Selecting Justice: Strategy and Uncertainty in Choosing Supreme Court Nominees

Selecting Justice

Strategy and Uncertainty in Choosing Supreme Court Nominees

Christine L. Nemacheck

On May 10, 2010, President Barack Obama formally nominated then Solicitor General Elena Kagan to be an associate justice of the United States Supreme Court. Almost three months later, the United States Senate voted to confirm the president’s nominee by a 63–37 vote. Much of the media coverage of the Kagan appointment focused on the confirmation process—the Senate Judiciary Committee’s hearings, debate among political pundits over the kind of justice Kagan might be, the possibility of a Republican-led filibuster, and the final vote on Kagan’s nomination. While the confirmation stage of judicial nominations is certainly an interesting process fraught with partisan politics, many of the most important considerations in the judicial nomination process happened before President Obama officially nominated a candidate to take the seat being vacated by Justice John Paul Stevens.

Presidents care a great deal about their nominations to the Supreme Court. When, in May 2009, President Obama announced that Justice David Souter would be retiring from the Court, he told White House reporters that “the process of selecting someone to replace Justice Souter [was] among [his] most serious responsibilities as President” (Gibbs 2009). President George W. Bush compared Supreme Court appointments to other appointments presidents make by saying that “[w]hile White House staff and Cabinet appointments are crucial to decision making, they are temporary. Judicial appointments are for life” (Bush 2010). Because Supreme Court justices serve lifetime appointments, presidents are able to use appointments to influence the Court’s decisions long after they leave office. Although a president can only serve two terms in office, Supreme Court justices routinely serve two or three times as long as that, and many have served much longer (McGuire 2005). For example, Justice Stevens, who announced in April 2010 that he would retire at the end of that Court’s term, was appointed by President Ford in 1975, nearly 35 years earlier. Justice Stevens’ near record-setting tenure on the Court is certainly not the norm, but the potential for Supreme Court justices to affect policy long after a president leaves office makes such appointments opportunities presidents relish.

Presidents Obama and Bush (43) are not alone in the importance they attribute to Supreme Court nominations. Throughout our nation’s history presidents have realized the crucial nature of these appointments. Appointments to the Court can have even greater implications for law and policy when the Court itself is closely divided and case outcomes might be affected by a change in one or two justices. Even justices themselves have made comments that reveal the weight of such changes on the nation’s high bench. Justice Stephen Breyer’s dissent in a prominent affirmative action case decided by the Supreme Court in 2007 is illustrative of that impact. Just four years after the U.S. Supreme Court had upheld affirmative action in university admissions by a 5–4 vote (Grutter v. Bollinger 2003), it struck down the use of race in student assignment to public schools in Seattle, Washington (Parents Involved in Community Schools v. Seattle School District No. 1 2007). In his dissent to the Court’s 2007 decision, Justice Breyer referred to the abrupt change in the Court’s holdings on affirmative action as a result of the changing membership on the Court. He wrote, “It is not often in the law that so few have so quickly changed so much” (Parents Involved v. Seattle, Breyer, S., dissenting). As the proportion of cases decided by a one vote margin grows, as has been the case in the 1990s and 2000s (Epstein et al. 2007b), it is increasingly likely that even a single appointment to the Supreme Court will have important legal and political implications.

Thus, presidential appointments to the Supreme Court matter a great deal. That there is agreement on the importance of these appointments begs the question of how presidents actually choose their nominees to the Court. Why does one candidate rise to the top of the president’s list? Although nominees to the Supreme Court do not win confirmation as easily as do high executive branch appointments (as will be discussed in the following pages), the fact is that the great majority of presidential nominees to the Supreme Court are confirmed by the Senate. As a result, it is important to understand the politics of the selection stage of the nomination process—the point from which a vacancy on the Court exists until the president officially nominates his candidate for the Court.

In this chapter, I focus on the president’s choice of a nominee to the U.S. Supreme Court. As mentioned above much of the attention to the appointment process centers on the Senate’s decision to confirm the president’s nominee. This is not only true in the case of the media; it is also true of much of the scholarly research on appointments (Cameron, Cover, and Segal 1990; Overby et al. 1992; Ruckman 1993; Segal 1987; Segal, Cameron, and Cover 1992; Shipan and Shannon 2003). But, there has been some examination of the “selection stage” of the nomination process.

