May 22nd, 2009
01:18 PM ET
6 years ago

Supreme Court confirmations a mix of politics, tradition

Supreme Court confirmations entail a rare convergence of the highest levels of all three branches of government.
Supreme Court confirmations entail a rare convergence of the highest levels of all three branches of government.

WASHINGTON (CNN) - A vacancy on the U.S. Supreme Court triggers a rare convergence of the highest levels of the executive, legislative, and judicial branches.

The President nominates a candidate, the Senate holds confirmation hearings and ultimately votes, and then the Chief Justice traditionally swears in the newest member of the nine-person panel.

Constitutional requirements, long-standing tradition, as well as a heavy mix of partisan politics, speculation, and public theater mark the process.

The White House

The process begins when a justice leaves the bench. Article II, Section 2 of the Constitution provides for the president alone to nominate a candidate to fill the vacancy.

And unlike federal district and appeals courts, where candidates often emerge from strong home-state input by Congressional members, Supreme Court slots are managed and vetted exclusively by presidential aides and the Justice Department's Office of Legal Counsel (OLC).

Among those who worked in the OLC screening potential candidates was the late Chief Justice William Rehnquist, back in 1969.

In charge is the White House Counsel's office, which has traditionally kept a ready "short list" of possible replacements. In its early stages, these closely held lists have typically been informal, unranked, and the individuals on them have rarely been notified they are even on it. The Obama team is currently working off such a list as it narrow the field of candidates.

Once a vacancy occurs, staff begin formally researching a list of candidates: analyzing past judicial experience and rulings; their speeches and writings; personal history; often even speaking with friends and colleagues over personality traits and interests.

Names are added, and taken off the list. The goal is to develop a profile pointing out strengths and weaknesses, benefits and obstacles of the top-tier candidates.

When David Souter - whose Supreme Court seat he will soon vacate - was being considered in 1990, his home state U.S. senator Warren Rudman reportedly told President Bush, "I can assure you that he has no skeletons in his closet."

Timing is important. "Part of it is the paper trail," says David Yalof, author of "Selecting Justices" and a University of Connecticut law professor. "The earlier the name gets out, the earlier the president can frame the choice to his benefit. It puts the Senate opposition on the defensive since they won't have time to rally their side against a particular choice."

That was true when liberal Justice William Brennan resigned unexpectedly in July 1990. Just three days later, President George H.W. Bush nominated Souter, a little known federal appeals judge from New Hampshire.

His lack of a ready paper trail made his confirmation relatively easy, and he has staked out generally liberal positions on the bench. Conservatives have since complained the Bush White House should have taken more time probing Souter before nominating him.

President Reagan also wasted little time when Justice Lewis Powell retired from the bench in June 1987. Less than a week later, outspoken federal appeals judge Robert Bork was tapped. But Bork's conservative record was extensive, and controversial. The Senate rejected him in October, and it was four months before Reagan's second, more moderate choice, Anthony Kennedy, took his place on the Court.

By contrast, President Clinton took five weeks to decide before nominating Stephen Breyer, after Justice Harry Blackmun announced his resignation. But Breyer, backed by a Democratic-controlled Senate, had little trouble during confirmation.

Presidents and their top staff traditionally meet with the top remaining candidates in person, better to judge their personality and temperament. Few presidents would admit to any strict "litmus test" or requirement on a specific legal or political point that a nominee must pass before being chosen.

In her 2003 book, "The Majesty of the Law," Justice Sandra Day O'Connor relates how she found out she was a candidate: a week after Justice Potter Stewart announced his June 1981 retirement, O'Connor got a call from Attorney General William French Smith.

"The metaphorical lightning bolt suddenly seemed as if it might head in my direction," she writes, "and I was about as astonished, though slightly less frightened, as if I had seen a real bolt of lightning making its way straight for me."

She secretly left her Arizona home to meet in person with President Reagan and other officials, and 12 days after that first phone call, Reagan called to offer her the nomination. "I said I would be honored if he did," said O'Connor, who retired in 2005.

