5.3: Appointing and Confirming Supreme Court Justices

“[Federal judges] have become the most consequential policymakers in the country. They have gutted America’s campaign finance law and dismantled much of the Voting Rights Act. They have allowed states to deny health coverage to millions of Americans. They’ve held that religion can be wielded as a sword to cut away the rights of others. They’ve drastically watered down the federal ban on sexual harassment. And that barely scratches the surface.”

–Ian Millhiser ^₍₁₎

“Separate educational facilities are inherently unequal.”

–Chief Justice Earl Warren ⁽²⁾

The Supreme Court Justices

The U.S. Supreme Court currently has nine justices. The Constitution does not specify the number. In the Judiciary Act of 1789. Congress initially established a six-member Supreme Court, with a Chief Justice and five associate justices. Around the Civil War era, the number fluctuated. In 1869, Congress raised the number of justices to nine, where it has stayed ever since.

In 1937, President Franklin Roosevelt proposed to expand the number of justices by adding one for every sitting justice who was seventy- and one-half-years-old and who didn’t retire. Potentially, this move could have increased the number of justices to fifteen. Roosevelt was frustrated that the Court was thwarting his New Deal policies, which were targeted at ameliorating the effects of the Great Depression. His court-packing plan was not approved by Congress, but the Court nevertheless became more amenable to an activist federal government. ⁽³⁾ The Court’s change to begin endorsing Roosevelt’s policies became popularly known as “the switch in time that saved nine.”

Article II, Section 2, of the Constitution says that the president appoints Supreme Court justices with the Senate’s advice and consent. The same procedure applies to seating all federal judges. The president’s nominee needs at least fifty-one votes in the Senate to take his or her seat on the bench. The Constitution does not list Supreme Court or other federal judgeship qualifications. Senate Judiciary Committee members interview district and circuit court seat nominees, scrutinizing the nominee’s stances on previous cases or their approach to making decisions. This kind of scrutiny’s magnitude is enormously greater for Supreme Court nominees. In 2017, the Senate Republican majority enforced new rules to disallow filibustering Supreme Court nominees.

The Supreme Court as composed on June 30, 2022.
Front row, left to right: Associate Justice Samuel A. Alito, Jr., Associate Justice Clarence Thomas, Chief Justice John G. Roberts, Jr., Associate Justice Stephen G. Breyer, and Associate Justice Sonia Sotomayor.
Back row, left to right: Associate Justice Brett M. Kavanaugh, Associate Justice Elena Kagan, Associate Justice Neil M. Gorsuch, and Associate Justice Amy Coney Barrett.

Who are our current Supreme Court justices? Although few Americans can name them, you should know who they are and something about their perspectives. You can always check the Supreme Court’s website for the current membership. Talk about the Supreme Court justices with your professors, classmates, family, and friends. What do you know about who appointed them and their ideological perspectives?

Here are some Supreme Court membership historical facts. Up through mid-2020, 114 people have served as Supreme Court justices. More than 97 percent have been white, and more than 96 percent have been men. ⁽⁴⁾ Of all the Supreme Court justices who have served since the Civil War, more than 65 percent have been nominated by Republican presidents.

Controversies Surrounding Some Court Nominations

Nominating a Supreme Court justice is a very politically consequential act because that person is likely to serve on the court for decades—there is no term or age limit for justices. In other words, they affect public policy and the lives of ordinary Americans long after the president is out of office. The Supreme Court has decided whether schools can be racially segregated, whether couples can access contraception, whether local police must possess a warrant to search a person's house or car, and whether federal agencies can regulate child labor and air pollution. Given the stakes, some Court nominations have proven to be very controversial. Here are some examples:

Robert Bork—In 1987, President Ronald Reagan nominated Robert Bork to the Supreme Court. Reagan was seeking to replace retiring centrist Justice Lewis Powell Jr., with an activist conservative justice. The Senate defeated Bork’s nomination 58-42. As far as most Democrats and a few moderate Republican senators were concerned, Bork had two strikes against him. First, Robert Bork was the Justice Department official who carried out President Nixon’s “Saturday Night Massacre.” Nixon had ordered his Attorney General to fire the special prosecutor investigating the Watergate scandal. The Attorney General refused and resigned instead, as did the Deputy Attorney General. Bork, who was third in command at the Justice Department, carried out Nixon’s order and fired the special prosecutor. Second, Bork’s legal opinions put him far to the right of mainstream legal thinking. He opposed the Court’s actions to ensure one-man-one vote; he opposed civil rights Court decisions; he opposed the right to privacy. After Bork’s nomination was defeated, Reagan tried another appointment but had to rescind it. Then, he settled on Anthony Kennedy, who served for thirty years on the Court as a swing vote. Kennedy was approved by a 97-0 vote. ⁽⁵⁾

