Appointing Supreme Court Justices
Abstract and Keywords
This chapter assesses the literature on Supreme Court appointments and considers directions for future research. Early work on appointments tended to be in the form of broad political histories or more narrow historical accounts of individual appointments. But as the field developed, much of the work on appointments centered on the confirmation process, including the determinants of senators’ confirmation votes and presidents’ success in getting their Supreme Court nominees confirmed. Was this success due to congressional deference to the president’s appointment power? Or, did presidents’ success result from an active and anticipatory selection stage in which presidents strategically consulted with members of Congress in order to pave the way toward a smooth confirmation? To answer these questions, recent work on appointments has focused on the selection stage. The evidence seems to support the latter—presidents anticipate problems and work with members to garner support for a confirmable nominee.
In the eight years since President George W. Bush appointed Third Circuit Court of Appeals Judge Samuel Alito to the U.S. Supreme Court, filling the seat left vacant by Justice Sandra Day O’Connor’s retirement, the Court’s decisions have changed significantly. In areas such as affirmative action, abortion, or campaign finance reform, the Court’s rulings are likely quite different than they would have been had Justice O’Connor, long the Court’s swing vote, remained on the bench. One can also reasonably argue that, not only would the language of many rulings have been different if Justice O’Connor had participated in the cases, but that several 5–4 rulings would likely have been resolved for the opposite party. Indeed, Justice O’Connor’s own criticism of the Court’s controversial 2010 ruling in Citizens United v. Federal Election Commission, invalidating much of the Court’s decision in McConnell v. Federal Election Commission rendered just seven years earlier, provides evidence of the impact that can result from even a single appointment to the U.S. Supreme Court. Referring to the 2010 decision, Justice O’Connor said, “Gosh, I step away for a couple of years and there’s no telling what’s going to happen” (Liptak 2010).
To put it succinctly, appointments to the U.S. Supreme Court matter. They matter to the president, whose name will forever be associated with his Court appointments, and who hopes to influence the kinds of decisions the Court makes for years after leaving office. They matter for senators who want to influence the Court’s composition and, by extension, the policy that results from its decisions. And, of course, appointments matter to the public whose lives and expectations will be shaped by the institution’s rulings.
Given its institutional importance, it should be no surprise that staffing the Court has piqued the interest of the popular media and scholars alike. From early historical accounts of individual appointments or those of a particular president, to more recent theoretical and empirical analyses of the nomination and confirmation process, we have learned a great deal about the process of appointing justices to the U.S. Supreme Court, (p. 30) the actors involved, and the institutional and political constraints on the appointment process.
This chapter discusses the relevant literature on the Supreme Court appointment process, assesses the current state of that literature, and suggests some promising directions for future research. The first section addresses some early efforts to understand Supreme Court appointments by several leaders in the field of judicial politics. That work provided the foundation for more recent inquiries into the process. This more recent literature is divided into the two stages of the appointment process: the selection stage and the confirmation stage. The chapter concludes by discussing some developing questions that may provide interesting avenues for future research.
A Political Court, the Political Environment, and Appointments
Prior to C. Herman Pritchett’s work developing a positive theory of Supreme Court decision-making, political scientists largely neglected the politics of the Supreme Court justice appointment process. Indeed, prior to the legal realism movement, there was little reason to critically examine the appointment process since the Court’s decisions were largely understood as determined by the logical, mechanical application of legal precedent.1 Under such circumstances, the identity of individuals seated on the Court made little difference as long as they possessed the necessary qualifications and capability to apply legal precedent.
Pritchett’s analysis of justices’ votes during the 1939 and 1940 Court terms signaled a major development in the political science literature, and judicial politics more specifically. Pritchett embraced legal realism by evaluating how President Roosevelt’s appointees voted compared to other sitting justices, not only in terms of the direction of their votes, but also in terms of agreement or disagreement with other Court members. In doing so, he explicitly recognized the importance of judicial attitudes as an explanatory variable. According to Pritchett, “it is the private attitudes of the majority of the Court which become public law” (Pritchett 1941: 890). And for Pritchett, this conclusion was not only evident based on his analysis of the justices’ votes, it was also normatively desirable that the “political philosophies of the justices and their personal judgments as to the role of law and the Constitution in relation to economic and social development” should influence Supreme Court decisions (Pritchett 1946: 499).
Though the debate between legal realists and legal formalists continues in the academy, there is little if any doubt among political actors and the American public that judges’ and justices’ votes are an expression of their political philosophies and personal judgments regarding the role of the law in American society. The natural extension of that view is that appointments to the federal courts, and to the Supreme Court in particular, are indeed political.
