Selection of Justices

The selection of Supreme Court justices is of enormous importance since the behavior of the Court, a relatively unconstrained institution, largely reflects its membership. Judicial selection is a political process with few formal requirements. The Constitution (Art. II) simply states that the president “shall nominate … and with the Advice and Consent of the Senate … appoint … judges of the Supreme Court.” The process of presidential nomination, senatorial confirmation, and presidential appointment does not even include the formal requirement that the nominee be a lawyer, although surely no contemporary president would nominate nor Senate confirm someone lacking legal training.

Creating a judicial selection process was a major concern at the Constitutional Convention. Early proposals sought either Senate appointment or joint House‐Senate action. The Federalists, however, wanted the national perspective of a strong executive role. Late during the Convention, a compromise was reached. The executive and legislative branch would play selection roles, and tenure during good behavior would insulate justices from political pressures.

While Article II, the Constitution's “presidential power” blueprint, set the terms for judicial selection, the framers never clarified the exact meaning of “advice and consent,” and periodic efforts to amend the Constitution suggested including the House of Representatives in the process or electoral selection. If Alexander Hamilton and the Federalists thought they had won a process with a perfunctory Senate approval role, that has certainly not transpired. Historically, about 20 percent of Supreme Court nominees have not been confirmed, with rejection rates running disproportionately high during the nineteenth century and the last four decades of the twentieth. Prior to the withdrawal of Abe Fortas, Lyndon Johnson's nominee to the chief justiceship in 1968, the only rejected twentieth‐century nomination was that of John Parker in 1930. Since Fortas, two of Richard Nixon's nominees (Clement Haynsworth in 1969 and G. Harrold Carswell in 1970) were defeated. The Senate in 1987 also rejected Ronald Reagan's nomination of Robert Bork in one of the most contentious judicial selection battles in American history. Reagan's subsequent candidate, Douglas Ginsburg, withdrew from consideration before his formal nomination.

Vacancies on the Court march to the tune of an irregular drummer. None, for example, occurred during Franklin Roosevelt's first term, yet FDR enjoyed five appointments during his second term. Richard Nixon was able to reshape the liberal Warren Court toward his own more conservative image with four appointments during his first term. Gerald Ford had the opportunity to appoint a Supreme Court justice despite his short tenure. Jimmy Carter, on the other hand, was the first president in more than a century not to have the opportunity to appoint a justice. Subsequent to the Carter presidency, Ronald Reagan filled four vacancies in his two terms, the first President Bush filled two vacancies in one term, and Bill Clinton filled two vacancies in his two terms in office. Stephen Breyer was appointed to the last Supreme Court vacancy in 1994; by early 2005 speculation ran high about the immediate prospects for at least one and, perhaps, as many as four vacancies in the not too distant future.

Actors in the Selection of Justices

The president is the only individual constitutionally empowered to nominate a justice, yet he must consult widely. Supreme Court nominees are more likely to be known personally by the president and to be his own choice than are nominees to the lower federal courts. Nevertheless, presidents will rely heavily on Justice Department personnel (particularly the attorney general) and White House staff members for assistance in generating candidates and choosing among them. Occasionally, such “assistance” makes the president's decision more difficult. Thus, in the wake of Reagan's Bork defeat, White House staff members desired a more moderate nominee while hard‐line Justice Department conservatives continued seeking an ideological appointment.

In addition to advice from within their own administrations, presidents are inundated with unsolicited suggestions from interested groups and individuals. Prospective nominees may pursue their own candidacy, and sitting justices may attempt to influence nominations. Thus, for example, Justice Harlan Stone actively supported the choice of Benjamin Cardozo, even offering to resign to facilitate his fellow New Yorker's chances. As chief justice, William Howard Taft attempted to influence several appointments, and Warren Burger acted on behalf of nominees Haynsworth, Carswell, and Bork as well as Justices Harry Blackmun and Sandra Day O'Connor.