Much of the research on the selection stage has focused on the choices of individual presidents or has been historical accounts of particular nominations. Such research has suggested that appointments are idiosyncratic and unsuitable for systematic empirical research (Abraham 1999; but see Yalof 1999). This research has provided important insight on a myriad of factors that might affect any one nomination to the Court; and to that end, it has shed light on the appointment process. It is undoubtedly true that any appointment to the Supreme Court, or any other position for that matter, is affected by factors unique to the candidate being appointed and to the context in which the appointment occurs. However, rather than focusing on an individual nomination, or even the nominations of one particular president, we can approach the process of Supreme Court nominations by examining commonalities that exist for every president making such appointments (Nemacheck 2007; Yalof 1999). We can develop a theoretical framework to analyze the factors that shape the selection process and the conditions under which those factors are influential. Such an approach provides a lens through which we can better understand the dynamics of choosing nominees who, along with their colleagues on the Supreme Court, will have the final word on many of our most important constitutional debates.

This systematic, theoretical approach work draws heavily on Henry Abraham’s seminal research in which he identified common threads across presidential appointments to the Court (Abraham 1999). Abraham analyzed the history of Supreme Court appointments from Presidents Washington through Clinton and found that four themes emerge as important to presidents in making nominations to the Court: objective merit, political and ideological compatibility, representation, and personal friendship (Abraham 1999). Abraham’s work provides an important step in understanding of the commonalities among those whom the president chooses to sit on the Court. However, it does not get us as far in determining why a particular candidate is chosen for the Court in the first place, rather than other potential candidates for the position.

It has become commonplace for presidents to develop a “shortlist” of candidates they might consider for appointment to the Supreme Court, often before a vacancy on the Court exists. President George W. Bush did just that when he asked his White House Counsel, Alberto Gonzales, to begin developing a list of potential candidates for the Supreme Court shortly after the 2000 election was decided (Bush 2010). Of course President Bush would not have the opportunity to make an appointment to the Court until his second term in office, but his list was ready should a vacancy have occurred. By analyzing why the president chose Chief Justice John Roberts or Justice Samuel Alito instead of other candidates included on the shortlists for those positions on the Court we can better understand factors that affect the president’s choice and the make-up of the Supreme Court more generally.

An advancement of more recent research on the selection process is its focus on systematically analyzing the determinants of presidents’ choices of nominees for the Court. In the following pages, I will discuss a framework through which we can analyze presidents’ choices of Supreme Court nominees. I contend that although there are undoubtedly idiosyncratic factors that affect presidential appointments to the U.S. Supreme Court, there are patterns that underlie the selection of justices. I will first give a very brief overview of the process of Supreme Court appointments. Since I argue that the institutions are important in constraining presidents’ choices, it is important to have a clear understanding of the institutional requirements. I will then discuss the importance of uncertainty in shaping the way presidents think about Supreme Court nominations. Then, I will focus on the political and institutional constraints that affect all presidents when making appointments to the Supreme Court. After laying out the framework within which these appointments take place, I will then present evidence showing that presidents act strategically in their choice of nominees.

A Brief Overview of the Supreme Court Appointment Process

Article II, Section 2 of the U.S. Constitution vests the appointment power in both the president and the Senate. Presidents can nominate “and by and with the Advice and the Consent of the Senate” appoint justices to the U.S. Supreme Court. The process of appointing a justice to the U.S. Supreme Court typically begins when a vacancy becomes available on the Court. This might happen because a justice chooses to retire, as Justice John Paul Stevens did at the end of the Court’s term in 2010, or it might occur as a result of a sitting justice’s death, as was the case when Chief Justice Rehnquist passed away in September 2005.

In some cases, presidents may get notice of the justice’s intention to retire before the justice officially announces his or her retirement. This was the case, for example, in 1986 when Chief Justice Burger retired from the Court. He told President Reagan that he would retire and the President was able to conduct his search for a replacement without the press being aware of the process. During the same press conference in which Reagan announced Chief Justice Burger’s retirement, he announced that then Associate Justice William Rehnquist would become the next chief justice and that Antonin Scalia, a judge on the Court of Appeals for the District of Columbia Circuit, would become an associate justice.