(p. 31) With the publication of his 1964 book, A Supreme Court Justice Is Appointed, David Danelski provided the basis for much of the early work on appointments to the Supreme Court. Danelski sought to explain why President Warren G. Harding chose Pierce Butler for appointment to the Court in 1922. By analyzing Butler’s nomination, Danelski began to build a framework to examine nominations to the Court more generally (1964). Danelski’s transactional theory helped explain Butler’s appointment, as well as factors that presidents more generally might consider in making appointments to the High Court. According to Danelski, a nominee’s qualifications and personality are integral to the president’s choice, but other political actors can also influence the president’s decision by shaping how the president views the nominee. In other words, while a candidate’s specific characteristics helps to explain their appointment, factors external to the candidate also play a role in that process.
Following Danelski’s work, Joel Grossman evaluated the influence of the American Bar Association (ABA), whose ratings of judicial quality have the potential to influence the context in which presidents make appointment decisions (1965). Like his predecessors, Grossman’s approach recognized that judicial candidates’ backgrounds affected the decisions they reached on the courts. Important for Grossman’s argument is the understanding that the courts and judges are political institutions and actors, respectively. Indeed, in one review of Grossman’s work, the reviewer took pains to note that while Grossman’s work “comes from a political scientist (and from the preface one assumes a ‘judicial behaviourist’),” it is likely to appeal to all lawyers with an interest in securing better judges (Weir 1967: 243).
Robert Scigliano’s 1971 work examining presidential control over the appointment process focused more explicitly on the way institutions shape the appointment process. Scigliano’s overarching interest in The Supreme Court and the Presidency was the potential for the executive and judiciary to work together to check Congress. His focus on the president’s authority in making appointments and the degree to which judicial nominees represented their appointing presidents’ views from the bench led Scigliano to distinguish between the selection and the confirmation stages of the process. This is an important distinction on which later work would build; the appointing president has the greatest potential for unfettered authority at the selection stage (the time up until a formal appointment is sent to the Senate), but in making decisions at the selection stage, he must be cognizant of the constraints he faces at the confirmation stage (Moraski and Shipan 1999; Nemacheck 2007).
Scigliano asserted presidents’ control over the selection stage has two bases: knowledge and power. Presidents often had personal knowledge of their nominees prior to appointment and that, of course, led to greater confidence in the person’s likely behavior as a justice compared to a candidate a president did not know. In particular, Scigliano’s treatment of political actors’ attempts to influence appointments laid the groundwork for future, systematic analyses of nomination dynamics. While he recognized the importance of considering attributes of those nominated, Scigliano also incorporated into his analyses the political conditions in which the nominations took place. He considered the Senate’s partisan composition and the possible exercise of senatorial courtesy by a (p. 32) senator from a nominee’s home state, as well as the time in the president’s term at which the nominations arose (1971).
An important question underlying Scigliano’s research was whether presidential success in securing Senate confirmation resulted from Senate deference to the president’s authority to appoint Supreme Court justices, or from presidential anticipation of the Senate’s likelihood to confirm a nominee and choosing accordingly (1971). Later inquiry into the relative power of the president and Senate in the appointment process used various terms, but essentially framed the question as one of presidential domination or presidential anticipation (Chang 2001; Hammond and Hill 1993; Krehbiel 2007). The bulk of the evidence points toward the latter.
Approximately 80 percent of the time, the Senate votes to confirm presidents’ nominees to the Court. Based on a theory of presidential anticipation, that success rate is evidence that presidents correctly gauge senators’ concerns about nominee ideology or method of constitutional interpretation, along with the potential for those senators to block the nomination, and choose nominees they expect will be confirmed within those constraints (Moraski and Shipan 1999; Nemacheck 2007; Shipan, Allen, and Bargen 2014). But, what explains the 20 percent of nominations that fail in the Senate? This question has animated a number of studies.
Some scholars have examined the appointment process by focusing on unsuccessful nominations (Massaro 1990; Whittington 2007), while others have analyzed the variation in the amount of time it takes the Senate to confirm Supreme Court nominees (Shipan and Shannon 2003). In examining failed nominations, scholars have generally found that “mistakes” presidents make at the selection stage are typically the key to understanding why the Senate refuses to confirm a nominee. If presidents fail to effectively manage what Massaro refers to as the “pre-nomination stage,” which might include consulting with members of Congress on the appointment, their nominees are likely to experience difficulty at the confirmation stage (1990).
Whittingon (2007) emphasizes the importance of selection deliberations in examining the relative power of the Senate and the executive in making Supreme Court appointments. If theories of presidential anticipation are correct, and Whittington believes they are, it is important for voters to consider future federal court appointments when casting a presidential election ballot. But, voters should also keep those considerations in mind when voting for their senators. Whittington recognizes that presidents have an advantage over senators in making appointments since senators can only vote to accept or reject candidates, they do not hold the positive power to choose candidates. But, he argues that presidents should anticipate the confirmation process at the selection stage, particularly when the opposite party controls the Senate (2007). Furthermore, analyzing the length of time required for the Senate to act on a nominee, Shipan and Shannon (2003) find that as the ideological distance between the president and the Senate increases, the Senate is increasingly likely to delay voting on the candidate. Thus, under relatively more difficult confirmation settings, strategic presidents should consider that distance when choosing the nominee.
