Article II, Section 2, Clause 2:

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The Appointments Clause provides that the President shall appoint, subject to Senate confirmation, “Judges of the supreme Court, and all other officers of the United States.” 1 Thus Supreme Court Justices are officers of the United States whose appointment must comply with the requirements of the Appointments Clause. Importantly, the Constitution provides that presidential nominees are subject to the “advice and consent” of the Senate. A range of matters are potentially relevant when the Senate considers whether to give its consent for nominations to the Nation’s highest court, including political considerations, a nominee’s judicial philosophy, fitness for the bench, past statements on issues relevant to the Court, and the overall balance of power between political factions.

Since the beginning of the Nation’s history, just as the confirmation of Executive Branch officers has included political considerations, so to have nominees to the Supreme Court been accepted or rejected on political grounds.2 For instance, the Senate rejected President George Washington’s choice to replace the first Chief Justice of the Supreme Court on largely political considerations.3 In 1795, President Washington chose John Rutledge, who had previously served on the Supreme Court as an Associate Justice from 1789 to 1791, to replace John Jay, who had been elected Governor of New York.4 After serving on the Court from 1789 to 1791, Rutledge had resigned his seat in order to serve as the chief justice of South Carolina’s Supreme Court.5 Prior to receiving a nomination to serve as Chief Justice on the U.S. Supreme Court, however, Rutledge gave a speech critical of the Jay Treaty reached with Great Britain, which had recently been approved for ratification by the Senate on June 24, 1795.6 The Federalists strongly supported the treaty, and their opposition in the Senate to Rutledge’s views ultimately sunk his nomination.7 The Senate voted to reject the nomination in December 1795.8 Of course, the Senate is not unique in considering politics and partisan considerations in this arena—every one of the twelve appointments President Washington made to the Supreme Court came from the Federalist Party,9 and subsequent Presidents have considered politics in making their own appointments.10

Indeed, the political landscape profoundly informs and shapes the Supreme Court nomination and confirmation process. For instance, the timing of a Supreme Court vacancy can be crucially important: a vacancy occurring shortly before an election can alter the type of candidate that can realistically be confirmed; and prominent legal issues facing the country can affect the scope of appropriate views that a nominee must have.11 The Senate’s composition can also restrict a President’s choices of who to nominate. A shift in party control of the Senate can dramatically alter the type of nominees a President can expect to be confirmed.12 Likewise, public opinion of the President can shape the type of nominee a President can expect the Senate to support: a President with strong approval ratings, for instance, might face an easier task in achieving confirmation for a Justice, or might enjoy broader leeway in the type of Justice he could nominate in the first place.13 An outgoing Justice’s attributes can narrow the options available to a President. The President might find himself limited to moderate nominees when replacing a Justice seen as a swing vote on the Court. He might also find replacing a pillar of the right or left to require a nominee that appeals to one political side more strongly.14 Finally, traditional norms of professional expectations play a role in circumscribing the eligible range of potential Supreme Court nominees—every single Justice has been a lawyer (though this is not required by the Constitution); since 1943, all Justices have graduated from accredited law schools; and most modern Justices graduated from top-ranked law schools and served on federal courts or in academia before confirmation.15

The rise of interest groups influencing the selection of Supreme Court Justices also reflects the increasing role of issue partisanship in the process. The nomination of Louis Brandeis to the Court in 1916 sparked a four month struggle with opposition from big business and past presidents of the American Bar Association.16 Objections to his nomination included his judicial temperament and character, the alleged radicalism of his views, and also arguably reflected an anti-Semitic character.17 He was eventually confirmed with the support of labor, consumer, and some religious groups.18 Opposition to President Ronald Reagan’s nomination of Robert Bork to the Supreme Court is a particularly prominent example of the role interest groups may play.19 Both labor and civil rights groups mounted significant opposition to the nomination. In the wake of that opposition’s success, conservative groups were organized to counteract the perceived role of liberal interest organizations in influencing judicial nominations.20

