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7-18-05: History Q & A



Supreme Court Nominations: Questions and Answers

By HNN Staff



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How many people have been appointed to the Supreme

Court?



As of July 2005 108 people have been appointed to the

Court.



Do presidents usually pick their friends?



Until recently, president usually picked people for

the High Court with whom they were personally

familiar. According to Lyn Ragsdale, "Franklin

Roosevelt, Harry Truman, John F. Kennedy, and Lyndon

Johnson had a personal relationship with nearly every

Court nominee they submitted to the Senate. [But]

Richard Nixon, Ronald Reagan, George [H.W.] Bush, and

Bill Clinton, all of whom were more concerned with the

ideological credential;s of their candidates, were

less likely to know their nominees personally."



When did presidents begin selecting nominees on the

basis of their race, gender or religion?



On July 14, 2005 NYT columnist David Brooks urged

President Bush not to base his selection of a nominee

to the Supreme Court on the basis of their sex or race

or any other similar criterion. "Nobody," he wrote,

"will care about superficial first impressions or

identity politics tokenism a few years from now."

Through most of our history presidents did not indeed

worry about the race, gender or religion of the

nominees. The pool of acceptable candidates was

delimited in such a way that the question never arose.

Blacks, women, Catholics and Jews were not primary

players in politics or the courts. It didn't occur to

presidents to consider them for the Supreme Court. But

this is not to say that presidents did not apply

certain tests to the nominees. They did. Most

important of all tests in an era when sectionalism was

central to American politics was the the nominees'

geographical origins. Thus, George Washington selected

James Iredell to the Court in 1790 because Iredell was

from North Carolina and no one from North Carolina had

yet been appointed to the Court. According to James

Thomas Flexner, Washington's biographer, Washington's

criteria for nominees were "personal merit; services

and sacrifices rendered during the Revolution; a claim

to an office due to having bee the incumbent when the

new government was established; and three matters of

great moment to the general acceptance of the

Constitution: geographic distribution, sympathy with

the federal Union, and local popularity."



The immigration of millions of Catholics into the

United States at the end of the nineteenth century

changed the calculations of presidents. In 1898

William McKinley selected a Catholic for the

Court--Joseph McKenna--in a naked bid to wean Catholic

voters from the Democratic Party. The selection was

inauspicious. McKenna, a McKinley crony who had served

as attorney general, was unimpressive. His biographer

wrote, "He was a poor lawyer and he knew it." But from

then on there would almost always be a Catholic would

sit on the Supreme Court.



The first Catholic appointed to the Court was Roger

Taney, who was nominated by Andrew Jackson. Woodrow

Wilson selected the first Jew: Louis Brandeis. Lyndon

Johnson selected the first black: Thurgood Marshall.

Ronald Reagan selected the first woman: Sandra Day

O'Connor.



How many presidents have had the opportunity to select

a justice?



All but four presidents--William Henry Harrison,

Zachary Taylor, Andrew Johnson and Jimmy Carter--have

had the opportunity to select a member of the Supreme

Court. George Washington appointed the most: 11,

followed next by FDR (9), and William Howard Taft (6).

(Taft later served as chief justice, where he was much

happier than he was as president, by all accounts.)

Carter was the only full-term president not to have

the opportunity to select a justice (just a few months

after Carter left office Potter Stewart resigned,

opening up the seat taken by O'Connor. Stewart had

been appointed by Dwight Eisenhower. Like many other

justices, he apparently timed his resignation so that

a president of his own party could select a

replacement.)



How many nominees have been rejected by the Senate?



The Senate has the right to approve every nomination

to the Supreme Court by majority vote. In the 19th

century, when the Senate was vastly more powerful than

it is today, senators frequently rejected a

president's nominees. In the 20th century rejections

have been rare. In all an even dozen nominees were

rejected by the Senate, and even more were forced to

withdraw (9). Eight nominations were postponed



The first president to face Senate opposition to a

nominee was George Washington. In 1795 the Senate

rejected his nomination of John Rutledge, the man who

had seconded Washington's nomination as president of

the constitutional convention. Rutledge was rejected

because of his heated opposition to the controversial

Jay Treaty. The Senate rejected two of Grover

Cleveland's nominations and two of Nixon's.

Cleveland's two nominees were rejected says Trevor

Parry-Giles, author of a forthcoming book on judicial

nominations, "simply because Cleveland and New York

Senators Hill and Murphy were at odds, and the

senators torpedoed the nominees."



But the president who faced the most opposition was

John Tyler, who became president upon the death of

William Henry Harrison. Tyler, who lacked support in

the Senate on account of his strong states' rights

views, submitted the names of six people for an

opening on the Court. The first time the Senate

rejected his nomination outright. Three times he was

forced to withdraw the nomination. And on another

occasion he was forced to postpone it. On the sixth

try he finally succeeded.



Have presidents always chosen members of their own

party?



Although it is said that the Supreme Court is above

politics, the selection of the members of the Court

has always been influenced by politics. Almost always

presidents select people of their own party.

Presidents have only appointed 14 justices from the

opposition's party (out of 112 justices in all).



Have presidents ever made a recess appointment to the

Supreme Court?



In all there have been fifteen recess appointments to

the Supreme Court. According to C. Calvin Mackenzie,

"only five actually participated in the work of the

Court before Senate confirmation, four were later

confirmed by the Senate and one, John Rutledge, was

denied confirmation by the Senate in 1795. In 1960,

however, the Senate passed a sense of the Senate

resolution, introduced by Senator Philip A. Hart,

which stated that recess appointments should not be

made to the Supreme Court 'except under unusual

circumstances and for the purpose of preventing or

ending a demonstrable breakdown in the administration

of the Court's business.' "



Do presidents usually select people who are already

jurists?



The Constitution does not require that a justice on

the Supreme Court have previous experience as a judge.

Indeed, the Constitution doesn't require that justices

even be lawyers. In the 1960s Walter Lippmann was

repeatedly mentioned as a possible candidate for the

High Court even though he lacked a legal degree and

had never served as a judge. Fewer than half of the

108 people who have served on the Court had previous

experience as judges. "And while judges do make up the

biggest single biographical category," according to

the NYT's Linda Greenhouse, "there have also been 25

practicing lawyers, 9 attorneys general or deputy

attorneys general, 7 holders of other cabinet

positions, 6 senators, 2 members of the House of

Representatives, 3 governors, 2 solicitors general and

2 law professors." All of the current members of the

Court except for Chief Justice William Rehnquist had

served as judges before joining the Court. (Rehnquist

was an assistant attorney general when Richard Nixon

put him on the Court in 1971.)