(p. 33) Following Danelski and Grossman, scholars began to analyze more explicitly the factors affecting the relative constraints under which presidents made their nominations. For example, Harold Chase examined factors shaping the confirmation environment and asserted that neither presidents nor senators operate in a vacuum in the judicial appointments process (1972). He identified four contextual elements that would influence the president’s choice of a nominee and his discretion in making that nomination. These elements included the balance of power in the Senate, the Senate’s support for the president, the public’s support for the president, and the attributes of the seat left vacant on the Court.
Although many of the factors shaping the confirmation environment are outside of the president’s control, that is not true of all of them. For scholars asserting presidents’ ability to improve their nominees’ likelihood of confirmation, it was important they consider those variables over which presidents could exercise control. In examining appointments of federal appellate judges, including Supreme Court justices, John Schmidhauser (1979) understood presidential evaluation of nominees’ ideological preferences to be primary. In addition, Schmidhauser stressed the importance of appointees’ background characteristics, which presidents do control. These include ethnicity, sex, religious affiliation, educational background, prior judicial experience, and paternal occupation. Furthermore, although he emphasized the president’s “domination” of the Supreme Court appointment process, Schmidhauser recognized the institutional constraints bearing on the decision, particularly the need for Senate confirmation. Additionally, Schmidhauser examined the role of interest groups in pressuring the president and, in a departure from Grossman’s focus on the ABA’s role in judicial selection, Schmidhauser analyzed the potential for the group to conflate competence and ideology in conducting its evaluation of a nominee’s qualifications for the Court (1979).
In much of the theory-driven empirical studies of the appointment process, judicial politics scholars remained focused on the Senate’s confirmation decision. Much of the more recent work seeks to explain the confirmation votes and influence of particular senators and committee chairs. For example, they asked whether members cast their votes according to their own ideological distance from the candidates. Or, did they instead tow the party line regardless of that distance (Segal 1987; Cameron, Cover, and Segal 1990; Segal, Cameron, and Cover 1992)? Given the rise of interest groups, particularly single interest groups, scholars have sought to understand sources of interest group influence (Caldeira and Wright 1998; Segal, Cameron, and Cover 1992). Because these questions are inherently inter-institutional in nature, much of the research has depended on some means of measuring characteristics like ideology across institutions. Thus, several scholars have devoted significant time and attention to finding a means by which to compare the ideological positions of presidents, senators, and justices (Bailey and Chang 2001; Martin and Quinn 2002; Bailey 2007). As a result, we know quite a lot about why senators vote as they do and how characteristics of the candidate, the members’ constituents, and interest groups affect senators’ confirmation votes. It is to that literature that I now turn.
(p. 34) The Confirmation Stage
Because the Constitution requires the president to appoint justices with the Senate’s advice and consent, much of the work on the confirmation stage seeks to explain senators’ votes on Supreme Court nominees (Segal 1987; Cameron, Cover, and Segal 1990 and Segal, Cameron, and Cover 1992; Ruckman 1993; Overby, Henschen, Walsh, and Strauss 1992; Guliuzza, Reagan, and Barrett 1994; Moraski and Shipan 1999; Shipan and Shannon 2003; Johnson and Roberts 2004; Shipan 2008). In his initial analysis of Senate confirmation votes, Jeffrey Segal found that partisan and institutional factors significantly affect members’ votes (1987). And, in their 1990 and 1992 analyses, Segal, Cameron, and Cover, developed a spatial model of Senate confirmation votes finding that, along with candidates’ qualifications, senators’ votes were largely a product of their own ideological distance from the nominee.
One factor that is universally thought to be an important, if not the most important factor in the appointment process, is the nominee’s ideology. There is widespread agreement that justices of the U.S. Supreme Court have discretion in making decisions on the Court; they are not solely constrained by the letter of the law or Court precedent (Spaeth and Segal 1999; Segal and Spaeth 2002; Maltzman, Spriggs, and Wahlbeck 2000; Epstein and Segal 2005; Collins 2008; Bailey and Maltzman 2011; Collins and Ringhand 2013). Even beyond their final votes, the way justices articulate legal rules and the language they use has important consequences for the rule of law (Epstein and Kobylka 1992; Wahlbeck 1997). This has been clear to presidents since the very first appointments to the Supreme Court when George Washington chose six justices who shared his views on the importance of a stronger national government to the U.S. Supreme Court; all were Federalists.