Clarence Thomas—In 1991, President George H. W. Bush appointed Clarence Thomas to replace Thurgood Marshall, who had retired from the Supreme Court due to his failing health. While both justices were African-American, Marshall was a prominent liberal with an historically long progressive interpretation of the Constitution. Thomas was an up and coming conservative originalist. Thomas’ Senate confirmation hearings became a national television event. Anita Hill, who had worked for Thomas when he led the Equal Employment Opportunity Commission (EEOC), accused him of pestering her for dates, sexually harassing her, and creating a hostile workplace environment replete with crude references to sex and pornography. (The EEOC is charged with investing federal sexual harassment cases.) The all-male, all-white Senate Judiciary Committee, that was holding the hearings, allowed Thomas to testify before and after Hill, and refused to bring in other witnesses who would have corroborated Hill’s account of Thomas’ behavior. The Republican Senators who went after Hill in the hearing, included Arlen Specter, Orrin Hatch, Strom Thurmond, Alan Simpson, and John Danforth among others. Thomas was approved by a 52-48 vote. As a result of this incident, a few more women were subsequently elected to the Senate, and EEOC workplace sexual harassment reports more than doubled. ⁽⁶⁾

Merrick Garland—In February 2016, sitting Supreme Court Justice Antonin Scalia died unexpectedly. President Barack Obama nominated centrist Merrick Garland to fill that Court seat. Garland had served for twenty years as chief judge of the D.C. Circuit Court and had never had one of his decisions overturned by the Supreme Court. Flouting Constitutional norms, Senate Majority Leader Mitch McConnell and his fellow Republican senators said they would not meet with Garland, hold confirmation hearings, or hold a vote. The Republicans argued that they did not have to hold hearings or a vote on a president’s nominee and that the voters should speak in the 2016 presidential election before the seat was filled. So, the Republicans kept the seat vacant for over a year. When President Trump won the election, McConnell and his colleagues promptly approved Trump’s nominee, a conservative originalist named Neal Gorsuch, to fill the empty seat. Later, McConnell made clear that if a seat were to come open during 2020, he would hold hearings and a vote rather than wait until the presidential election that fall. ⁽⁷⁾

Brett Kavanaugh—When Justice Anthony Kennedy announced his retirement in 2018, it afforded President Trump an opportunity to replace a swing-voting centrist with a solid conservative. Thus, tilting the court even more to the right. Trump appointed conservative Brett Kavanaugh. During the confirmation process, his high school classmate Christine Blasey Ford came forward with sexual assault allegations that had allegedly happened when the two were in school together. Kavanaugh vehemently denied the allegations and launched partisan invective at the Democratic senators on the Judiciary Committee. Classmates who knew Kavanaugh at Yale University made similar allegations, but they were not heard at the hearings, and the FBI did a superficial job of investigating them. ⁽⁸⁾ Moreover, credible allegations were made during the confirmation process that Kavanaugh had perjured himself on multiple topics. ⁽⁹⁾ Nevertheless, the Republicans chose not to seriously probe those allegations, and Kavanaugh was approved by a vote of 50-48.

Amy Barrett--On September 26, 2020, President Donald Trump announced the nomination of Amy Coney Barrett to the position of Associate Justice of the Supreme Court of the United States to fill in the vacancy left by the death of Ruth Bader Ginsburg. On October 26, the Senate voted to confirm Barrett's nomination to the Supreme Court, with 52 of 53 Republicans voting in favor and all 47 Democrats voting against. Barrett took the judicial oath on October 27. Democrats rebuked Republicans and accused them of hypocrisy, stating that they had violated their own interpretation of the rule, which they set in 2016 when they refused to consider President Obama's nomination of Merrick Garland more than nine months before the end of his term. (See above.) The entire process took 35 days, which was the shortest period of time between a nomination and an election in US History.

Staffing the Rest of the Federal Judiciary

Speaking plainly, the federal judiciary has become politicized to a remarkable degree. We live in a highly politicized time with respect to the federal judiciary. Congressional partisanship has not only led to contested nominations, but it has spilled over into the judiciary. Battles lost in Congress manifest themselves as wars in the federal courts. Republicans have been particularly aggressive and successful in packing the courts with conservative judges. How have they accomplished this? Via the following three mechanisms:

Creating a conservative judicial strategy—In recent decades, Republicans have been far more unified and strategic with their approach to the federal judiciary than have Democrats. In the 1950s, 60s, and 70s, a centrist federal court system was amenable to civil rights, female bodily integrity, economic regulations, and environmental regulations. They developed a strategy to turn that tide.

Founded in 1982, the Federalist Society has been key to that strategy. They have cultivated conservative law students and jurists, as well as been funded with tens of millions of dollars by deep-pocketed conservatives, including the Koch brothers—oil, chemicals, commodities, fertilizer; the Scaife family—oil, aluminum, banking; the Templeton Foundation—Wall Street investments; the Searle Foundation—pharmaceuticals; Exxon—oil; Chevron—oil; Google—Internet search and advertising; Verizon—telecommunications; and the U.S. Chamber of Commerce—business interests. ⁽¹⁰⁾ The Federalist Society “educates” law students and early career jurists to cut federal regulations, take an originalist approach to Constitutional interpretation, defend corporate personhood, and embrace a social-Darwinian approach to the question of whether government policies should help improve ordinary peoples’ lives. The Federalist Society regularly hosts fundraisers in which big donors have access to Supreme Court justices like Antonin Scalia, Clarence Thomas, and Samuel Alito. ⁽¹¹⁾ The liberal alternative to the Federalist Society is the American Constitutional Society, which doesn’t have nearly as large a stable of billionaires and corporate donors. Moreover, Democratic presidents have thus far not been particularly strategic in their federal judiciary nominations.