Supreme Court appointments are national in scope and of critical importance. Consequently, all senators believe they have a watchdog role to play. Controversy exists over what criteria are appropriate in exercising advice and consent: whether senators must limit their assessment only to the ethics and professional competence of a nominee or, alternatively, whether ideological and/or philosophical considerations are more important. Bork's defeat clearly suggests that senators may consider any factors during confirmation that the president considered in making a nomination.

Another important actor in the selection of justices is the American Bar Association Standing Committee on Federal Judiciary. The committee rates Supreme Court candidates “well qualified,” “qualified,” or “not qualified.” A unanimous finding of “well qualified” such as, for example, earned by Ruth Bader Ginsburg and Stephen Breyer, clearly facilitates confirmation; a more ambiguous evaluation foreshadows trouble for a nominee. The role of the committee, established in 1946, has varied in different presidential administrations. While, historically, it has had the most influence in Republican administrations, history has changed dramatically in the wake of the ABA evaluations of Robert Bork, which included four “not qualified” votes, and Clarence Thomas, whom two members of the ABA Committee found to be “not qualified.” The administration of George W. Bush decided not to formally consult the ABA Committee on its lower court nominations, asserting that there was no justification for its favored status in nomination processes. Some have argued, however, that the administration's motivations were more ideologically driven, reflecting a preference for relying on members of groups such as the more conservative “Federalist Society” for assistance in vetting nominees.

Finally, it should be noted, numerous interest groups may be activated to support a nominee or fan the flames of opposition during the confirmation process. In the protracted Senate battle over Robert Bork among those opposing the nomination were the American Civil Liberties Union, the National Association for the Advancement of Colored People (NAACP), National Organization for Women, the AFL‐CIO, Common Cause, and the Sierra Club. Bork's supporters included the American Conservative Union, National Conservative Political Action Committee, the Fraternal Order of Police, and the National Right to Work Committee. While the scope of mobilization over the Bork nomination may have been unprecedented, the tradition of group involvement in the appointment process is a long one. Conservative groups were quite active in the effort to deny a justiceship to Louis Brandeis in 1916. Similarly, labor organizations and the NAACP were critical elements in the Parker, Haynsworth, and Carswell defeats. Clearly, Supreme Court vacancies that emerge in the future will generate aggressive interest group activity across the political spectrum.

Criteria for the Selection of Justices

Numerous criteria operate in the selection process including representational, partisan and political, personal, professional, and ideological concerns. Presidents may utilize vacancies to reward identifiable constituencies. They may seek to balance geographical, religious, ethnic, and, more recently, gender concerns. Geographical balance has always been sought on the Court and, indeed, almost served to disqualify Cardozo from consideration since sitting justices Stone and Charles Evans Hughes were also from New York. Nixon's “southern strategy” was, in large measure, politically motivated and attempted to satisfy elements of his electoral coalition and influential supporter South Carolina Senator Strom Thurmond.

The quest for religious balance has also shaped recruitment. From Louis Brandeis's 1916 appointment through Fortas's 1969 resignation, a Jewish justice sat on the Court; indeed, Justices Benjamin Cardozo, Felix Frankfurter, Arthur Goldberg, and Fortas actually occupied the same “Jewish seat” in succession. Similarly, a Catholic has sat on the Court since 1894 except for the brief period between Frank Murphy's death (1949) and William Brennan's appointment (1956). Lyndon Johnson's appointment of Thurgood Marshall created a “black seat,” continued by George H. W. Bush's nomination of Clarence Thomas to succeed him. Sandra Day O'Connor's historic appointment by President Reagan augurs well for women as, of course, does Ruth Bader Ginsburg's subsequent appointment. Present speculation suggests that new vacancies on the Court may result in the appointment of the first Hispanic justice.

Political and partisan motives often complement representational concerns. Nixon's southern strategy sought representation and votes. Much was to be gained politically by Gerald Ford, after Watergate, through the seemingly nonpolitical appointment of respected moderate John Paul Stevens. President Dwight D. Eisenhower, facing reelection, made a statesmanlike appointment (and bowed to the opposition) choosing Democrat William Brennan. Well over 90 percent of nominees are members of the president's party, while the rare exceptions (such as Nixon's nomination of conservative Democrat Lewis Powell) are readily understood. Personal motivations may also play a role in some nominations. Truman's appointees included close friends Harold Burton, Sherman Minton, Frederick Vinson, and Tom Clark. Kennedy appointed a top campaign aide, Byron White, while Johnson designated his close adviser and confidant Abe Fortas.

