Appointment and Nomination of Supreme Court Justices

von: Ilka Kreimendahl

Table of Contents

1. Introduction 1

2. Historical Overview over the Institution ‘U.S. Supreme Court’ 1

2.1 Legal Background 1
2.2 The Origins of the Judicial System 2

3. U.S. Supreme Court Recruitment 4

3.1 Qualifications 4
3.2 Appointment Process 6
3.3 Influence of Race, Religion, and Gender 7

3.3.1 The Religious Factor 8
3.3.2 The Racial Factor 11
3.3.3 Gender Equality or ‘Quota-Woman’? 13

4. Impact of Political and Society-Relevant Groupings 14

4.1 Interest Groups and Lobbyists in the Background 14
4.2 The Attempt to Influence through Supreme Court Justices 18

5. Presidential Interest in the Supreme Court 19

5.1 Historical Nomination Process – Presidents and their Allies 21
5.2 Franklin Delano Roosevelt’s Judicial Reform Plan 24

6. Conclusion 25

7. Bibliography 27

8. Appendix 28

“The Court stands as a temple of law – an arbitrator of political disputes, an authoritative organ of law, and an expression of the American ideal of ‘a government of laws, not of men’.”1

1. Introduction

“Equal Justice Under Law” – this inscription is written above the main entrance of the Supreme Court building, proclaiming that every case and individual will be judged according to the same principles. Members of the court have the duty to come to a decision, which is free of personal and also political influences, a task that requires numerous virtues, among them independence, incorruptibility, and the self-confidence to apply new methods that might alter the country. Accordingly, the work of a Supreme Court justices makes high demands on a person and it is doubtful that any judge would be able to fulfill them. Yet from which point of view are these extraordinary individuals selected? And who has a right of codetermination in the appointment process? Since the Supreme Court is a major policy maker in the U.S, the appointments of the justices have a great impact on the future of the country. Consequently, the nominations are fundamental to a number of people, organizations and interest groups, as possible future decisions of the tribunal might transform society and American life. This paper will investigate the selection and nomination process of Supreme Court justices and the factors playing a role in the background. Beginning with an historical overview, we will take a closer look at the legal foundation and the early stages of the newestablished court. The second part attends to the qualification of justices and their ensuing appointment, also taking into consideration the various demographic factors that might influence a selection nowadays. Subsequently, the focus will be on interest groups and other society-relevant organizations, which take an interest in the tribunal and concentrate their attentio n on the selection of justices who are of importance to them. Finally, the thesis will go into the role presidents play in the selection procedure and to conclude I will summarize the results that follow from this work.

2. Historical Overview over the Institution ‘U.S. Supreme Court’

2.1 Legal Background

The Constitution of the United States neither gives details about how the judicial system should be organized, nor does it exactly specify the powers that should be vested in the Supreme Court.2 However, it does outline in Article III of the Constitution, albeit only vaguely, the authority of the judicial branch: Section 1. The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish […] Section 2. The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.3 As can be realized, the American Constitution does state all the cases in which the Supreme Court shall have the authorization to adjudicate; nevertheless it does not stipulate which course or guideline to follow. Thus it was left to the justices of the first U. S. Supreme Court to define its role and principles through their decisions. Throughout the years and with the support of the Senate, the Supreme Court succeeded in establishing and developing a nationwide acknowledged Federal Judiciary and the highest tribunal of the United States of America.

2.2 The Origins of the Judicial System

In 1789, the first bill introduced to the Senate became the Judiciary Act4 – showing the urgent necessity for the creation of a body of law within the new-build nation. Following this act, the nation was divided into the Eastern, Middle, and Southern Circuit, which again were subdivided into thirteen judicial districts. It was decided that the High Bench – the U.S. Supreme Court – would find its place in the nation’s latter capital Washington, where it is still located today. Originally the High Tribunal was composed of one Chief Justice and five Associate Justices,5 however, since the Constitution does not specify the number of members, this has changed repeatedly for almost a century. The number of associates has changed six times from five to ten during history, 6 nonetheless, since the Civil War (from 1869 on) the Supreme Court has constantly been composed of nine members – one Chief Justice and eight Associate Justices.

Members of the Supreme Court, unlike the other two governmental branches, are appointed and not elected and “Article II, section 2 of the Constitution specifies that they are appointed by the president with the advice and consent of the Senate.”7 He [the president] shall have power, by and with the advice and consent of the Senate, to make treaties […], and he shall nominate, and by and with the advice and consent of the Senate, shall appoint […] judges of the Supreme Court.8

While the nation was still in its infancy, Benjamin Franklin arouse a brief discussion about the candidates’ qualifications, which however resulted only in the decision that those individuals selected as federal justices, would be appointed on the basis of merit. Nonetheless, already the first president of the United States, George Washington, disregarded this arrangement, although he emphasized in a letter to Benjamin Harrison:9 But, when in it, I will, to the best of my Judgment, discharge the duties of the office with that impartiality and zeal for the public good, which ought never to suffer connections of blood or friendship to intermingle, so as to have the least sway on decisions of a public nature. I may err, notwithstanding my most strenuous efforts to execute the difficult trust with fidelity and unexceptionably; but my errors shall be of the head, not of the heart. For all recommendations for appointments, so far as they may depend upon or come from me, a due regard shall be had to the fitness of characters, the pretensions of different candidates, and, so far as is proper, to political considerations. These shall be invariably my governing motives.10

These supposedly were the criteria Washington considered when nominating a Supreme Court justice, though his final selection proved them to be (at least partly) untrue. President Washington, in the first place, took into consideration the political affiliation of the candidates and not their legal competence, in addition he wanted to reward close fellow party members for their loyalty and services. Associate Justices of the High Tribunal among others became for example Washington’s close friend Edward Rutledge, his former private secretary Robert H. Harrison and two members of the Constitutional Convention. 11

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1 David M. O’Brien, Storm Center. The Supreme Court in American Politics, New York: W.W. Norton, 31993, 13.

2 Though the Supreme Court is already mentioned particularly by name in the Constitution.

3 Cf. appendix: Article III of the US Constitution.

4 Cf. appendix.

5 Supreme Court Justices, due to their extraordinary position in the nation’s highest tribunal are never called judges, but only justices.

6 “Between 1789 and 1869, Congress changed the number of justices from six to five, five to six, six to seven, seven to nine, nine to ten, ten to seven, and seven to nine – each time at least partly with an eye on influencing the Court’s constitutional jurisprudence”, in: Donald Grier Stephenson Jr., Campaigns and the Court, in: Power, Conflict, and Democracy: American Politics into the Twenty-First Century, ed. by Robert Y. Shapiro, New York: Columbia UP 1999, 20.

7 John R. Vile, The United States Constitution: Questions and Answers, Westport, CT: Greenwood Press, 1998, 94.

9 Benjamin Franklin applied to George Washington for the appointment of naval officer in Norfolk and was obviously a friend of him.

10 George Washington, “Letter to Benjamin Harrison from the March 9, 1789”, in: Writings of George Washington, ed. by John Fitzpatrick, Vol. 30, 225. Cp. http://etext.lib.virginia.edu/.

11 Cp. Bernd Maaßen, Supreme Court im gewaltenteilenden amerikanischen Regierungssystem (1787- 1972), (Europäische Hochschulschriften, Reihe II: Rechtswissenschaften, 178), Frankfurt/M., Bern, Las Vegas: Lang 1977, 50.