chapter  1
17 Pages

Selecting Justice: Strategy and Uncertainty in Choosing Supreme Court Nominees: Christine L. Nemacheck

WithCHRISTINE 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.