Given the widely asserted prominence of ideology, it is not surprising that scholars have examined its importance relative to, and controlling for, other variables in the appointment process. In order to examine the importance of ideology in the appointment process empirically, however, scholars needed some way to measure a judicial candidate’s ideology. This was a difficult proposition, not least because most ideological measures were based in whole or in part on representatives’ voting records. Given that Supreme Court nominees came from different walks of life, it was no easy task to develop a single ideological measure across which candidates and those responsible for their appointment, could be compared.
One of the earliest attempts to measure justices’ ideology was to analyze pre-confirmation newspaper reports on the candidate’s ideological positions between the date the nomination was announced and the date of confirmation (Segal and Cover 1989). These Segal-Cover scores were then compared to scores of senators’ relative liberalism or conservatism (through the use of Americans for Democratic Action (ADA) scores), to test the premise that senators were more likely to vote for candidates with whom they were ideologically proximate. Segal and his coauthors utilized these scores (p. 35) in their 1990 and 1992 analyses of judicial confirmation discussed above; that work went a long way toward advancing our knowledge of important factors in the confirmation process.
While the Segal-Cover measure of judicial ideology was a significant advancement, the measure’s inherent limitation is its stasis. The newspaper accounts of a justice’s ideology prior to confirmation provide an ideological measure apart from a justice’s voting record, but it is a static measure and thus assumes that ideology is stable over time (1989). Aimed at addressing some of the limitations of the Segal-Cover measures, Andrew Martin and Kevin Quinn developed a dynamic ideological measure based on the justices’ votes (2002). Because they are dynamic, the Martin-Quinn scores allow for across-time comparisons and they are good ideological indicators across issue areas.
Although Martin-Quinn scores provide a better measure of justices’ ideology over time, comparing justice ideology with that of senators and presidents still posed a significant hurdle to empirical, cross-institutional studies. Developing a cross-institutional ideological measure would allow for the systematic, empirical analysis of whether ideology plays the role in appointment politics that it has long been asserted to play. Michael Bailey and Kelly Chang (2001) addressed the need for a cross-institutional ideological measure using a bridging technique.
Baily and Chang’s measure utilizes indicators of congressional members’ ideology developed by Keith Poole and Howard Rosenthal (1991, 1997). Poole and Rosenthal developed what they call “Common Space Scores” for members of Congress and presidents. These scores are derived from a spatial model in which members’ preferences on policy alternatives are maximized at particular “ideal points” (see Poole and Rosenthal 1991, 1997). To allow for the ideological comparison across all three branches, Bailey and Chang used a bridging technique in which they examined Supreme Court cases on which presidents and members of Congress took public positions (2001). In further work on cross-institutional ideological measures, Bailey used a Bayesian Markov Chain Monte Carlo approach to measuring ideal points that allows for ideological comparisons across institutions and across time (Bailey 2007).
In other work measuring the effects of ideology inter-temporally and across institutions, Epstein, Lindstädt, Segal, and Westerland (2006) rescaled Segal-Cover scores using Martin-Quinn scores (2002) for justice ideology and Poole and Rosenthal’s scores, for members’ ideology (1991, 1997). The results of the 2006 analysis largely mirror Segal et al.’s earlier findings; ideology and merit, or the nominee’s perceived qualifications for office based on newspaper editorials, are significant factors in senators’ confirmation votes, though there is a heightened role for ideology in more recent confirmation votes (Epstein et al. 2006).
Scholars and close observers of judicial confirmation politics almost universally assert that Robert Bork’s confirmation hearings signaled a significant change in the substance and tenor of the confirmation process. It became more politicized, more focused on nominees’ ideological positions and less concerned with a nominee’s qualifications (Epstein, Lindstädt, Segal, and Westerland 2006). Members of both political parties have become critical of the substance and focus of confirmation hearings. Amid that (p. 36) criticism, some scholars, and even a current Supreme Court justice prior to her appointment, have questioned their utility and have called for reform (Carter 1994; Davis 2005; Eisgruber 2007; Kagan 1995; Yalof 2008).
Some critics deride the politicized nature of the process and the nominees’ refusal to answer questions. When Supreme Court Associate Justice Elena Kagan was a professor of law at the University of Chicago, she contended that since Bork’s defeat, confirmation hearings have been a “vapid and hollow charade in which repetition of platitudes has replaced discussion of viewpoints and personal anecdotes have supplanted legal analysis” (Kagan 1995). That said, others defend the process and argue that confirmation hearings allow for a national debate on important constitutional issues and thus have the potential to enhance the Court’s legitimacy (Comiskey 2004; Collins and Ringhand 2013a; Collins and Ringhand 2013b).
