Confirmation ProcessHow are Supreme Court justices appointed to the High Court?
Article II, Section 2 provides that the president of the United States shall have the power to nominate “Judges of the Supreme Court.” In fact, Article II provides that the President has the power to nominate all federal judges.
The Constitution also provides that the United States Senate shall provide “Advice and Consent.” This means that the President’s judicial nominees must be confirmed by the Senate.
What factors go into the selection of a Supreme Court justice?
Ideology and politics play key roles, as generally a President selects a Justice who is from his or her own political party. Age also plays a key role, as oftentimes a President wants to select someone who is not too old – who will be able to potentially serve on the Court for a significant amount of time.
David M. O’Brien in his book Storm Center: The Supreme Court in American Politics explained: “The reality is that every appointment is political. Merit competes with other political considerations like personal and ideological compatibility, with the forces of support or opposition in Congress and the White House, and with demands for representative appointments on the basis of geography, religion, race, gender, and ethnicity.”
Does a Supreme Court justice need prior judicial experience?
No, there is nothing in the Constitution that requires a Supreme Court nominee to have prior judicial experience. In fact, there is actually nothing in the Constitution that says they have to graduate law school or be a lawyer.
Many famous justices – such as Louis Brandeis, Felix Frankfurter, John Marshall and Roger Taney among them – never had prior judicial experience before joining the bench.
What is the confirmation process?
After the President nominates a candidate to the U.S. Supreme Court, the U.S. Senate either confirms or denies the nominee. The Senate Judiciary Committee gathers extensive information about the nominee, holds hearings, and eventually votes on whether to move the candidate on for a full Senate vote. The confirmation process can be quite difficult and lengthy depending on how controversial the candidate is deemed to be by Congress, their constituents, and interested public interest groups. It only takes a majority vote for a candidate to win confirmation. However, twenty-six nominations by Presidents have not been successful. The Senate rejected twelve appointments to the Court by formal full vote. Those twelve, and the Senate’s rejection vote tally, were:
| John Rutledge (1795) | rejected 14-10 |
| Alexander Wolcott (1811) | rejected 24-9 |
| John C. Spencer (1843) | rejected 26-21 |
| George W. Woodward (1845) | rejected 29-20 |
| Jeremiah Black (1860) | rejected 26-25 |
| Ebenezer R. Hoar (1870) | rejected 33-24 |
| William B. Hornblower (1893) | rejected 30-24 |
| Wheeler Peckham (1894) | rejected 41-32 |
| John J. Parker (1930) | rejected 41-39 |
| Clement F. Haynesworth (1969) | rejected 55-45 |
| G. Harrold Carswell (1970) | rejected 51-45 |
| Robert Bork (1986) | rejected 58-42 |
What justices have withdrawn their names from consideration because of Senatorial opposition?
Not all Supreme Court nominees even make it a full vote. Some of the nominees withdraw their name from consideration when it is clear that they will face significant and perhaps overwhelming Senatorial opposition. The following Supreme Court nominees withdrew their names from consideration:
Reuben H. Walworth (1844)
Edward King (1845)
George H. Williams (nominated in 1873, withdraw in 1874)
Caleb Cushing (1874)
Abe Fortas (1968) (for chief justice)
Douglas H. Ginsburg (1987)
Harriet Miers (2005)
What famous judge did not get confirmed in 1987?
Judge Robert Bork, a former constitutional law professor and federal appeals court judge, did not get confirmed in 1987, as the Senate voted 58-42 against him. Many in the Senate considered Bork too conservative and too restrictive of individual rights to serve on the High Court. Senator Edward Kennedy famously impugned Bork with the following statement: “Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors.” Kennedy’s comments were exaggerated but they made an impact on the televised confirmation proceedings. In fact, it was said that Robert Bork got “Borked.”
Bork’s supporters thought he got a raw deal during the confirmation process. For example, Senator John Danforth of Missouri said of Bork: “'What has happened to Robert Bork is wrong. The man's been trashed in our house. Some of us helped generate the trashing, others yielded to it, but all of us are accomplices.''
