The selection of U.S. Supreme Court justices

International Journal of Constitutional Law

Volumn 4, Issue 4, 2006, Pages 652-663

  Dorsen, Norman ^a  

^a NEW YORK UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 33749825672     PISSN: 14742640     EISSN: 14742659     Source Type: Journal    
DOI: 10.1093/icon/mol028     Document Type: Article

References (37)

1. The longest period in American history without a change in the Court's composition was 1812-1823. Michael J. Gerhardt, 39 U. Rich. L. Rev. 909, 909 (2005) (citing Charlie Savage, Win May Bring Power to Appoint 4 Justices; Campaigns Urged to Focus on Impact, Boston Globe, July 7, 2004, at A3 ("The decade since the confirmation of Justice Stephen Breyer is the second-longest interval without a vacancy in American history - a period just shy of the 11-year record for Supreme Court stability, from 1812 to 1823.")).
2. Beverly McLachlin, Chief Justice of the Supreme Court of Canada, Remarks at the IACL Roundtable on the Future of the European Judicial System, supra note *. Less than four months after Chief Judge McLachlin spoke, the prime minister of Canada announced a change in the process, "with prospective judges now for the first time being required to face a televised parliamentary hearing before the prime minister makes his final decision to appoint." Clifford Krauss, Canada: New Justices Will Face Public Hearings, N.Y. Times, Feb. 21, 2006, at A6.
3. The Constitution merely states, "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts at the Congress may from time to time ordain and establish." U.S. Const. art. III, §1.
4. Arthur S. Miller & Jeffrey H. Bowman, Break the Monopoly of Lawyers on the Supreme Court, 39 Vand. L. Rev. 305, 317 (1986) ("It is a matter of historical record that Professor Edward Corwin of Princeton, not a lawyer but a highly respected constitutional scholar, thought he would be named to the Court by Franklin Roosevelt.").
5. See Lee Epstein, Jack C. Knight, Jr. & Olga Shvetsova, Comparing Judicial Selection Systems, 10 Wm. & Mary Bill Rts. J. 7, 23 (2001) (survey of twenty-seven European countries finds compulsory time limits or mandatory retirement in most places).
6. In 1866, for example, Congress passed the Judicial Circuits Act, which provided that the next three justices to retire would not be replaced. The Act was intended to reduce Southern states' perceived influence on the federal government in the post-Civil War environment. With the Circuit Judges Act of 1869, the number of justices was returned to nine. See generally Felix Frankfurter & James M. Landis, The Business of the Supreme Court: A Stusy in the Federal Judicial System 30, 72 (Wm. W. Gaunt & Sons 1993) (1927).
7. See also Barry Friedman, The History of the Countermajoritarian Difficulty, Part II, 91 Geo. L.J. 1, 38-40 (2002).
8. These justices and a few others have been deemed "failures" in questionnaires about Supreme Court justices submitted to scholars and lawyers. See generally Albert P. Blaustein & Roy M. Mersky, Rating Supreme Court Justices, 58 A.B.A. J. 1185 (1972)
9. Albert P. Blaustein & Roy M. Mersky, The First One Hundred Justices: Stistical Studies on the Supreme Court of the United States 50-51 (Archon Books 1978)
10. William D. Pederson & Norman W. Proviser, Great Justices of the U.S. Supreme Court: Ratings and Cases (Peter Lang 1993).
11. John Roberts served as legal counsel to Feminists for Life, an antiabortion group. Samuel Alito was a member of the Federalist Society, a group of conservatives and libertarians. He was also affiliated with Concerned Alumni of Princeton, which opposed Princeton's affirmative action policies for women and racial minorities.
12. John O. McGinnis & Michael B. Rappaport, Supermajority Rules and the Judicial Confirmation Process, 26 Cardozo L. Rev. 543, 556 n.35 (2005).