Frustrated by the obstruction, Democrats changed the Senate rules to no longer allow lower court nominations to be filibustered. In 2014, when Republicans regained the majority in the Senate, they were in a position to significantly hamper Obama’s nominations, which they certainly did. Democrats approved 68 of Republican George W. Bush’s court nominees in the final two years of his presidency, while the majority of Republicans approved just twenty of Democrat Barack Obama’s nominees. As a result, Obama left office with an astonishing 107 federal court seat vacancies—twice as many as when Bush left office. ⁽¹³⁾

Rushing nominations through during the Trump administration—Once President Trump took office, Senator McConnell and his fellow Republicans ramped up the judicial approval process to get as many young conservatives on the federal bench as possible. Of Trump’s first eighty-seven judicial nominations, 92 percent were white, and the Trump administration placed a strong emphasis on getting originalists and textualists on the federal judiciary. ⁽¹⁵⁾ Indeed, more than twenty of Trump’s appointees refused to say whether the unanimous Brown v Board of Education (1954) decision against segregated schools was correctly decided. ⁽¹⁶⁾ The Trump administration essentially turned over its vetting of federal judicial nominations to the Federalist Society. According to Amanda Hollis-Brusky, author of Ideas with Consequences: The Federalist Society and the Conservative Counterrevolution, “When you look at [Trump’s] list of judges and the people that he’s put on the bench, it’s been entirely controlled by the Federalist Society.” ⁽¹⁷⁾

From a strictly political science point of view, it will be interesting to see how the most recent phase of judiciary politicization will play out. The country may be entering a long period in which the public policy aspirations of ordinary people may be disproportionately stricken down by a federal judiciary that hews to originalism, textualism, and conservative values.

What if . . . ?

Part of the reason judicial nominations are so high stakes is that nominees hold their positions for life. What if term limits were placed on Supreme Court justice positions and other federal judgeships? What would be the advantages and disadvantages of doing so?

References

1. Ian Millhiser, “What Trump has Done to the Courts, Explained,” Vox. December 9, 2019.
2. Brown v. Board of Education(1954).
3. Lesley Kennedy, “This is How FDR Tried to Pack the Supreme Court,” History.com. October 28, 2018.
4. Only Thurgood Marshall, Clarence Thomas, and Sonia Sotomayor are people of color. Only Sandra Day O’Connor, Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan are female.
5. Sarah Pruitt, “How Robert Bork’s Failed Nomination Led to a Changed Court,” History.com. October 28, 2018.
6. David A. Kaplan, “Anatomy of a Debacle,” Newsweek. October 20, 1991. Julia Carpenter, “How Anita Hill Forever Changed the Way We Talk About Sexual Harassment,” CNN Money. November 9, 2017. See also various videos here, here, and here.
7. Rebecca J. Rosen, “Neal Katyal: Senate’s Obstruction of Merrick Garland ‘Was Unforgivable,’” The Atlantic. June 27, 2017. Ron Elving, “What Happened with Merrick Garland in 2016 and Why It Matters Now,” NPR. June 29, 2018.
8. Mimi Rocah, “Confirmed: Powerful Men Ignored Women in Short-Circuited Brett Kavanaugh Investigation,” USA Today. September 17, 2019. Robin Pogrebin and Kate Kelly, The Education of Brett Kavanaugh: An Investigation. New York: Penguin, 2019.
9. Tara Golshan, “Did Brett Kavanaugh Perjure Himself? The Debate, Explained,” Vox. October 2, 2018.
10. See Sourcewatch, and Polluterwatch.
11. Stephen Spaulding, “Federalist Society Big Donors Land Very Special Place at Justice Thomas’ Table,” Common Cause. December 5, 2013.
12. Allison Graves, “Did Senate Republicans Filibuster Obama Court Nominees More Than All Others Combined?” PolitiFact. April 9, 2017.
13. David G. Savage, “This Congress Filled the Fewest Judgeships Since 1952. That Leaves a Big Opening for Trump.” Los Angeles Times. December 31, 2016.
14. Jake Johnson, “McConnell Brags He and Trump are ‘Changing the Federal Courts Forever’ With Extreme Right-Wing Judges,” Common Dreams. November 5, 2019.
15. Richard Wolf, “Trump’s 87 Picks to be Federal Judges are 92% White With Just One Black and One Hispanic Nominee,” USA Today. February 13, 2018.
16. “Trump Judicial Nominees and Brown V. Board of Education,” Weekend Edition Sunday. NPR. May 19, 2019.
17. “What is the Federalist Society and How Does it Affect Supreme Court Picks?” All Things Considered. NPR. June 28, 2018. Amanda Hollis-Brusky, Ideas with Consequences: The Federalist Society and the Conservative Counterrevolution. Oxford: Oxford University Press, 2019.

Media Attributions

• 2018 Roberts Court © Fred Schilling is licensed under a Public Domain license