Supreme Court Nominations: Questions and Answers

by HNN Staff

● Supreme Court Nominations: HNN's General Coverage

● HNN Hot Topic: Filibusters

How many people have been appointed to the Supreme Court?

126 people have been appointed to the Court. According to the US Senate website seven declined to serve.

Why was President Obama denied a chance to make a third appointment to the Court?

President Barack Obama is a Democrat. The US Senate was controlled by the Republicans when Antonin Scalia died and a seat opened up on the Court. That made it unlikely that President Obama would be able to get a nominee through the Senate, according to an assessment made by Harvard Law Professor Laurence Tribe in 2014 when some were suggesting that Ruth Bader Ginsburg should resign to allow Obama to replace her with a younger person. The last time a president of one party was able to get a Senate controlled by the other major party to approve a nominee was in 1991, when the Senate confirmed Clarence Thomas to the Court. He was nominated by President George H.W. Bush. The vote was 52 to 48. (Thomas's nomination was clouded by accusations that he had sexually harassed Anita Hill.) Since then vacancies occurred when the president and the Senate majority happened to be from the same party – except in 2016 when Scalia died.

Within hours of the announcement of Justice Scalia's death Mitch McConnell (R-Ky), the Senate Majority Leader, poured cold water on the idea of replacing the justice in 2016. "The American people should have a voice in the selection of their next Supreme Court Justice," McConnell wrote in a public statement. "Therefore, this vacancy should not be filled until we have a new President." Senate Minority Leader Harry Reid (D-NV) insisted that Obama should nominate a replacement for Scalia.

SCOTUSblog notes: "The historical record does not reveal any instances since at least 1900 of the president failing to nominate and/or the Senate failing to confirm a nominee in a presidential election year because of the impending election. In that period, there were several nominations and confirmations of Justices during presidential election years." Among the nominations was Louis Brandeis in 1916, who was nominated by Woodrow Wilson during his re-election drive. Other election year nominations were approved in 1912 and 1932.

The Congressional Research Service notes that in the 19th century seven nominations were made by lame-duck presidents.

Have Supreme Court nominations usually been the subject of partisan controversy?

The shocking answer -- shocking to Americans who have lived through the hearings for Robert Bork, Clarence Thomas, and Sonia Sotomayor -- is that for nearly a century nominations to the Court usually flew through with barely a bump. Between 1894 and 1967 only one nominee was rejected. Most pundits date the beginning of the change to Ronald Reagan's nomination of Robert Bork, a far-right law professor from Yale who advocated the theory of originalism. But as Rick Shenkman reported in an article on HNN in 2006 the turning point came in 1967 when Lyndon Johnson nominated Abe Fortas as chief justice. Fortas, who was already a member of the Court, failed to win approval after allegations of conflicts of interest were leveled against him. In public memory Fortas went down because he was corrupt. But in retrospect his was just the first in a string of failed nominations. One thread connects all of them. All became caught up in the culture wars.

The New York Times notes that South Carolina Senator Strom Thurmond claimed to object to any president's making judicial nominations at any level within months of a presidential election. This became known as the Thurmond Rule. But since then the practice has been to approve judicial nominations in election years, albeit more slowly.

How many nominees to the Court have been blocked by filibusters?

Many nominees, including Clarence Thomas and Samuel Alito, Jr., have received fewer than 60 votes, the filibuster threshold in effect from the 1970s to 2017. But few were blocked by a filibuster. The reason is that when nominations were in trouble the president usually chose to withdraw the nominee from consideration as President George W. Bush did when Harriet Miers proved an unpopular choice. On occasion the president simply decided to let their nominee go down in defeat. The last nominee blocked by a filibuster was Abe Fortas as Chief Justice in 1968. On April 6, 2017 the Democrats in the US Senate filibustered Donald Trump's nomination of Neil Gorsuch. The GOP immediately moved to change the Senate rules that for two centuries had given the minority the right to block appointments to the Supreme Court. This is known as the "nuclear option."

Related Link – HNN Hot Topic: Filibusters

Do presidents usually pick their friends?

Until recently, presidents 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 credentials 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 been 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 were 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 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.

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 (D), 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 served as judges before joining the Court.

Is it common for presidents to announce their selections on prime time television?

President George W. Bush decided he would nominate John G. Roberts on the morning of Tuesday July 19, 2005 and notified the judge around noon. That evening the president made his decision public at a prime time television event covered live by the networks. According to Don Ritchie, who was formerly with the U.S. Senate historical office, most presidents have made their announcements during the day. The last president Before Bush to make a prime time announcement was Richard Nixon in 1969 when he revealed his selection of Warren Burger as chief justice. On January 31, 2017 President Donald Trump announced that he had selected Neil M. Gorsuch to fill the open seat left by the death of Antonin Scalia.