The appointment of a Supreme Court justice involves legal, political, and personal considerations. A legal scholar discusses several factors that have influenced presidents in choosing nominees for the High Court and the Senate in confirming—or rejecting—their nominations. In spite of the president's and the Senate's efforts to appoint justices who may share their political philosophies, members of the Court have consistently displayed independence from the other branches of government, and Americans wouldn't have it any other way.

Robert S. Barker is distinguished professor of law at the Duquesne University School of law in Pittsburgh, Pennsylvania. He was for 12 years chairman of the Inter-American Bar Association's Committee on Constitutional Law; as a Fulbright scholar, he has taught constitutional law at the University of Buenos Aires, Argentina; and he is the author of La Constitución de los Estados Unidos y su dinámica actual (to be published in 2005).

In 1791, when the United States Supreme Court had been in existence less than two years, one of its original members, John Rutledge, resigned from the Court in order to become chief justice of his home state, South Carolina. Four years later, the first chief justice of the U.S. Supreme Court, John Jay, resigned to become governor of his home state, New York. In 1800, when President John Adams asked Jay to return to the Court and nominated him to again become chief justice, Jay declined, observing that the Supreme Court lacked "energy, weight, and dignity." Indeed, during the Supreme Court's first decade of operation (1790-1800), five of the first 12 men to serve on the Court resigned, while three other nominees (including Jay in 1800) declined either appointment to the Court or promotion to chief justice. While one or two of these resignations and refusals were for personal reasons, most reflected a consensus that, as Jay put it, the Court lacked "energy, weight, and dignity."

That perception would soon change as the influence of the Supreme Court began to grow. The Court's momentous 1803 decision in Marbury v. Madison, establishing "judicial review" (that is, the power of judges to refuse to apply statutes determined by the judges themselves to be contrary to the Constitution), and the Court's remarkable ability ever since to maintain its independence from the other branches of government, have given the United States Supreme Court great prestige and authority in American law and politics.

Choosing Justices

Because the Supreme Court is itself important, the process by which its members are chosen is perforce of great significance. Article III, Section 1 of the Constitution vests the judicial power of the national (or "federal") government in "one Supreme Court, and in such inferior courts as the Congress may from time to time . . . establish," provides that the justices of the Supreme Court (as well as all other federal judges) shall have life tenure during good behavior, and guarantees that their salaries shall not be reduced during their time in office. Article II, Section 2 provides that the president of the United States ". . . shall nominate, and by and with the advice and consent of the Senate, shall appoint . . . judges of the Supreme Court. . . ."

Alexander Hamilton, an influential member of the Convention of 1787, which drafted the Constitution, explained the wisdom of the appointment process in The Federalist, Number 77:

To this union of the Senate with the President, in the article of appointments, it has in some cases been suggested that it would serve to give the President an undue influence over the Senate, and in others that it would have an opposite tendency, —a strong proof that neither suggestion is true.

Since 1789, when President George Washington initiated the process, presidents have made a total of 148 nominations to the Supreme Court. Of these, six were declined by the nominees, 12 were rejected by the Senate, nine were withdrawn by the president (usually because of Senate opposition), and five were not acted on by the Senate (and consequently lapsed). Thus, historically, approximately four out of five presidential nominations have been successful.

What kinds of persons have been nominated and appointed? And why have about 20 percent of nominations been unsuccessful? Each nomination to the Supreme Court involves a unique interplay of legal, political, and personal considerations; nevertheless, some generalizations are possible. First of all, nominees to the Supreme Court have always been lawyers. While the Constitution does not require this, common sense demands that those whose principal duty is to interpret and apply the law, be themselves learned in the law. Second, nominees have usually been personal allies of the president, prominent members of the president's political party, or jurists sympathetic to the president's positions on the major legal issues of the day. Thus, for example, Roger Brooke Taney, a leading figure in President Andrew Jackson's opposition to the existence of a national Bank of the United States, was appointed chief justice by Jackson in 1836; and Abe Fortas, a close advisor to President Lyndon Johnson, was appointed to the Court by Johnson in 1965.

Many appointees have been major political figures in their own right: Salmon P. Chase, appointed chief justice by Abraham Lincoln in 1863, had been governor of Ohio; Charles Evans Hughes, first appointed to the Court by William Howard Taft in 1910, was governor of New York; Franklin D. Roosevelt's first appointment to the Court (in 1937) was Senator Hugo L. Black of Alabama, and a later appointee, Frank Murphy, had been governor of Michigan. Earl Warren was governor of California when Dwight Eisenhower named him chief justice in 1954. Most famously, President Warren G. Harding in 1921 named former president Taft to the Court, as chief justice.

Sometimes presidents have appointed members of the opposition party. Thus, President Lincoln, a Republican, appointed Stephen J. Field, a prominent Democrat, to the Court in 1863. In 1940, President Franklin Roosevelt elevated Justice Harlan Fiske Stone, a Republican, to the chief justiceship. In 1945, President Harry Truman, a Democrat, appointed Senator Harold H. Burton of Ohio, a Republican, to the Court. In 1956, three weeks before the presidential election, President Eisenhower appointed William J. Brennan, a Democrat. There are other examples of such "bipartisanship"; however, while bipartisan, these appointments were nonetheless political, since they were calculated to win popular or congressional support for the president.

The practice of appointing prominent politicians to the Supreme Court has decreased markedly over the past half-century. Recent presidents have tended to nominate men and women who were already sitting judges. Of the nine justices now on the Court, six (John Paul Stevens, Antonin Scalia, Anthony M. Kennedy, Clarence Thomas, Ruth Bader Ginsburg, and Stephen G. Breyer) were federal appellate-court judges at the time of their nomination, and two (Sandra Day O'Connor and David H. Souter) were state appellate-court judges. Today a nominee's political prominence is less important than his or her philosophical compatibility with the president.