Why did Judge Douglas H. Ginsburg withdraw his Supreme Court candidacy?
Judge Douglas H. Ginsburg, who at the time was a relatively new judge on the U.S. Court of Appeals for the D.C. Circuit, withdrew his name from Supreme Court consideration when it was revealed by the media (Nina Totenberg on NPR) that Ginsburg had engaged in marijuana usage as a student and then later when he was an assistant professor of law at Harvard Law School.
Ginsburg had a stellar academic record and had worked in the Reagan Administration in 1983 before being elevated to the D.C. Court of Appeals. However, the revelations about his personal marijuana usage, particularly as a professor, was too much at that time in the mid to late 1980s when the Reagan Administration had such a strong anti-illegal drug stance.
Ginsburg withdrew his name, as mounting pressure came from both outside and inside the Reagan Administration. He stated to reporters: “'I have today asked President Reagan not to forward my nomination to the Supreme Court. .. I was looking forward to sharing with the American people my views about justice and about the role of the courts in our society. Unfortunately, all of the attention has been focused on our personal lives, and much of that on events of many years ago. My views on the law and on what kind of Supreme Court Justice I would make have been drowned out in the clamor.''
What female lawyer withdrew her nomination after significant opposition?
Harriet Miers, White House Counsel to President George H.W. Bush, withdrew her nomination to the U.S. Supreme Court after significant opposition. Miers graduated from Southern Methodist University’s Law School and served on law review there. She then clerked for a federal district court judge after graduation. She practiced law for decades, becoming the first female managing partner at the Dallas-based firm Locke, Liddell & Sapp.
She also was the first female president of the Dallas Bar Association and the Texas State Bar Association. Bush named her his White House Counsel to succeed Alberto Gonzales, who Bush named as his U.S. Attorney General. “I’ve known Harriet for more than a decade,” said Bush. “I know her heart. I know her character.”
Many criticized Miers because she had no prior judicial experience and did not attend one of the elite law schools. Some prominent conservatives, including Robert Bork, opposed her nomination publicly. She withdrew her name from consideration after only 24 days.
In his memoir, True Faith and Allegiance, Gonzales writes: “I failed to appreciate the difficult challenges created by the nomination of a former or current White House counsel. The U.S Senate would want to see Harriet’s internal memos, as well as sensitive documents she had reviewed.… Such a nomination sets the White House on a collision course with the Senate over access to documents the president would want to protect as privileged.”
Do Presidents generally nominate persons from their same political party?
Yes, Presidents generally nominate a person from their own political party. President Washington actually began the general process of appointing those to the Court who shared his general ideological bent. For example, President Washington was a Federalist and he appointed fellow Federalists to the U.S. Supreme Court.
There have been a few exceptions to this practice historically, however, For example, President John Tyler, of the Whig Party, nominated Democrat Samuel Nelson to the U.S. Supreme Court. President Franklin Delano Roosevelt, a Democrat, nominated Republican Harlan Fiske Stone to the Court. President Warren Harding, a Republican, nominated Democrat Pierce Butler. President Dwight D. Eisenhower, a Republican, nominated William Brennan, a Democrat, to the U.S. Supreme Court. In more modern times, it would be unthinkable for a President to nominate a person not from his or her own political party to the U.S. Supreme Court.
Who generally helps a President with selecting Supreme Court nominees?
Most Presidents have delegated selection of Supreme Court nominees to their U.S. Attorney Generals and other close advisors in the White House. Often times, an assistant attorney general in the Office of Legal Counsel might generate a list of potential candidates. Presidents generally will have a committee of individuals who then vet these individuals and present the President with a top three. The President often will then interview those in the top three and determine who to nominate officially. However, this is a generalization. Not all Presidents have operated in the same fashion when it comes to picking nominees. Some Presidents have nominated their close friends and other Presidents take a very hands-on approach in the beginning.
