The Supreme Appointment: Visionaries Need Not Apply

Charles W. Rhodes, South Texas College of Law

Abstract

The recent announcement of Justice John Paul Stevens that he would retire at the end of the October 2009 Term has instigated the typical media frenzy of shortlists and speculation regarding the identity of the next nominee to the United States Supreme Court. Will President Barack Obama make a bold nomination of a liberal judicial visionary to battle Justices Scalia and Thomas? Will he nominate a political officeholder who will bring a new perspective on the role of the Court? Or will he follow the recent tradition of nominating a sitting federal appellate court judge with a prestigious academic and professional background who has avoided articulating a grand judicial vision?

The evolution of the dynamics of the confirmation process, which is described in this article, indicates the answer. I even make a prediction, based on these dynamics, regarding the identity of the next nominee.

The trend over the last four decades has been to “promote” a judge sitting on the federal appellate bench rather than to nominate a “visionary” in the mold of the legendary Justices of the past. In explaining the reasons for this prior judicial experience trend, I first examine the evolution of the Senate’s confirmation practices. Confirmation during the eighteenth and nineteenth centuries, I demonstrate, was a purely partisan political affair, with little opportunity for public input. After the Seventeenth Amendment made Senators directly accountable to the voters for election, the Senate began slowly opening its confirmation practices to public scrutiny and debate. I show the progression of the public’s ever-increasing involvement in the appointments process during the twentieth century, especially as the Warren and Burger Courts’ decisions impacted daily American life more frequently. At each stage of this progression, the likelihood that a nominee was a sitting federal appellate judge escalated.

My theory is that, as the Court has become more involved in politically charged social issues during recent times, the Court’s legitimate exercise of the power of judicial review requires, in the public’s eye, a greater separation from ordinary politics. I confirm this theory using both public opinion surveys and my own case studies of the nominations of Sotomayor, Alito, Miers, Roberts, Breyer, Ginsburg, and Thomas.