Appointment of Supreme Court Justices

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APPOINTMENT OF SUPREME COURT JUSTICES

Under Article II, section 2, of the Constitution, Supreme Court Justices, like all other federal judges, are nominated and, with the advice and consent of the senate, appointed by the President. No other textual mandate, either procedural or substantive, governs the Chief Executive's selection. However, section 1 of Article III—which deals exclusively with the judicial branch of the government—provides good behavior tenure for all federal judges; in effect, that means appointment for life. As additional security, that provision of the Constitution provides that the compensation of federal judges "shall not be diminished during their Continuance in Office." But neither the Constitution nor any federal statute provides any clue as to qualifications for office; neither a law degree nor any other proof of professional capability is formally required. But in practice none other than lawyers are appointable to the federal judiciary, in general, and the Supreme Court, in particular. All of the 102 individuals who sat on that highest tribunal through 1985 held degrees from a school of law or had been admitted to the bar via examination. Indeed, although all the Justices were members of the professional bar in good standing at the time of their appointment, it was not until 1922 that a majority of sitting Justices was composed of law school graduates, and not until 1957 that every Justice was a law school graduate. Once confirmed by the Senate, a Justice is removable only via impeachment (by simple majority vote by the house of representatives) and subsequent conviction (by two-thirds vote of the Senate, there being a quorum on the floor). Only one Justice of the Supreme Court has been impeached by the House—Justice samuel chase, bya72–32 vote in 1804—but he was acquitted on all eight charges by the Senate in 1805. To all intents and purposes, once appointed, a Supreme Court Justice serves as long as he or she wishes—typically until illness or death intervenes.

Theoretically, the President has carte blanche in selecting his nominees to the Court. In practice, three facts of political life inform and limit his choices. The first is that it is not realistically feasible for the Chief Executive to designate a Justice and obtain confirmation by the Senate without the at least grudging approval by the two home state senators concerned, especially if the latter are members of the President's own political party. The time-honored practice of "Senatorial courtesy" is an omnipresent phenomenon, because of senatorial camaraderie and the "blue slip" approval system, under which the Judiciary Committee normally will not favorably report a nominee to the floor if an objecting home-state senator has failed to return that slip. (Senator Edward Kennedy, during his two-year tenure as head of the Committee, abandoned the system in 1979, but it was partly restored by his successor, Senator Strom Thurmond, in 1981.) Although nominations to the Supreme Court are regarded as a personal province of presidential choice far more than the appointment of other judges, the Senate's "advice and consent" is neither routine nor perfunctory, to which recent history amply attests. In 1968, despite a favorable Judiciary Committee vote, the Senate refused to consent to President Johnson's promotion of Justice abe fortas to the Chief Justiceship; in 1969 it rejected President richard m. nixon's nomination of Judge Clement Haynsworth, Jr., by 55 to 45; and in 1970 it turned down that same President's selection of Judge G. Harrold Carswell by 51 to 45. Indeed, to date the Senate, for a variety of reasons, has refused to confirm twentyseven Supreme Court nominees out of the total of 139 sent to it for its "advice and consent" (twenty-one of these during the nineteenth century).

The second major factor to be taken into account by the President is the evaluative role played by the American Bar Association's fourteen-member Committee on the Federal Judiciary, which has been an unofficial part of the judicial appointments process since 1946. The committee scrutinizes the qualifications of all nominees to the federal bench and normally assigns one of four "grades": Exceptionally Well Qualified, Well Qualified, Qualified, and Not Qualified. In the rare instances of a vacancy on the Supreme Court, however, the committee has in recent years adopted a different, threefold, categorization: "High Standards of Integrity, Judicial Temperament, and Professional Competence"; "Not Opposed"; and "Not Qualified."

The third consideration incumbent upon the Chief Executive is the subtle but demonstrable one of the influence, however sub rosa and sotto voce, of sitting and retired jurists. Recent research points convincingly to that phenomenon, personified most prominently by Chief Justice william howard taft. If Taft did not exactly "appoint" colleagues to vacancies that occurred during his nine-year tenure (1921–1930), he assuredly vetoed those unacceptable to him. Among others also involved in advisory or lobbying roles, although on a lesser scale than Taft, were Chief Justices charles evans hughes, harlan f. stone, fred vinson, earl warren, and warren e. burger and Associate Justices john marshall harlan i, samuel f. miller, Willis Van Devanter, louis d. brandeis, and felix frankfurter.

A composite portrait of the 101 men and one woman who have been Justices of the Supreme Court provides the following cross-section: native-born: 96; male: 101 (the first woman, sandra day o'connor, was appointed by President ronald reagan in the summer of 1981); white: 101 (the first black Justice, thurgood marshall, was appointed by President lyndon b. johnson in 1967); predominantly Protestant: 91 (there have been six Roman Catholic and five Jewish Justices—the first in each category were andrew jackson's appointment of Chief Justice roger b. taney in 1836 and woodrow wilson's of Louis D. Brandeis in 1916, respectively); 50–55 years of age at time of appointment (the two youngest have been joseph story, 33, in 1812 and william o. douglas, 41, in 1939); of Anglo-Saxon ethnic stock (all except fifteen); from an upper middle to high social status (all except a handful); reared in a nonrural but not necessarily urban environment; member of a civic-minded, politically aware, economically comfortable family (all except a handful); holders of B.A. and, in this century, LL.B. or J.D. degrees (with one-third from "Ivy League" institutions); and a background of at least some type of public or community service (all except Justice george shiras). Contemporary recognition of egalitarianism and "representativeness" may alter this profile, but it is not likely to change radically.

