Appointment and Nomination of Supreme Court Justices

Table of Contents

1. Introduction

2. Historical Overview over the Institution ‘U.S. Supreme Court ’
2.1 Legal Background
2.2 The Origins of the Judicial System

3. U.S. Supreme Court Recruitment
3.1 Qualifications
3.2 Appointment Process
3.3 Influence of Race, Religion, and Gender
3.3.1 The Religious Factor
3.3.2 The Racial Factor
3.3.3 Gender Equality or Quota-Woman?

4. Impact of Political and Society-Relevant Groupings
4.1 Interest Groups and Lobbyists in the Background
4.2 The Attempt to Influence through Supreme Court Justices

5. Presidential Interest in the Supreme Court
5.1 Historical Nomination Process – Presidents and their Allies
5.2 Franklin Delano Roosevelts Judicial Reform Plan

6. Conclusion

7. Bibliography

8. Appendix

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 new-established 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 attention 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.^[1] 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.^[2]

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 Act^[3] – 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,^[4] 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,^[5] 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.”^[6]

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.^[7]

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:^[8]

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.^[9]

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.^[10]

Since there do not exist any legal or constitutional prerequisites to become one of the Supreme Court justices it would theoretically even be possible to achieve one of the nation’s most important posts without having previous judicial experience. Of course, this would not be possible nowadays,

[b]ut only 58 of the 105 who have served to date attended law school, and of those only 41 were graduated. It was not until 1845 that a sitting justice had attended law school (Levi Woodbury). The first law school graduate was Benjamin R. Curtis (in 1851). It was not until 1957 that an entire Supreme Court was composed of law school graduates. The last to serve without a law degree was Stanley F. Reed (1957); next to last Robert H. Jackson (1954). Last to serve without any law school attendance was James F. Byrnes (1941-1942).^[11]

The Supreme Court was and today is more than ever a fundamentally political institution, where the justices compete for influence and struggle for more power in society. Their position can be viewed as one of the most powerful and therefore most requested in the country, given that the decisions of the U.S. Supreme Court can (and did) alter the develop­ment of the whole nation. Yet, the tribunal is not a completely independent institution – it depends on political organizations and in addition, on the public opinion to carry out its decisions. Furthermore, the role political parties would assume in the nomination process in course of time, was not foreseeable from the beginning; thus, nowadays they do play a significant role in the selection of Supreme Court nominees – later we will find out to which extend their attempt to influence the nomination politically, is decisive in present days.

3. U.S. Supreme Court Recruitment

The process of appointment is guided by Article II, Section 2 of the Constitution,^[12] but as already mentioned before, the article does only say that the President shall have the power to nominate Supreme Court justices by and with the advice of the Senate. Then again, this does at least tell us that the Senate has the power to reject nominees chosen by the President (which is evidently crucial to him) thus, we do not obtain further information about the actual appointment system. In order the understand the motives for the selection of a candidate and the procedure that follows and leads to the actual nomination, I would like to examine the recruitment that “has become essentially a bargaining process in which the influence of the Senate is greater in regard to lower-court judgeships and that of the President is greater in regard to the Supreme Court”.^[13]

3.1 Qualifications

As previously stated above, the Constitution does not provide any information con­cerning the prerequisites a Supreme Court justice needs to fulfill. It does say though that Supreme Court justices serve “during good behaviour”,^[14] meaning that they serve until they die, resign, are convicted (and removed from their office) or are impeached. The Chief Jus­tice, in contrast to the Associate Justices, is a specific person who is designated by the ruling president on death removal or his resignation. Nevertheless, he must be confirmed by the Senate like his colleagues. Sometimes, the head of the Supreme Court will be a former Associate Justice who already sat on the bench and is then promoted, yet it could also be somebody who has not served before.