In their examination of Supreme Court confirmation hearings, Collins and Ringhand argue that by focusing on the questions nominees refuse to answer, such as those pertaining to abortion and affirmative action, these earlier analyses miss the important role the hearings play in providing democratic legitimacy to the Court’s important constitutional decisions. For example, the authors contend that it is valuable for a Chief Justice nominee like John Roberts to say that cases such as Brown v. Board of Education (1954) and Roe v. Wade (1973) are settled law and “entitled to respect out of principles of stare decisis” (2013a). According to this understanding of confirmation hearings, Robert Bork failed to be confirmed because he refused to support precedent such as Roe and explicitly criticized the Court’s reasoning in the case.
As mentioned above, many point to the Bork confirmation hearings as a tipping point in the politicization of the appointment process, and particularly the confirmation environment. And, the popular press has given substantial attention to interest groups’ lobbying tactics during and since Judge Bork’s confirmation hearings. But, interest group activism in the judicial appointment process is hardly new. Groups have attempted to affect judicial staffing at least since the 1880s. For example, the National Grange and the Anti-Monopoly League lobbied against former Senator Stanley Matthews’ appointment to the Court, first by President Hayes and then by President Garfield (Maltese 1995).
Interest group activity became even more prominent after the Seventeenth Amendment, by which voters began electing their U.S. senators directly, was ratified in 1913. In the wake of ratification, senators had to appeal directly to their constituents. Senators’ need to connect with those constituents created an avenue for interest group influence and, at least arguably, left them more susceptible to interest group influence (Bell 2002). A change in the Senate rules also influenced interest groups’ involvement in confirmation debate. Prior to 1929, the Senate considered Supreme Court nominations in near total secrecy, but a rules change that year moved debate on nominations to the floor and provided an opportunity for interest groups to assert their influence (Maltese 1995).
The literature on interest group involvement is largely in agreement that interest groups are active in Supreme Court confirmation politics and that they can have a significant effect on senators votes (Caldeira and Wright 1998; Segal, Cameron, and Cover (p. 37) 1992). Interest groups provide senators with information about the nominees as well as their constituents’ views and the importance of the appointment to their constituents. And, in attempting to influence the confirmation vote, they do, as we would expect, target those members with the institutional clout to affect the outcome (1998). Although some lament the amount of interest group lobbying in the confirmation process, others have argued that groups’ involvement has made the process more transparent and democratic (Silverstein 1994). Regardless of which position one espouses, it seems clear that groups’ lobbying and influence is here to stay.
The Selection Stage
As mentioned above, much, though not all, of the scholarly investigation into the selection stage has built on the work of scholars studying confirmation politics. As it became clear that nominee-specific and institutional factors had an important bearing on the likely confirmation of the president’s nominee, some scholars turned their attention to analyzing how and why the president and his advisors chose particular nominees. Given that the Senate has voted to confirm just over 80 percent of all Supreme Court nominees, it is critical to understand the process prior to the president’s announcement of a nominee.
The selection stage of the Supreme Court appointment process has received less attention than the confirmation stage, but the literature devoted to presidents’ considerations in making appointments to the Supreme Court has grown significantly over the last fifteen years. That said, Henry Abraham’s seminal work on judicial appointments, Justices, Presidents, and Senators, first appeared in 1974 and is now in its fifth edition. Although Abraham did not restrict his discussion to the selection stage, his political history of Supreme Court appointments since Washington’s first six nominations includes extensive coverage of each president’s Supreme Court appointees from Washington to George W. Bush. Although his approach is historical and focused on individual appointments to the Court, Abraham does assert that presidents’ considerations can be generalized into four broad categories: the candidate’s objective merit, the president’s interest in balancing representation or representativeness on the Court, the president’s personal friendship with the candidate, and the candidate’s political and ideological compatibility with the appointing president (Abraham 2007).
Abraham’s categorizations have motivated much of the literature on the selection stage since it was first published in 1974. The first characteristic Abraham asserts as prominent in the nomination process is the candidate’s objective merit. Although the Constitution does not set any particular requirements for service on the Supreme Court, the framers understood that the structural requirements they established (presidential nomination and Senate confirmation) would result in the most qualified candidates being appointed. Scholars studying the selection of Supreme Court justices uniformly agree that merit is an important factor in the nomination process (Scigliano (p. 38) 1971; Massaro 1990; Perry 1991; Yalof 1999; Abraham 2007; Nemacheck 2007; Baum 2012; O’Brien 2014).
Service as a federal judge, particularly on the federal appeals courts, can be an especially good indicator of a nominee’s qualifications. Since the mid-1980s, experience as a federal court of appeals judge has become the norm among Supreme Court nominees and it is sometimes suggested that such service has become a “requirement” for the appointment. In fact, when scholars examine the qualifications of candidates seriously considered for an appointment, it is evident that presidents are increasingly less likely to even consider candidates who lack experience on the federal courts of appeals (Nemacheck 2007).