What qualifications must a federal judge possess?
The Constitution provides no criteria or qualifications for federal judges. Technically, a non-lawyer with no legal experience could be appointed to the U.S. Supreme Court. However, Congress and the Department of Justice carefully review nominees to determine if they have the requisite degree of professional accomplishment and experience necessary for the lofty position. Most of the judges have a record of outstanding professional achievement, key political connections, and a history of public service in some capacity. Many appellate judges have had some prior judicial experience. For example, all nine justices of the U.S. Supreme Court previously had some form of judicial experience before they served on the U.S. Supreme Court.
What Supreme Court justice in the 20th century did not have a law degree?
Justice Stanley Reed, who served on the Court from 1938 to 1957, did not have a law degree. He studied law at both the University of Virginia and Columbia Law School but did not graduate. He apprenticed for a lawyer in Kentucky and then became admitted to the Kentucky Bar in 1910. He began his law practice in Maysville, Kentucky, before entering politics.
What is the role of the American Bar Association in the Supreme Court nomination/confirmation process?
The American Bar Association, the largest professional trade association of lawyers, has played a significant role in the nomination/confirmation process. The ABA’s Standing Committee on the Federal Judiciary, composed of 18 members, has conducted independent, nonpartisan and comprehensive evaluations of the professional qualifications of nominees to the federal bench since 1953.
Until 2001, Presidents generally consulted with the Standing Committee regarding proposed nominees. In March 2001, President George W. Bush took a different stance. He reasoned that “it would be particularly inappropriate … to grant a preferential, quasi-official role to a group, such as the ABA, that takes public positions on divisive political, legal, and social issues that come before the courts.” However, the Senate Judiciary Committee asked the ABA Standing Committee on the Federal Judiciary to continue reviewing those nominated for federal judgeships.
The ABA explains: “The Standing Committee does not propose, endorse or recommend nominees. Its sole function is to evaluate a nominee’s integrity, professional competence and judicial temperament, and then to rate the nominee either “Well Qualified,” “Qualified” or “Not Qualified.” It does not base its rating on or seek to express any view regarding a nominee’s ideology or political views.”
Whose confirmation process in the early part of the 20th century was especially contentious?
Justice Louis Brandeis’ confirmation was especially contentious even though everyone knew Brandeis was eminently qualified to serve on the Court. President Woodrow Wilson nominated Brandeis in January 1916, but there was widespread opposition to Brandeis, in part because he was considered to be anti-business and, sadly, because of anti-Semitism.
Many opposed Brandeis because he was pro-union and fought for individuals against Big Business. In fact, Brandeis once gave a speech in which he said there were too many lawyers for corporations and not enough lawyers for the people. William Howard Taft, the sitting Chief Justice, actually wrote President Warren G. Harding about Brandeis: “Mr. Louis Brandeis is not a person to be a member of the Supreme Court.”
Brandeis eventually was confirmed by a vote of 47 to 23 and became the first Jewish Justice to serve on the Court.
What judge failed to get confirmed in 1930 partly because of opposition from the NAACP?
Judge John Parker, a prominent federal appeals court judge on the Fourth Circuit Court of Appeals, was rejected by the U.S. Senate in 1930. The NAACP opposed Parker based on racist comments he made ten years earlier in a 1920 gubernatorial campaign. While running for governor of North Carolina, Parker allegedly said: “The participation of the Negro in politics,” said Parker, “is a source of evil and danger to both races and is not desired by the wise men in either race or by the Republican Party of North Carolina.”
The Senate’s rejection of Parker was the only time between the years 1894 and 1968 that the Senate rejected a U.S. Supreme Court nominee.
Does a person need prior judicial experience to serve on the Supreme Court?