The emphasis a president places on partisan and political motivations as well as his reliance on personal relationships suggests the role that ideology may play in recruitment. This does not mean a president expects his nominees to agree with him on each and every case. Rather, a president may be concerned that his nominees share his broad views about the nature and meaning of American constitutionalism and the Court's policymaking role. Nixon sought to appoint “strict constructionists,” although some would argue that this was shorthand for seeking nominees with narrow conceptions of personal rights and hard line “law and order” stances. The amount of controversy over a candidate's ideology will be commensurate with how “extreme” their ideological commitment appears to be as well as how pivotal a given vacancy is on the Court. Thus, Antonin Scalia, perhaps even more of a “mainstream” conservative than Robert Bork, was easily confirmed prior to Bork's ill‐fated nomination since Scalia's public persona seemed less ideologically extreme and his seating would not fundamentally alter the Court's ideological balance. All signs indicate that an assessment of a nominee's ideology will dominate the confirmation processes faced by nominees for the foreseeable future.

There is no widespread agreement about what qualities a justice should possess, and attacks on a candidate's credentials may be a smokescreen for ideological opposition. It is axiomatic that a president wishes to appoint well‐qualified and respected justices and, at times, inherent quality may rise above all the factors arrayed against it. Such was the case when Republican President Hoover appointed Cardozo when all of the representational criteria were “wrong.” Cardozo was a Democrat, a Jew (with Jewish Justice Brandeis already on the Court), and a New Yorker (on a Court including New Yorkers Stone and Hughes). Debate over professional qualifications of a nominee reached its nadir when Nebraska Senator Hruska, floor manager for the Carswell nomination, struck a chord for mediocrity by asserting, “Even if he is mediocre there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation aren't they, and a little chance? We can't have all Brandeises, Cardozos and Frankfurters and stuff like that there.”

Another issue that surfaces when considering professional qualifications is whether a justice needs prior judicial experience. Historically, Republican presidents have been most concerned about such experience. Clearly, many renowned justices including Oliver Wendall Holmes, Taft, Cardozo, Burger, and Brennan served on the Court only after lengthy apprenticeships on state or lower federal tribunals. A long list of equally renowned justices lacking prior judicial experience exists as well, including Justices Brandeis, Frankfurter, William O. Douglas, and Powell and Chief Justices John Marshall and Earl Warren.

Looking Ahead

There has been an explicit politicization of the appointment process and a blatant attempt to make ideology a consideration in appointments to the Court by presidents. When FDR sought to alter a Court blocking his New Deal policies he felt compelled to justify court packing as an effort to aid overworked elderly jurists. By 1968, Nixon was openly utilizing judicial vacancies as a campaign issue and in 1972 he boasted about successfully changing the direction of judicial policies. Subsequent presidential campaigns have utilized prospective judicial appointments as an issue.

Presidential actions have corresponded with a public increasingly concerned with the policy views of the Court's members. As the Court continues to focus on issues such as abortion and affirmative action, and as the public continues to see these issues resolved with great divisiveness, concern over appointments will only increase.

Appointment transactions will generally run smoothly when the objective quality of the nominee is clear, ethical problems are not raised, and ideological extremism is not feared. Defeat of a nominee appears to be quite possible, however, when questions of competency are credible (Carswell), ethical considerations are raised (Fortas, Haynsworth, Thomas), or fears of ideological extremism are widespread (Bork). Presidents are generally more successful in gaining confirmation earlier, rather than later in their administrations. Similarly, the partisan makeup of the Senate will affect the president's success rate and appointment discretion with greater presidential freedom when the Senate is controlled by his party.

Bibliography

• Henry J. Abraham, Justices, Presidents and Senators, Revised ed. (1999).
• John A. Maltese, The Selling of Supreme Court Nominees (1995).
• David A. Yalof, Pursuit of Justices (1999)

— Elliot E. Slotnick