In addition to merit, Abraham also asserted that presidents consider balancing representation when choosing nominees for the Supreme Court. A number of scholars have addressed the role representational concerns can play in presidents’ deliberations (Scigliano 1971; Schmidhauser 1979; Baum 1981; Perry 1991; Sheldon and Maule 1997; O’Brien 2014). There are several reasons presidents might be concerned about the representative nature of their appointments. They might wish to curry favor with particular religious, ethnic, or racial groups. For example, in an attempt to limit the gender gap between male and female voters in 1980, particularly female Republicans, Ronald Reagan promised that he would appoint the first female justice to the Supreme Court. When Potter Stewart announced his retirement from the Court in 1981, the year following Reagan’s election, the President sought counsel as to whether his campaign promise bound him to make such an appointment during his first opportunity to do so, or whether he could wait for another vacancy to fulfill that promise (Nemacheck 2007). Though there was debate on the question in the administration, one aide urged the president to appoint a woman to the then-open seat, arguing that it was “imperative that you appoint a woman to the Supreme Court … It means you will live up to a commitment you made and have that behind you” (Nofziger 1981, emphasis in the original). Though he did not know it at the time, had President Reagan not chosen a woman to fill that first vacancy, he would not have had another opportunity to make good on his campaign promise until after the 1984 presidential election.
More recently Hispanic groups lobbied George W. Bush to identify an Hispanic nominee and he seriously considered appointing the first Hispanic justice to the Supreme Court. Given the importance of the Latino vote, this is not surprising. And, of course, Barack Obama, who received the overwhelming majority of the Latino vote in 2008 (67 percent) and 2012 (71 percent) (Lopez 2008: i; Lopez and Taylor 2012: 4), appointed Latina Sonia Sotomayor to fill the seat left vacant by Justice David Souter’s retirement in 2009.
Another reason presidents might consider representational factors in making appointments to the Supreme Court is to shore up the institution’s legitimacy with the American public (Boyd, Epstein, and Martin 2010). A “representative” Court might achieve that legitimacy through simple descriptive representation, that is a Court that demographically resembles the American public, or the president’s goal may be to achieve substantive representation, whereby a female justice might be particularly (p. 39) concerned with women’s issues and rule differently on such issues as workplace discrimination than would a male justice, or a black justice might take a different perspective than a white justice on an issue like capital punishment, where there is ample evidence that black defendants are more likely to be sentenced to death than are their white counterparts (Pitkin 1967). A significant literature has developed as to whether substantive representation occurs (see Boyd, Epstein and Martin 2010), but regardless of the degree to which substantive representation actually occurs, presidents certainly might consider descriptive representation when choosing nominees.
For the most part, empirical analyses have not lent support to the idea that presidents choose nominees to enhance descriptive representation on the Supreme Court. In fact, Perry concludes that rather than making it more likely that a president would choose a candidate who would have made the Court more representative, based on characteristics like religion, race, and gender, these were more likely to be seen as potential obstacles to Supreme Court appointment (1991). And, many scholars have concluded that while factors such as religious representation may have historically been important, that is no longer the case (Perry 1991; Ruckman 1993; Watson and Stookey 1995; Sheldon and Maule 1997; Epstein and Segal 2005; Nemacheck 2007; Baum 2012; O’Brien 2014). However, while representational factors may not significantly affect presidents’ deliberations on a nominee under most circumstances, they might reasonably play a more important role when a president is faced with filling a vacancy for a specific “seat” on the Court (e.g., a historically Catholic, Jewish, or black seat).2
Given the presence of women and minorities on the Supreme Court today, we might expect that such factors will matter less in future appointments. For example, Justice Ginsburg certainly lamented that another female justice was not appointed to replace Justice O’Connor upon her retirement, but now that there are three female justices on the Court, the notion of a woman’s “seat” seems fairly antiquated. And, for the first time in the Court’s history, there are no Protestants on the bench. Instead, prior to Justice Scalia’s death, the 2015 Court was composed of six Catholic and three Jewish justices. It is reasonable to assume, however, that unless another African-American justice is appointed before Justice Clarence Thomas (who was appointed to fill the seat left vacant by Justice Thurgood Marshall’s retirement) steps down, the appointing president would feel significant pressure to appoint an African-American justice to replace him.
Given the modest demographic diversity on the Court, one interesting question is whether there might begin to be some demand for experiential diversity on the Court. When Justice Elena Kagan was appointed to the Court in 2010, she became the first justice without any federal judicial experience since Justice O’Connor was appointed in 1981.3 The fact that most Supreme Court nominees now come from the federal courts of appeals has not escaped either scholarly or popular media interest (Epstein, Knight, and Martin 2003; Bratton and Spill 2004; Epstein, Martin, Quinn, and Segal 2009; Liptak 2009; Barton 2012). While the selection literature assesses such experience as an important indicator of future behavior as a Supreme Court justice (Yalof 1999; Abraham 2007; Nemacheck 2007), the potential effects of having so many life-long federal judges on (p. 40) the Supreme Court, as opposed to justices who have experience on the state courts or in elected office, has generated debate (see Epstein et al. 2009).
