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Supreme Court Nominations: Questions and Answers

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  • Greg Cannon
    http://hnn.us/articles/13194.html 7-18-05: History Q & A Supreme Court Nominations: Questions and Answers By HNN Staff Direct Textbooks Textbook resource
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      7-18-05: History Q & A

      Supreme Court Nominations: Questions and Answers
      By HNN Staff

      Direct Textbooks Textbook resource center

      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.)
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