The Congress

After the nomination is announced, it is sent in writing to the Senate for consideration, which ultimately will vote on the candidate. The Constitution, in its customary brevity, gives the Senate "advice and consent" power over federal court candidates. Senate leaders, including those on the Judiciary Committee, are typically informed about which candidates are being considered by the White House. The House of Representatives plays no formal role in the nomination process.

The Senate Judiciary Committee holds public hearings into the candidate, but it was not always so. As O'Connor recalled in a 2003 CNN interview, "For more than half of the history of the Court, the Senate committees never asked the judicial nominees any questions at all. And it wasn't until about the time Justice Brandeis was nominated [in 1916] that the Judiciary Committee in the Senate asked him some questions. And then began the process of actually holding hearings, public hearings on it, in which the nominee was going to be in attendance and respond to questions."

Confirmation hearings, however, were closed to the public until 1929, in an effort to "promote candor," according to the Senate Historian. A total of 148 presidential nominations to the Supreme Court have been sent to the Senate, which rejected 28 of them. All but six of those rejections occurred before the 20th century.

Various individuals and groups are given a chance in open hearings to voice their support or opposition. Then the nominee is brought out to answer a variety of questions. He or she can be asked about specific rulings, or any aspect of their private and professional lives deemed appropriate. Senators often press nominees for their personal and legal views on a variety of hot-button issues, from abortion to affirmative action. The questions typically revolve around a previous Court ruling, such as whether the Miranda warnings, giving criminal suspects the right to remain silent, should be overturned. If the candidate comes prepared, he or she can usually often avoid controversy with reassuring but non-specific words– affirming their judicial independence and their desire to review judicial cases on their strict legal merits, without prejudice or preconceptions.

Colleagues of Souter say during his confirmation hearings, he privately vowed not to discuss how he would rule in future cases, and refused to take a "litmus test" on any issue. He did not have to worry. Souter was considered a master of addressing tough questions by not really answering them, to the open displeasure of a few lawmakers. On whether he would oppose a women's right to an abortion, Souter said, "I have not got any agenda on what should be done with Roe v. Wade, if that case were brought before me. I will listen to both sides of that case. I have not made up my mind. And I do not go on the Court saying I must go one way or I must go another way."

Ruth Bader Ginsburg however in her 1993 confirmation, openly voiced her support for abortion rights. Only three senators wound up voting against her.

The nominee is often assigned a Senate sponsor, someone who can help maneuver through the procedural and personal workings of the legislative process. The senator can serve as a liaison between the nominee, the White

House and the other lawmakers whose votes will ultimately decide everything. Sponsors help prepare nominees for the kinds of questioning he or she will encounter, and informally counts votes, anticipating any problems.

Seven of the last eight Court nominees averaged only about a week being quizzed by the Judiciary panel. The exception was Clarence Thomas. His sponsor was the respected Republican moderate John Danforth, who was called on to defend Thomas' resumé and reputation. His nomination was nearly derailed after Anita Hill, a former colleague of Thomas at the Equal Employment Opportunity Commission came forward to accuse him of sexual harassment. Days of contentious hearings followed, televised live across the nation.

Some senators have privately said it could take up to two months or more to prepare for hearings on the next nominee.

Regardless of how the Judiciary Committee votes, the full Senate is given a chance to vote up or down on the nominee. But Republicans have at their disposal a relatively new tactic, the threat of a filibuster.

President Bush overcame Democratic filibuster threats in 2003 to name two stalled nominees to the federal appeals court: Charles Pickering of Mississippi and former Alabama Attorney General William Pryor. The president was roundly criticized by the Senate opposition.

President Eisenhower used recess appointments to put three of his nominees immediately on the Supreme Court. Chief Justice Earl Warren, and Justices William Brennan and Potter Stewart were later confirmed easily, and the move was not viewed as a partisan political maneuver.

Outside Groups

The American Bar Association has for the past half century evaluated candidates for the federal judiciary, including those nominated to the Supreme Court. A special panel gives ratings of "well qualified," "qualified," and "not qualified." "Professional competence, judicial temperament, and integrity" are among the criteria. These evaluations are provided to the Justice Department and the Senate Judiciary Committee, which holds confirmation hearings for federal judicial candidates.. These evaluations are not binding, and have been given varying amounts of sway when choosing and considering nominees. In 2001, the Bush Administration announced it would not provide names of judicial candidates to the ABA before their nomination. But the group continued its evaluation process.