Another characteristic scholars have found common among Supreme Court nominees is a close personal or professional relationship with the president (Scigliano 1971; Perry 1991; Sheldon and Maule 1997; Abraham 2007; Baum 2012; O’Brien 2012). Presidents do not necessarily appoint friends or colleagues due solely to cronyism or as a reward for dedicated service. In appointing friends to the High Court, presidents choose candidates they understand well and those whose future behavior they can confidently predict (Watson and Stookey 1995).
While personal or professional relationships with the president are plainly relevant, those relationships do not provide a clear advantage to particular candidates. During the modern era, approximately one-third of all individuals who make it onto presidents’ short lists for appointment to the Court could be categorized as having a personal or professional relationship with the appointing president. And, nearly the same percentage of candidates actually chosen could be so categorized (Nemacheck 2007).
There are a few possible explanations for this phenomenon. It may be that a friendship with the president improves one’s odds of being considered for appointment, a prospect that often leads to a fair bit of publicity for the candidate, but does not go so far as to yield the nomination itself. Another possibility is that concerns over accusations of cronyism makes the stakes too high to risk nominating a friend for this plum position. For example, Lyndon Johnson failed in his attempt to elevate his close friend, Justice Abe Fortas, to become chief justice. Johnson perhaps sealed his Fortas’s fate when he chose another close friend, Homer Thornberry, to fill the associate justice seat that would be left vacant by Fortas’s elevation to chief. Such cronyism would be particularly dangerous when the president faces a Senate controlled by the opposite party.
Finally, most scholars agree that ideological agreement between the president and the nominee is critical to the president’s choice of a nominee (Chase 1972; Perry 1991; Watson and Stookey 1995; Abraham 2007; Nemacheck 2007; Baum 2012; O’Brien 2014). In fact, most scholars would contend that ideology is the most important factor in presidents’ selection decisions (Pritchett 1948; Schubert 1965; Rohde and Spaeth 1976; Schmidhauser 1979; Massaro 1990; Segal and Spaeth 2002; Nemacheck 2007; Baum 2012; O’Brien 2014). And, of course, much of the research on the confirmation stage also asserts that candidate ideology itself and/or the candidate’s ideological distance from the voting senator is essential (Segal, Cameron, and Cover 1992; Epstein and Segal 2005; Massaro 1990; Ruckman 1993; Cameron, Cover, and Segal 1990; Segal and Cover 1989; Watson and Stookey 1995). Presidents recognize the importance of Supreme Court appointments and their potential to have lasting effects on public policy long after the president leaves office.
Presidents average about two Supreme Court appointments in each of their four-year terms, though some have had the opportunity to appoint far more (e.g., Roosevelt’s nine appointments is second only to George Washington’s ten), while several presidents did not have the opportunity to appoint even a single justice during their time in office (p. 41) (William H. Harrison, Zachary Taylor, Andrew Johnson, and Jimmy Carter). Sometimes even a single appointment can have significant consequences for the Court’s rulings, such as when Justice Alito replaced Justice O’Connor who was frequently the swing vote in closely decided cases. Given that the Supreme Court decided nearly one-fifth of its cases by a 5–4 margin over the last couple decades, a single appointment had the potential to change the outcome in these cases (Epstein, Segal, Spaeth, and Walker 2012).
Because presidents clearly value the opportunity to make appointments to the Court, a reasonable question for scholars studying Supreme Court appointments is whether presidents have been successful in making those appointments. Although there are many ways to define success in this context, here I refer to presidents’ ability to accurately gauge candidates’ preferences and get his like-minded nominee confirmed. Indeed, in his seminal work on Supreme Court decision-making, Herman Pritchett’s analysis implicitly acknowledged President Franklin Roosevelt’s success in appointing like-minded candidates to the Court. By examining votes in non-unanimous cases, Pritchett found that Roosevelt’s appointees tended to vote as a bloc and the preferences these votes revealed were largely in line with Roosevelt’s (Pritchett 1948).