SENATE CONFIRMATION

The Constitution does not establish criteria for Senate approval or rejection of nominees; thus, each senator is free to apply his or her own standards. The first Supreme Court nominee to be rejected by the Senate was John Rutledge in 1795. Rutledge, an original member of the Court, had resigned in 1791. Four years later, when President Washington nominated him to be chief justice, many senators opposed Rutledge because of his vociferous criticism in 1794 of a controversial treaty between the United States and Great Britain. Other nominations have failed for a variety of reasons: Alexander Wolcott was rejected in 1811 because of a combination of partisan opposition and the bipartisan doubts about his ability. In 1844 and 1845, President John Tyler made six attempts to fill vacancies on the Court, five of which were unsuccessful. Tyler, a Democrat who had been elected vice president on the Whig ticket and who succeeded to the presidency upon the death of President William Henry Harrison, lacked a sufficiently strong base of support in either political party to secure favorable Senate action. Several nominees, such as Ebenezer Hoar in 1870 and Wheeler H. Peckham in 1894, were rejected because their opposition to political patronage demands had antagonized influential senators. In 1930, the Senate rejected President Herbert Hoover's nomination of John J. Parker amid charges that the nominee was anti-labor. In 1969 and 1970, the Senate rejected two of President Richard Nixon's nominees over criticism of the nominees' personal qualities and philosophical positions. The defeat of President Ronald Reagan's nominee, Robert H. Bork, in 1987 was, all sides agree, based on considerations of judicial philosophy. In short, nominees have been rejected for a wide variety of reasons, partisan, personal, and philosophical.

The Constitution does not specify the size of the Supreme Court; the number of justices has always been determined by federal statute. Congress originally fixed the number of justices at six. Since then, there have at various times been as many as 10 justices and as few as five. Usually the size of the court has been based on considerations of judicial efficiency; but on one notable occasion the motive was political. In 1866, Congress provided that the number of justices would be reduced, by attrition, from 10 to seven, to prevent President Andrew Johnson from making any Supreme Court appointments. In 1869, after Johnson had left office, the number of justices was raised to nine, where it has remained ever since.

JUDICIAL INDEPENDENCE

While the aforementioned conflicts illustrate the political aspects of Supreme Court appointments, two other phenomena demonstrate deeper, more important realities: the first is that, whatever the circumstances of their appointment, Supreme Court justices, once in office, have consistently shown independence of the political branches of government, including independence of the very presidents who appointed them. For example, in 1902, President Theodore Roosevelt appointed Oliver Wendell Holmes Jr. to the Court. Less than two years later, in an antitrust case of considerable importance to Roosevelt's program, Holmes voted against the president. In 1952, when President Truman's seizure of the country's major steel mills was challenged on constitutional grounds, the Supreme Court decided, by vote of 6 to 3, against the president. Of the four justices who had been appointed by Truman himself, two voted against him. Earl Warren, appointed chief justice by President Eisenhower, voted contrary to Eisenhower's position so often that the president, upon leaving office, called his appointment of Warren, "the worst damn-fool mistake I made as president." In 1974, in United States v. Nixon—a case involving President Nixon's refusal to turn over subpoenaed White House tape recordings on grounds of executive privilege—three of the four justices who had been appointed by Nixon voted against him, while the fourth recused himself.

The second phenomenon of overriding importance—one closely related to the first—is that the American people expect and demand that the Supreme Court will be independent of the political branches of government. In 1805, the Jeffersonian majority in the House of Representatives, intent upon subduing the federal judiciary (which was then dominated by judges of Federalist persuasion), impeached Supreme Court Justice Samuel Chase. In accordance with the Constitution, the matter then proceeded to trial before the Senate, where the Jeffersonians had a 25-9 majority, more than the two-thirds required to remove an impeached official. However, enough Jeffersonians voted for Chase that he was acquitted. No other justice of the Supreme Court has ever been impeached, and the Chase controversy stands as evidence that judicial independence is more important than partisan advantage.

An even more vivid example occurred in the 1930s. Between 1933 and 1936, the Supreme Court declared unconstitutional many laws enacted as part of President Franklin D. Roosevelt's New Deal, his program to revive the American economy during the Great Depression. In 1936, Roosevelt was overwhelmingly re-elected and his supporters won large majorities in both houses of Congress. Soon after his re-election, Roosevelt announced his intention to deal with the problem of the Supreme Court by proposing legislation that would permit him to appoint as many as six additional justices. Most popular and congressional reaction was hostile to the president's plan, and it was not adopted. Although the people and their representatives favored Roosevelt's economic policies, they considered the independence of the Supreme Court more important than the policy disagreements of the moment.

Today there is again controversy over the jurisprudence of the Supreme Court. However, the debate is over whether this or that decision is faithful to the Constitution. Such debate is healthy, indeed necessary, in a free and democratic society. But about the desirability of judicial independence from the other branches of government, there is virtually no disagreement; on this, as on the wisdom of the method of choosing Supreme Court justices, the lessons of history are clear and positive.

Perhaps the ultimate guarantee of both judicial independence and judicial fidelity is the people's simultaneous attachment to democracy and to the rule of law. More than a century ago, James Bryce, British jurist and historian, in his classic study of United States government, The American Commonwealth, closed his discussion of the judiciary as follows: "To the people we come sooner or later; it is upon their wisdom and self-restraint that the stability of the most cunningly devised scheme of government will in the last resort depend."

The opinions expressed in this article are those of the author.