No, there is nothing in the Constitution – or anything else – that requires a Supreme Court Justice to have had prior judicial experience. In fact, Justice Felix Frankfurter once stated: “One is entitled to say without qualification that the correlation between prior judicial experience and fitness for the Supreme Court is zero.” In fact, some of the greatest Justices in Supreme Court history --- John Marshall and Earl Warren to name two prime examples – had no prior judicial history before ascending to the High Court.
What associate justice was not confirmed to chief justice – and eventually resigned from the Court altogether?
Justice Abe Fortas served as an associate justice from 1965 to 1969. President Lyndon Baines Johnson appointed him to replace Justice Arthur Goldberg, who left the Court to serve as the United States representation to the United Nations. President Johnson nominated him to be Chief Justice to replace the departing Chief Justice Earl Warren.
However, Fortas ran into trouble during the confirmation process, as it was discovered that he had accepted $15,000 for nine lectures delivered at American University Washington College of Law while an associate justice. Some conservative members of Congress questioned whether it was proper for Fortas to receive this money, as the money came not from the university itself but from private businesses that might have interests before the Court.
Then, another matter of controversy arose during the confirmation process. It was discovered that Fortas had accepted money – a $20,000 retainer from the Wolfson Foundation for advice. Louis Wolfson was a Wall Street financier who was a source of controversy for alleged securities law violations. Though Fortas returned the money, members of Congress who opposed Fortas seized upon this as evidence that Fortas was unfit for not only the Chief Justice but also to sit on the Court.
Author Michael Bobelian writes in his book Battle for the Marble Palace: Abe Fortas, Earl Warren, Lyndon Johnson, Richard Nixon and the Forging of the Modern Supreme Court: “Fortas’ nomination fundamentally altered the Court, turning the selection of justices into high-stakes contests over the future of the nation.”
Under increasing congressional criticism and scrutiny, Fortas resigned from the Supreme Court in 1969. However, Fortas maintained that he did not do anything wrong. He wrote: “It is my opinion, however, that the public controversy relating to my association with the Foundation is likely to … adversely affect the work and position of the Court. … In these circumstances … it is not my duty to remain on the Court but rather to resign in the hope that this will enable the Court to proceed … free from extraneous stress.”
Historians have advanced the theory that Fortas fell on his sword in part to protect his friend and mentor, U.S. Supreme Court Justice William O. Douglas.
What federal judges, nominated by President Richard Nixon, were rejected by the U.S. Senate?
President Richard Nixon’s first two nominees for the U.S. Supreme Court, C. Clement Haynesworth and G. Harrold Carswell, were both rejected by the U.S. Supreme Court. Haynesworth was a judge on the U.S. Court of Appeals for the Fourth Circuit, while Carswell was a judge on the U.S. Court of Appeals for the Fifth Circuit and before that a federal district court judge in Florida. The Senate rejected Haynesworth 55-45 in 1969 and Carswell 51-45 in 1970.
Why did the Senate reject Haynesworth?
Both the AFL-CIO and the NAACP opposed Haynesworth’s nomination to the U.S. Supreme Court. They argued that Haynesworth made rulings that were anti-union and that supported segregation. Several Democratic senators also questioned whether Haynesworth had made rulings in cases in which he had business interests – a charge that was not proven.
Some argue that many Democrats opposed Haynesworth as payback for many of their Republican counterparts, actions against Justice Abe Fortas. In fact, John P. Frank in his book Clement Haynsworth, the Senate, and the Supreme Court (1991) wrote: “in both labor relations and civil rights, Haynsworth was no reactionary. He was not a racist, and he was not antilabor. But he did have a conservative outlook in both areas, and he had a track record of reversals which made him easy to attack.”
What Supreme Court nominee was defended by a Senator as being mediocre?
Senator Roman Hruska, a Republican Senator from Nebraska, famously said this of U.S. Supreme Court nominee G. Harrold Carswell, a federal judge from Florida: “Even if he is mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation aren’t they and a little chance? We can’t have all Brandeis’, Cardozos and Frankfurters and stuff like that there.”
The Senate rejected Carswell 45-51.