Scholars have taken different approaches in evaluating presidential success in making appointments to the Court, but there is a large degree of consensus that presidents, particularly those who expend significant time and resources attempting to determine candidates’ ideological preferences, choose Supreme Court nominees with whom they are ideologically compatible (Scigliano 1971; Segal, Timpone, and Howard 2000; Epstein and Segal 2005; Szmer and Songer 2005; Eisgruber 2007; Nemacheck 2007). Stories of presidents’ disappointments in their nominees’ voting behavior are not uncommon, and at least partly because they are so colorful, they tend to be repeated frequently. For example, President Eisenhower’s response to a question about mistakes he made while in office is frequently cited in these discussions: “Yes, two, and they are both sitting on the Supreme Court” (Baum 1998: 45). President Theodore Roosevelt’s angry reaction to his appointee Oliver Wendell Holmes’s vote in a trust-busting case is less often cited but colorfully in line with what one might expect of Roosevelt: “I could carve out of a banana a judge with more backbone than that” (Purdum 2005).
At least one study focusing on whether a president’s Court nominees consistently voted in a unified bloc found that presidents’ appointees votes often cancelled each other out (Lindquist, Yalof, and Clark 2000). For example, President George H. W. Bush may have accurately gauged Clarence Thomas’s preferences, but was not as successful when he chose David Souter. Because Thomas’s and Souter’s votes were often at odds, the net influence on legal policy was zero. However, in several cases in which presidents were likely disappointed with decisions made by “their” justices, the presidents had lost Senate confirmation battles and were consciously choosing candidates who, while not as ideologically proximate as the president might have hoped, were more likely to garner Senate confirmation (Nemacheck 2007). For example, President Reagan nominated Anthony Kennedy to the Court after the Senate rejected his first candidate, Judge Robert (p. 42) Bork, and his second choice, Judge Douglas Ginsburg, withdrew his nomination after the press revealed he had smoked marijuana.
In other cases, justices who were once quite ideologically compatible with the president might drift left or right during their two to three decades of service on the Court (Epstein, Martin, Quinn, and Segal 2007; Owens and Wedeking 2012; Epstein, Landes, and Posner 2013). Justice Blackmun is often held up as a prime example of ideological drift for his evolution on issues like the death penalty. For example, in 1972 Blackmun dissented from the Court’s opinion striking down state death penalty statutes,4 but in a 1994 dissent he stated his opposition to the death penalty altogether writing that he would “no longer tinker with the machinery of death.”5
The growing literature on Supreme Court appointments provides a fuller understanding of the factors important in selection and confirmation, and perhaps most importantly, the explicit connection between the two stages (Scigliano 1971; Chase 1972; Schmidhauser 1979; Massaro 1990; Moraski and Shipan 1999; Nemacheck 2007). Focusing on either stage without regard to the other misunderstands the broader process. The argument that the very high rate at which the Senate confirms Supreme Court nominations evinces congressional deference to the president’s constitutional appointment power misses entirely the important foundation on which administrations build during the selection stage. Due to the Senate’s constitutional prerogative to advise the president and potentially consent to a nominee, presidents have an incentive to consult with members of Congress as they choose their nominees. Presidents are wise to anticipate senators’ reactions to a nominee, to involve key members in discussion, and to choose candidates they believe the Senate will confirm, especially when they are less certain about the confirmation environment.
One interesting direction for future research concerns the ways candidates might try to position themselves for appointment to the Court. Given the prominence of federal court judges among those considered for the Court, scholars have begun to examine whether courts of appeals judges, aware that they may be under consideration for appointment to the Court, modify their behavior (i.e. campaign) to improve their chances of being selected (Black and Owens 2016). That work, in turn, informs research on presidents’ ability to accurately gauge candidates’ ideology when considering them for appointment to the Court. Campaigning federal court judges could make it more difficult for presidents to choose candidates whose sincere preferences align with the presidents’ and continue to do so throughout their tenure on the Court (Epstein, Martin, Quinn, and Segal 2007; Owens and Wedeking 2012).
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(1.) This is a gross simplification, but for the purposes of this discussion the rather crude delineation of legal formalism and legal realism is sufficient. For much more in-depth analyses of the debate between formalism and realism, see Dworkin (1977) and Posner (2008).
(2.) When examining representational effects in appointment to such seats, the evidence still fails to indicate a statistically significant role for a candidate’s race, sex, or religion in the appointment process. However, this may well be an artifact of the small number of these seats over the Court’s history (Nemacheck 2007, 2008).
(3.) Although Harriet Miers, who also lacked federal judicial experience, or any judicial experience for that matter, was nominated by President George W. Bush in 2005, her nomination was widely criticized and she withdrew from consideration prior to a vote on her candidacy. The criticism of Miers was largely levied at Bush for having chosen someone whom his base found lacking in conservative bona fides. Of course, experience on the federal courts of appeals would likely have led to fewer concerns both over her qualifications and her ideological preferences.
(4.) Furman v. Georgia, 408 U.S. 438 (1972) (Blackmun, J., dissenting).
(5.) Callins v. Collins, 510 U.S. 1141, 1145 (1994) (Blackmun, J., dissenting).