During the last century, the Supreme Court appointments turned into exceptional political events – the confirmation hearings are even televised since 1981 –, consequently, appointments become more and more important in politics. But why are justices selected, what are the criteria the president and the Senate take into account? According to Professor Sheldon Goldman there are

eight qualities, characteristics, or traits that most would agree are associated with the ideal type of a judge. 1. Neutrality as to the Parties in Litigation. 2. Fair-mindedness. 3. Being Well Versed in the Law. 4. Ability to think and Write Logically and Lucidly. 5. Personal Integrity. 6. Good Physical and Mental Health. 7. Judicial Temperament. 8. Ability to Handle Judicial Power Sensibly.^[15]

Others scholars moreover, add “openness to change, courage to take unpopular deci­sions; [and the] dedication to the Court as an institution and to the office of Supreme Court justice”^[16] to the above-mentioned factors, which constitute the greatness and the uniqueness of members of the High Bench. Nonetheless, it is doubtful if these criteria are always taken into account and also, if sitting and retired justices actually fulfill(ed) them. A prerequisite that is however unalterable for a place on the court today, is a bachelor of laws or a juris doctor degree. The ABA’s Standing Committee on Federal Judiciary also attach great im­portance to legal practice and trial experience, even though this is not obligatory (and the majority of the Congress still agrees that experience is not essential) and Justice Frankfurter stated once as well that “judicial experience, political affiliation, and geographic, racial, and religious considerations should not play a significant role in the selection of jurists”.^[17]

Without a doubt, appointments should be strictly made on merit and qualifications, however, it cannot be denied that these aspects are not – as they should be – regarded as the most important characteristics. Political and ideological compatibility are the controlling fac­tors in Supreme Court appointments, for the president as well as for the Senate. Therefore, the ultimate approval of a candidate mostly depends on political association and ideology and on personal friendship.

3.2 Appointment Process

Any President has a different proceeding in the quest for new justices for the High Bench in Washington, yet, the official procedure when a vacancy arises (or is about to arise) is the following: The assistant attorney general in charge of the Office of Legal Police com­piles a list of recommendations that are proposed by the staff of the White House, members of Congress and governors, but also suggestions from the state and local bar associations and other sources.^[18] Subsequently, members of the president’s staff and his principal counselors form a committee, which decides about the obtained recommendations and examines them.^[19] The investigation usually lasts from six to eight weeks and “[t]he first step is to submit a detailed questionnaire, often running from fifteen to twenty pages and covering some thirty points of inquiry. One of the questions asks the candidate’s judgment and evaluation of the ten most significant cases at law the candidate has litigated.”^[20] Following that, each of the possible nominees is interviewed in detail by the committee members and

[t]hrough interviews with lay and professional individuals – including all pertinent federal judges in the candidate’s area, top state judges, local law school deans, lawyers, and certain non-lawyers – the committee member becomes familiar enough with a candidate’s quali­fications and character to render a presumably useful appraisal of ability.^[21]

On the basis of the gathered data and a political appraisal, an informal report is submitted to the chairperson of the commission^[22] and moreover to the attorney general who decides if the ABA should render a formal report.^[23] As soon as the possible candidate is then informally confirmed by the ABA, the latter and the FBI (by request of the Justice Depart­ment) initiate a formal thorough investigation of the proposed expectant.^[24] The results are presented to the attorney general who makes his final recommendation to the president, based on the outcome. If the president approves of the selected candidate, the dossier of the investigated nominee is formally passed on to the Senate Judiciary Committee (in addition, the Committee obtains an independent evaluation by the ABA), which is then supposed to take action.^[25]“The Senate Judiciary Committee sends a ‘blue slip’ to the same state as the nominee for their approval.”^[26] And if the senators do not object, a short confirmation hearing, only lasting a few minutes, is held before a subcommittee, usually resulting in the final con­firmation.

In view of the fact that the Supreme Court nominees occupy a unique position in American society, this procedures though, was seldom applied to them. During history the selection of the justices for the High Tribunal was always regarded as presidential task and prerogative. What has changed though throughout the years, is the growing influence of demographic factors, which were of no importance in the early stages.