However, presidents might also receive notice of a justice’s retirement in the same way the press and the public do. For example, on June 30, 2005, President Bush (43) was notified by the Supreme Court that a letter was being forwarded from one of the justices. Because Chief Justice Rehnquist had been battling cancer, the administration thought it was likely a letter from Rehnquist announcing his retirement. But, that was not the case. Instead, the letter was from Justice Sandra Day O’Connor; in it she announced her own retirement from the Court (Bush 2010, 97). Though the administration may have anticipated some retirement from the Court at the end of the Court’s term in 2005, it was not the vacancy they had expected to fill.

Once presidents are aware of a vacancy on the Court, they generally direct officials in the White House Counsel’s office and/or the Justice Department to begin researching possible candidates. For presidents who have come into office with some list of possible nominees, this typically means considering those candidates and winnowing it down to a shortlist of candidates to seriously consider for the particular appointment. For presidents who do not have such a list to begin with, and this is more likely the case historically than in the last 30 years, they begin compiling a list of names for consideration.

During the process of developing a shortlist, presidents have typically consulted with a number of political actors both within and outside of their administrations. It is quite common for presidents to consult with members of Congress and for those members to formally recommend candidates for the president’s consideration. It is also not unusual for presidents to consult with former or current members of the Supreme Court itself, as well as with friends and personal advisers.2

Presidents typically continue to consult with advisers as they consider candidates on the shortlist. Again, they may well consult with Members of Congress, in particular they may vet names with key senators, such as the Senate leadership and those on the Senate Judiciary Committee, as they will play important roles in the confirmation process. Once the president chooses a candidate (the process I will discuss below), the nomination is sent to the Senate for consideration.

In the Senate, the nomination is first sent to the Senate Judiciary Committee. The Committee holds hearings on the nomination, often requesting testimony from individuals who have worked with the candidates and from the candidates themselves.3 Upon closing the hearings, the Senate Judiciary Committee then makes a recommendation on the candidate to the Senate as a whole. Although in lower federal court confirmation proceedings, a negative vote by the Judiciary Committee kills the nomination, that is not true of Supreme Court nominations. The nomination is still sent to the Senate floor with the Committee’s recommendation, but a negative vote certainly indicates poor prospects for the vote on the floor.

Supreme Court nominees are confirmed by a majority vote on the floor of the Senate. Although the great majority of nominees are confirmed, the possibility of rejection is very real. As mentioned above, Supreme Court nominees do not enjoy the same degree of success in the confirmation process as do other presidential appointees. For example, approximately 95% of nominees to executive branch positions are confirmed (McCarty and Razaghian 1999). Nominations to the Supreme Court have not enjoyed the same level of success. Since 1789, presidents have nominated 154 candidates to become Supreme Court justices and the Senate has failed to confirm 31 of those nominations,4 a success rate just under 80%.5 Thus, with one in five Supreme Court nominees failing to garner Senate confirmation, presidents have reason to choose their candidates carefully.

Once a nominee is confirmed by the Senate, he holds his position “during good Behaviour.”6 Essentially, justices of the United States Supreme Court, as well as lower federal court judges, hold their positions for life. It is only when they choose to resign or retire, or die in office, that the president has the opportunity to appoint a replacement. If, on the other hand, the nominee is rejected, the process begins again. In such circumstances, presidents typically have returned to their ealier shortlists for another candidate, perhaps with some modification, and chosen a new nominee to fill the vacancy.

Uncertainty and the President’s Choice

President Obama, like all other presidents before him, faced two types of uncertainty in choosing his nominees to the U.S. Supreme Court. First, he was uncertain about how someone he nominated to the Supreme Court might behave once he or she took the position. Presidents, of course, face this kind of uncertainty with almost any nomination they make. However, unlike their nominees to head an executive department or agency who can be removed if the president is unsatisfied with their service, a Supreme Court justice cannot be removed from office because the president disapproves of the decisions he or she makes. So, even more than in the case of executive appointments, it serves a president well to choose judicial nominees about whose future behavior he can be most assured.

Beyond the uncertainty presidents face over the nominee herself, presidents also face uncertainty surrounding the Senate’s confirmation decision. Presidents do not have the power to appoint candidates to the judiciary on their own. They enter the fray of judicial nomination politics knowing that any candidate they might appoint to the Supreme Court will have to garner Senate approval. This institutional feature confronts all presidents regardless of their individual goals in naming a candidate to the Court.

Supreme Court nominations are particularly vulnerable to Senate confirmation difficulties during divided government—when the Senate is controlled by the party opposite the President.7

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