Other outside interest groups play a role in the confirmation process– directly and indirectly. Many of these groups are invited to testify during confirmation hearings, lending a partisan flair. During the 1991 hearings for Clarence Thomas, the Republican Black Caucus, Concerned Women for America, and the Professional Bail Agents Association were among those testifying on his behalf. The National Association of Criminal Defense Attorneys, Americans for Democratic Action, and the National Black Women's Health Project spoke out against him.

Interest groups have also been readying their own background checks of potential candidates. "We think the American people deserve a serious debate, there are serious questions, we think they deserve serious answers," said Gary Marx of the conservative Judicial Confirmation Network. "We are going to engage them [liberals] in that debate and we are going to be using technology to do that, we are going to be using older media techniques like TV and radio, and we are going to make sure that we do that."

Media ads, direct mail and phone solicitations, protests and marches have accompanied some of the more contentious hearings.

The stakes, all agree are enormous.

"It's impossible to overstate the importance of a Supreme Court appointment because of the justices' power, they decide things like abortion, affirmative action, gay rights, the meaning of all the laws involving the detainees at Guantanamo Bay, presidential power, wiretapping," said Thomas Goldstein, a leading Washington appellate attorney and co-founder of scotusblog.com. "The list goes on and on and a lot of the cases are decided by 5-4 votes where a single justice makes all the difference in the outcome."

The Final Step

In the end, a successful nominee has one more piece of business: the official swearing in at the Supreme Court building by the Chief Justice. The President, attorney general, solicitor general, selected members of Congress, and the other justices by tradition attend.

The oath goes: "I, [NAME], do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as [TITLE] under the Constitution and laws of the United States. So help me God."

Justices serve as long as they desire, or as the Constitution phrases it, allowing them to "hold their Offices during good Behavior."


Filed under: Supreme Court
soundoff (8 Responses)
  1. fools, fooled by obama

    i wouldn't put it past this clown you people elected to nominate himself, after all he IS the anoited one.

    May 22, 2009 01:29 pm at 1:29 pm |
  2. Sniffit

    I fully expect it to be a completely irritating hearing process. The GOP is going to attempt to stall stall stall and make the appointment take as long as it possibly can so they can grandstand on wedge issues and prevent other important work from being done. It may be a bit of a stretch, but I wouldn't be shocked to find out that some of them even suggested at one of their strategery meetings that they attempt prevent to anyone from being appointed until 2012 in case they actually win back the WH.

    May 22, 2009 01:44 pm at 1:44 pm |
  3. Michele

    Sure hope he finds someone who can be true to that vow...instead of people who were chosen because they agreed with the President's beliefs and acted as such on the bench.

    May 22, 2009 01:46 pm at 1:46 pm |
  4. katiec

    Can just see it now. Regardless of the qualifications of the nominee the republicans will fight their appointment tooth and nail.
    Once again, their lack of cooperation and concern for our country
    will be extremely obvious.

    May 22, 2009 02:01 pm at 2:01 pm |
  5. phoenix86

    Obama is carefully looking for the most qualified handicapped-black-lesbian of hispanic descent he can find.

    May 22, 2009 02:15 pm at 2:15 pm |
  6. TomJay

    I can't wait for the borking to begin. Should be fun. Or maybe some mirrors on the Clarence Thomas hearings.

    May 22, 2009 02:28 pm at 2:28 pm |
  7. Rob in Detroit Mi.

    Ward-Sears should get the nod she is everything the president is looking for.

    May 22, 2009 02:44 pm at 2:44 pm |
  8. J.P.

    The constitution doesn't matter.
    Neither does precident nor law.

    What really matters is empathy and feeeeeeeeeeeeeeeelings. That's what I want my Supreme Court justices making decisions based upon.

    I thought Lady Justice was blindfolded for a reason.

    May 22, 2009 02:50 pm at 2:50 pm |