Another important development regarding the selection of Supreme Court nominees is the increasingly public nature of the process. It was not until the twentieth century that open hearings were held over a Supreme Court nomination.21 In 1916, the Senate did so for the nomination of Louis Brandeis.22 Nine years later, Harlan Fiske Stone was the first nominee to appear personally before the Senate Judiciary Committee.23 Stone’s testimony was limited to the Teapot Dome Scandal. In 1939, Felix Frankfurter appeared before the Senate Judiciary Committee and was “the first nominee to take unrestricted questions in an open, transcribed, public hearing.” 24 Almost all nominees since 1955 have testified formally before the Senate Judiciary Committee.25 Those hearings have been televised since 1981.26 Finally, the particular procedures used by the Senate in considering nominations can affect the likelihood of confirmation for a Supreme Court Justice. In cases where the Senate has eliminated the sixty vote threshold necessary for confirmation, it may be easier to confirm a nominee to the bench (notwithstanding accompanying political ramifications).27

Footnotes

1

U.S. Const. art. II, § 2, cl. 2.

2

See generally Joseph P. Harris, The Advice and Consent of the Senate 303 (1953).

3

1 Charles Warren, The Supreme Court in United States History 1789–1835, at 124–27 (1926).

4

Harris, supra note 2, at 43; U.S. S. Ct., About the Court, https://www.supremecourt.gov/about/members_text.aspx (last visited June 22, 2022). Rutledge served as Chief Justice on a recess appointment during the Court’s 1795 August term. Michael J. Gerhardt, The Federal Appointments Process 51 (2003).

5

Harris, supra note 2, at 42.

6

Harris, supra note 2, at 43.

7

Gerhardt, supra note 4, at 51–52; Harris, supra note 2, at 43; Warren, supra note 3, at 128–37.

8

U.S. Sen., Chief Justice Nomination Rejected, https://www.senate.gov/about/powers-procedures/nominations/a-chief-justice-rejected.htm (last visited June 22, 2022).

9

Gerhardt, supra note 4, at 51–52.

10

Harris, supra note 2, at 302–03. See generally Henry Abraham, Justices, Presidents, and Senators: A History of the U.S. Supreme Court Appointments from Washington to Bush II (2007).

11

See David Alistair Yalof, Pursuit of Justices: Presidential Politics and the Selection of Supreme Court Nominees 4 (1999). More recently, following the death of Associate Justice Antonin Scalia, President Barack Obama’s nomination of Merrick Garland in 2016 to the High Court did not receive a hearing or a vote in the Republican-controlled Senate. That body refused to consider a Supreme Court nomination until after the fall’s election. In 2017, President Donald Trump nominated and the Senate confirmed Neil Gorsuch to the Court. Sarah Lyall, Liberals Are Still Angry, but Merrick Garland Has Reached Acceptance, N.Y. Times (Feb. 19, 2017), https://www.nytimes.com/2017/02/19/us/politics/merrick-garland-supreme-court-obama-nominee.html; Audrey Carlsen & Wilson Andrews, How Senators Voted on the Gorsuch Nomination, N.Y. Times (Apr. 7, 2017), https://www.nytimes.com/interactive/2017/04/07/us/politics/gorsuch-confirmation-vote.html

12

Yalof, supra note 11, at 5.

13

Yalof, supra note 11, at 5.

14

Yalof, supra note 11, at 5.

15

Yalof, supra note 11, at 6, 170; Adrian Vermeule, Should We Have Lay Justices?, 59 Stan. L. Rev. 1569, 1574 (2007); Lee Epstein, et. al, The Supreme Court Compendium: Data, Decisions, and Developments 321–85 (6th ed. 2015).

16

Gerhardt, supra note 4, at 69.

17

Gerhardt, supra note 4, at 69.

18

Gerhardt, supra note 4, at 69–70.

19

Gerhardt, supra note 4, at 71–72.

20

Gerhardt, supra note 4, at 71–72.

21

Yalof, supra note 11, at 14–15.

22

Yalof, supra note 11, at 14–15. Brandeis did not testify in the hearings, which were quite contentious and lasted months. See Harris, supra note 2, at 99–114.

23

Yalof, supra note 11, at 14–15.

24

Paul M. Collins, Jr. & Lori A. Ringhand, Supreme Court Confirmation Hearings and Constitutional Change 35 (2013).

25

Yalof, supra note 11, at 14–15. In 1987, Douglas Ginsburg withdrew his nomination before a formal hearing was conducted. In 2016, Merrick Garland was nominated but was not given a hearing in the Senate.

26

Yalof, supra note 11, at 14–15.

27

163 Cong. Rec. S2390 (daily ed. Apr. 6, 2017).