13. See, e.g., Charles Krauthammer, Op-Ed., Withdraw This Nominee, Wash. Post, Oct. 7, 2005, at A23 (arguing that "If Harriet Miers were not a crony of the president of the United States, her nomination to the Supreme Court would be a joke....")
14. Randy E. Barnett, Op-Ed., Cronysim: Alexander Hamilton Wouldn't Approve of Justice Harriet Miers, Wall St. J., Oct. 4, 2005, at A26 (arguing that the core purpose of Senate confirmation of presidential nominees is to screen out the appointment of "cronies.").
15. See G. Edward White, Earl Warren: A Public Life, 149-159 (Oxford Univ. Press 1987).
16. 347 U.S. 483 (1954).
17. See John P. MacKenzie, Thurgood Marshall, in Justices of the United States Supreme Court Vol. IV (Leon Friedman & Fred Israel eds., Chelsea House 1969) 3063-3110
18. O. Taylor, Two Hundred Years, an Issue: Ideology in the Nomination and Confirmation Process of Justices to the Supreme Court of the United States 65-66 (NAACP 1987). In 2000, the only other African-American nominee, Clarence Thomas, also endured serious opposition, but it was on wholly different grounds.
19. See infra, p. XX.
20. 410 U.S. 113 (1973).
21. The ACLU had voted in 1971 to oppose the nomination of William Rehnquist and in 2006 to oppose the nomination of Samuel Alito but it did not mount campaigns in either instance.
22. See generally Mark Gitenstein, Matters of Principle (Simon & Schuster 1992).
23. See McLachlin, supra note 2. On the Bork controversy,
24. See Ethan Bronner, Battle for Justice: How the Bork Nomination Shook America (W.W. Norton 1989).
25. For a perceptive discussion of many recent nominations to the Supreme Court and citations to relevant Senate hearings, see Judith Resnik, Judicial Selection and Democratic Theory: Demand, Supply and Life Tenure, 26 Cardozo L. Rev. 579 (2005).
26. Ginsburg was the second woman nominated to the court, following Sandra Day O'Connor (1981). Neither was subjected to overt sexist opposition, in part, because they were both highly qualified and, in part, because there was a consensus that the time had arrived when a woman could and should be appointed to the Court. There has been no openly gay member of the Supreme Court.
27. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) (President Harry Truman's "seizure" of American steel mills to assure continued production during the Korean conflict ruled unconstitutional).
28. Professors Charles Fried and Ronald Dworkin engaged in a sophisticated debate on these issues in the context of the Alito nomination. The Strange Case of Justice Alito: An Exchange, 53 N.Y. REV. BOOKS 67 (Apr. 6, 2006).
29. For a full discussion of the "legalist" versus "political" approaches to Supreme Court appointments, see Michael Comiskey, Seeking Justices (Univ. Press of Kansas 2004),
30. discussed in D. Grier Stephenson, Jr., The Judicial Bookshelf, 30 J. Sup. Ct. Hist. 284, 296-298 (2005).
31. See also Michael J. Gerhart, Merit v. Ideology, 26 Cardozo L. Rev. 353 (2005).
32. Dawn E. Johnsen, Should Ideology Matter in Selecting Federal Judges?: Ground Rules for the Debate, 26 Cardozo L. Rev. 463, 476 (2005) ("The prospects for substantial change appear dim, at least for the short run.").
33. See generally Subcommittee on Separation of Powers of the Committee on the Judiciary, United States Senate, Advice & Consent on Supreme Court Nominations, 8 GREEN BAG 404 (symposium of scholars on the role of the Senate in nominations).
34. See, e.g., American Communications Ass'n v. Douds, 339 U.S. 382, 415 (1950) (Frankfurter, J., concurring)
35. Dennis v. United States, 341 U.S. 494, 519 (1951) (Frankfurter, J., concurring)
36. Galvan v. Press, 347 U.S. 522 (1954) (Frankfurter, J.).
37. For a discussion of whether Frankfurter, prior to his judicial appointment, αdvocated civil liberties solely or primarily as a political ideal, while taking a different stance regarding the institutional role of the Supreme Court in resisting encroachments on protected rights," see Norman Dorsen, Book Review, 95 Harv. L. Rev. 367, 377-380 (1981).