3.3 Influence of Race, Religion, and Gender

While investigating the history of the Supreme Court more profoundly I came across different factors influencing Supreme Court nominations, among them race, religion, and gender. To what extend do these personal attributes shape the selection process of a future justice?

From the 105 individuals who sat on the Court until 1993 the majority was

NATIVE-BORN (there have been but six exceptions, the last two being the English-born George Sutherland and Austrian-born Felix Frankfurter); WHITE (the first nonwhite, Thur­good Marshall, was appointed in 1967); MAN (there was no woman on the Court until President Reagan’s appointment of Sandra Day O’Connor in 1981); […]; GENERALLY PROTESTANT (six Roman Catholic and five Jewish justices); FIFTY TO FIFTY-FIVE years of age at the time of appointment; […]; ANGLO-SAXON ETHNIC STOCK (all except fifteen); UPPER-MIDDEL TO HIGH SOCIAL STATUS: REARED IN A NON-RURAL BUT NOT NECESSARILY URBAN ENVIRONMENT; MEMBER OF A CIVIC-MINDED, POLITICALLY ACTIVE, ECONOMICALLY COMFORTABLE FAMILY; B.A. and LL:B [Bachelor of Laws] or J.D. [juris doctor degree] DEGREES (usually though not always, from prestigious institutions); SERVICE IN PUBLIC OFFICE; from POPULOUS STATE.^[27]

In former times geographical diversity had a certain impact on appointments while in the modern Court this factor influences little – if it does have an effect on it at all. “[O]nly thirty-one states have been represented by the 106 members of the Court: Over half came from seven states”, which are New York, Virginia, Ohio, Massachusetts, Pennsylvania, Tennessee, and Kentucky.^[28]

[...]

^[1] Though the Supreme Court is already mentioned particularly by name in the Constitution.

^[2] http://www.law.cornell.edu/constitution/constitution.overview.html. Cf. appendix: Article III of the US Constitution.

^[3] Cf. appendix.

^[4] Supreme Court Justices, due to their extraordinary position in the nation’s highest tribunal are never called judges, but only justices.

^[5]“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.

^[6] John R. Vile, The United States Constitution: Questions and Answers, Westport, CT: Greenwood Press, 1998, 94.

^[7] http://www.law.cornell.edu/constitution/constitution.overview.html

^[8] Benjamin Franklin applied to George Washington for the appointment of naval officer in Norfolk and was obviously a friend of him.

^[9] 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/.

^[10] 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.

^[11] Henry J. Abraham, Justices and Presidents. A Political History of Appointments to the Supreme Court, New York: Oxford UP, 31992, 61.

^[12] Cp. appendix.

^[13] O’Brien, Storm Center, 73.

^[14] Cp. appendix, Art. III, Sec.1.

^[15] Quoted in: Abraham, Justices and Presidents, 4.

^[16] Ibid., 10.

^[17] Ibid., 52.

^[18] This list is afterwards reduced to only a few names.

^[19] The recommendations require the informal approval by the ABA – the American Bar Association.

^[20] Abraham, Justices and Presidents, 34.

^[21] Ibid.

^[22] This report is generally also submitted to the entire committee.

^[23] The American Bar Association (ABA) is the largest voluntary professional association in the world. The Standing Committee on Federal Judiciary of the ABA was established by President Truman in 1945/46 as the Special Committee on Federal Judiciary. Ever since the committee has been used by all presi­dents to a different extent. Its task is to promote qualified persons and oppose the nomination of unfit individuals.

^[24] Cp. O’Brien, Storm Center, 76.

^[25] Cp. ibid. and Abraham, Justices and Presidents, 34.

^[26] O’Brien, Storm Center, 75-76.

^[27] Abraham, Justices and Presidents, 61.

^[28] O’Brien, Storm Center, 84.