At times rejection by inaction has been far more common than rejection by up or down vote. One study of the Senate's exercise of the advice and consent power found that during a twenty year period from 1929-1948, the Senate rejected 15,263 presidential nominations through inaction. In the same period only 84 nominations were rejected by straight up or down votes.13 Such large numbers rejected without a vote are not an aberration. In 1917, roughly 2000 of President Wilson's nominations were blocked through the end of the session due to senatorial unrest over his nomination of his personal physician (Dr. Cary Grayson) to be a Rear Admiral.Rejection by failure to take a final vote has frequently defeated judicial nominations and executive branch nominations. For example, in 1828, the Senate Committee tasked with considering judicial nominations on at least one occasion expressly found that it was within the authority of the Senate to decide that it was “inexpedient to advise and consent to the nomination now” and to therefore take no action, killing the nomination after the Senate adjourned.
Deliberately denying a Supreme Court nominee an up or down vote in the Senate appears to be particularly common. Of 24 nominations to the U.S. Supreme Court whom the Senate did not confirm between 1789 and 2002, 14 (nearly 60%) were defeated through inaction or delay.16 These 14 defeated without an up or down vote represent nearly 10 percent of all the Supreme Court nominations made in our nation’s history.
As one scholar of the Senate wrote in 1938, “The Senate, on its part…has often taken no action upon [a nomination], or, after long delay, has voted to postpone its consideration indefinitely. At least ten nominations to the Supreme Court have been blocked in this way.”
Such was the fate of Andrew Jackson Supreme Court nominee Roger Taney on President Jackson’s first attempt to nominate him. The Senate held up the nomination for six weeks and then voted to indefinitely postpone a final confirmation vote. Reportedly, when President Jackson heard the news, well after midnight, that the Senate had defeated his nominee by inaction he referred to the body as “damned scoundrels.”19 Taney was later renominated and confirmed as Chief Justice.
Other 19th century examples include President John Tyler’s nominations of Judge Edward King and Reuben Walworth to the bench which were blocked in the Senate for over a year until he finally withdrew them. After he submitted two new names for the bench (John Meredith Read and Samuel Nelson), the Senate confirmed Nelson but refused to take final action on Read.
And that's just a sampling.
It is natural, in a balance of powers scheme, for each cog to assert itself over the others. In fact, that is exactly what judicial activism is. Courts acting against the legislature, or the Constitution. The Constitution provides remedies for these abuses, one of them being the public vote of representatives and executive.