Choosing Justices: How Presidents Decide

Abstract

Law. An earlier version of this paper was presented as part of a panel discussion on selection of federal judges at the Southeastern Association of Law Schools annual meeting on August 7, 2009. I benefited from the discussion by my fellow panelists Bill Marshall and Ron Rotunda and by those in attendance. I am grateful to Mark Killenbeck and Brad Snyder for very helpful comments on a more recent draft and to Stacy Osmond for research assistance. Choosing Justices: How Presidents Decide Presidents of the United States play the critical role in determining who serves on the Supreme Court. Although the Constitution subjects these presidential nominations to the advice and consent process, the Senate's role, though important, is reactive and secondary. Only the president can nominate and that power confers a huge advantage in composing the Court. 1 Presidential nominees to the Court almost always win confirmation. Since 1900, about 87% of those selected as nominees for the Court were confirmed. 2 This high rate of presidential success does not mean that a president has carte blanche in choosing a nominee. As will be shown below, the success rate traces in part to presidential skill in choosing confirmable candidates. Nonetheless, the figures confirm that the Court's composition correlates closely to decisions presidents make regarding who to nominate. The impact of those presidential decisions reverberates for generations. Those chosen generally remain on the Court well beyond the term (and often the life) of their benefactor. Justices William Brennan and Byron "Whizzer" White, for instance, served during the tenures of eight presidents; Justice (and Chief Justice) William Rehnquist overlapped seven. These two factors, the president's dominance of Supreme Court selection and the lengthy service of those he chooses, interact with a third variable to compound the significance of the subject. The Court's position atop the judicial hierarchy affords its nine members extraordinary