Only the President and his close advisers know the actual motivations for the choice of a particular Supreme Court appointee. But a perusal of the records of the thirty-five Presidents who nominated Justices (four—W. H. Harrison, zachary taylor, andrew johnson, and jimmy carter—had no opportunity to do so) points to several predominating criteria, most apparent of which have been: (1) objective merit; (2) personal friendship; (3) considerations of "representativeness"; (4) political ideological compatibility, what theodore roosevelt referred to as a selectee's "real politics"; and (5) past judicial experience. Appropriate examples of (1) would be benjamin n. car-dozo (herbert hoover) and john marshall harlan (dwight d. eisenhower) ; of (2) harold h. burton (harry s. truman) and abe fortas (lyndon johnson) ; of (4) hugo black (franklin d. roosevelt) and william howard taft (warren g. harding) ; of (5) oliver wendell holmes (theodore roosevelt) and david j. brewer (benjamin harrison). Deservedly most contentious is motivation (3), under which Presidents have been moved to weigh such "equitable" factors as geography, religion, gender, race, and perhaps even age in order to provide a "representative" profile of the Court. Of uncertain justification, it is nonetheless a fact of life of the appointive process. Thus geography proved decisive in Franklin D. Roosevelt's selection of wiley rutledge of Iowa ("Wiley, you have geography," Roosevelt told him) and abraham lincoln's selection of stephen j. field of California. But given the superb qualifications of Judge Cardozo, despite the presence of two other New Yorkers (Hughes and Stone), the former's selection was all but forced upon Hoover. The notion that there should be a "Roman Catholic" and "Jewish" seat has been present ever since the appointments of Taney and Brandeis. Although there have been periods without such "reserved" seats (for example, 1949–1956 in the former case and since 1965 in the latter), Presidents are aware of the insistent pressures for such "representation." These pressures have increased since the "establishment" of a "black" seat (Marshall in 1967, by Johnson) and a "woman's seat" (O'Connor, by Reagan, in 1981). It has become all but unthinkable that future Supreme Court lineups will not henceforth have "representatives" from such categories. That the Founding Fathers neither considered nor addressed any of these "representative" factors does not gainsay their presence and significance in the political process.

Whatever may be the merits of other criteria motivating presidential Supreme Court appointments, the key factor is the Chief Executive's perception of a candidate's "real" politics—for it is the nominee's likely voting pattern as a Justice that matters most to an incumbent President. To a greater or lesser extent, all Presidents have thus attempted to "pack" the bench. Court-packing has been most closely associated with Franklin D. Roosevelt. Failing a single opportunity to fill a Court vacancy during his first term (and five months of his second), and seeing his domestic programs consistently battered by "the Nine Old Men," Roosevelt moved to get his way in one fell swoop with his "Court Packing Bill" of 1937; however, it was reported unfavorably by the Senate Judiciary Committee and was interred by a decisive recommittal vote. Ultimately, the passage of time enabled him to fill nine vacancies between 1937 and 1943. Yet george washington was able to nominate fourteen, of whom ten chose to serve, and his selectees were measured against a sextet of criteria: (1) support and advocacy of the Constitution; (2) distinguished service in the revolution; (3) active participation in the political life of the new nation; (4) prior judicial experience on lower tribunals; (5) either a "favorable reputation with his fellows" or personal ties with Washington himself; and (6) geographic "suitability." Whatever the specific predispositions may be, concern with a nominee's "real" politics has been and will continue to be crucial in presidential motivations. It even prompted Republican President Taft to award half of his six nominations to the Court to Democrats, who were kindred "real politics" souls (Horace H. Lurton, Edward D. White's promotion to Chief Justice, and joseph r. lamar). In ten other instances the appointee came from a formal political affiliation other than that of the appointer, ranging from Whig President john tyler's appointment of Democrat samuel nelson in 1845 to Republican Richard M. Nixon's selection of Democrat lewis f. powell, jr. in 1971.

But to predict the ultimate voting pattern or behavior of a nominee is to lean upon a slender reed. In the characteristically blunt words of President Truman: "Packing the Supreme Court simply can't be done.… I've tried and it won't work.… Whenever you put a man on the Supreme Court he ceases to be your friend. I'm sure of that." There is indeed a considerable element of unpredictability in the judicial appointment process. To the question whether a judicial robe makes a person any different, Justice Frankfurter's sharp retort was always, "If he is any good, he does!" In alexander m. bickel's words, "You shoot an arrow into a far-distant future when you appoint a Justice and not the man himself can tell you what he will think about some of the problems that he will face." And late in 1969, reflecting upon his sixteen years as Chief Justice of the United States, Earl Warren pointed out that he, for one, did not "see how a man could be on the Court and not change his views substantially over a period of years … for change you must if you are to do your duty on the Supreme Court." It is clear beyond doubt that the Supreme Court appointment process is fraught with imponderables and guesswork, notwithstanding the carefully composed constitutional obligations of President and Senate.

Henry J. Abraham
(1986)

(see also: Advise and Consent to Supreme Court Nominations.)

Bibliography

Abraham, Henry J. 1985 Justices and Presidents: A Political History of Appointments to the Supreme Court, 2nd ed. New York: Oxford University Press.

——1986 The Judicial Process: An Introductory Analysis of the Courts of the United States, England and France, 5th ed. New York: Oxford University Press.

Danelski, David J. 1964 A Supreme Court Justice Is Appointed. New York: Random House.

Schmidhauser, John R. 1960 The Supreme Court: Its Politics, Personalities and Procedures. New York: Holt, Rinehart Winston.

——1979 Judges and Justices: The Federal Appellate Judiciary. Boston: Little, Brown.