's nominee for U.S. Attorney-General.