Opposition to the President
Opposition to the nominating President played a role in at least 16 of the 36 nominations that were not confirmed. Many of the 16 were put forward by a President in the last year of his presidency—seven occurred after a successor President had been elected, but before the transfer of power to the new administration. Each of these "lame duck" nominations transpired under 19th century Presidents when the post-election period lasted from early November until early March. Four one-term Presidents made nominations of this kind. President John Quincy Adams nominated John J. Crittenden in December 1828, after losing the election to Andrew Jackson.17 President Tyler's third nomination of Walworth, second nomination of King, and only nomination of Read all came after Tyler had lost to James Polk.18 President Millard Fillmore nominated George E. Badger and William C. Micou after Franklin Pierce had been elected to replace him.19 Finally, President James Buchanan forwarded the name of Jeremiah S. Black to the Senate less than a month before Abraham Lincoln's inauguration.20 Other nominations where opposition to the President was a major factor include the remaining unsuccessful Tyler nominations, Fillmore's nomination of Edward A. Bradford, and Andrew Johnson's nomination of Henry Stanbery.21
President Lyndon B. Johnson's two unsuccessful nominations (Fortas and Thornberry) occurred during the last seven months of his presidency, when, having announced he was not seeking re-election, he was considered by some to be a lame duck even before the election of his successor. Nineteen Senators issued a statement indicating that, on this basis, they would oppose any nomination by President Johnson.22 The committee report accompanying the nomination of Abe Fortas to be Chief Justice, however, suggests that the opposition to Justice Fortas was based, to a considerable extent, on concern about money received by Fortas for delivering university lectures while an Associate Justice, Fortas's close relationship and advisory role with President Johnson while an Associate Justice, and his judicial philosophy.23
President Rutherford B. Hayes nominated Stanley Matthews in late January 1881, about six weeks before the transfer of power to the Garfield administration. In this case, however, the opposition seems to have centered on the nominee and his views, as discussed below, rather than on the nominating President.