Judicial Selection

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Judicial Selection

• Michael C. Gizzi, Ph.D.
• Mesa State College
• Grand Junction, Colorado

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Outline

• I. Factors Presidents Consider Making
  Appointments
• II. The Process of Confirming Judicial Nominees
• III. Likely impact of the new justices on the
  Court

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Why are Supreme Court vacancies such a big deal?

• How long do judges serve?
• How can they be removed?

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Current Supreme Court
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I. Selecting a Justice

• Lets start by looking at the factors presidents
  consider selecting a justice

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Influencing the President

• many groups and individuals try to influence the
  presidents choice
• ABA Committee on the Federal Judiciary
• Sitting Justices
• Interest Groups
• Candidates themselves

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What criteria do you think presidents use to
select justices?
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Selection Criteria

• Objective Factors Competence, Ethics, Legal
  Qualifications
• Ideology / Policy Preference
• Building Political Support
• Political and Personal Reward

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Objective Factors

• Competence, ethics, and legal qualifications are
  gatekeeper factors
• Minimum qualifications
• Weaknesses in these areas can generate opposition
• Miers, Thomas, Ginsberg, Carswell, Haynsworth,
  Fortas

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Policy Preference - Ideology

• Ideology
• For most presidents in the modern period, the
  nominees perceived policy preferences or
  ideological disposition is a critical factor
• Ability of appointees to influence the Courts
  policies can be an important part of the
  presidents legacy
• WHY?

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Policy Preference - Ideology

• No guarantees that presidents will succeed in
  this goal
• Reagan OConnor and Kennedy on abortion
• Bush Souter
• Yet the more care taken, the more likely the
  justice selected will follow in the presidents
  ideological footsteps

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Political and Personal Reward

• About 60 of nominees personally knew the
  president who named them
• FDR, Truman, and Kennedy mostly selected personal
  acquaintances
• Trumans primary factor was rewarding political
  associates
• Eisenhower selected Warren as a political reward
  and a way to eliminate a potential rival
• GWBs selection of Harriet Miers seemed to be
  based on his personal relationship with her

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Building Political Support

• Selecting justices out of a desire to please
  constituencies and build political support
• Geography
• Race
• Gender
• Ethnicity
• Religion

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II. The Confirmation Process
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The Senates Record

• 109 individuals have served as Supreme Court
  justices
• 27 nominations have failed
• 11 were formally rejected
• 6 were postponed
• 5 had no action taken
• 5 withdrew their nomination before Senate action
• Since 1960, 25 (6) of 24 nominations failed

23.5 of all nominations have failed
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Confirmation Hearings

• Judiciary Committee Hearings have become a
  mainstay of the process
• They are a relatively new phenomena
• Justices only began testifying on their own
  behalf in the 1930s
• Supporters and Opponents of the nomination have
  the opportunity to present argument before the
  committee

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Interest Group Participation

• Interest groups have played a large role in the
  confirmation process
• at least as far back as the failed confirmation
  of John Parker in 1930
• The Bork Hearings in 1987 made use of modern
  media-based interest group technologies including
• television advertisements
• Direct mail and phone campaigns to senators

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Influences on the Outcome of Confirmations

• Presidents Political Strength in the Senate
• Presidents public approval
• Timing of the nomination
• Mobilization of Interest Groups
• Perceived Qualifications of nominees
• Perceived Importance of the nomination
• Perceived Ideology of the Nominee

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Senate Voting Over Nominees 1953 - 1994
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Evaluating the Nominations

• Lets briefly look at the nominations of - John
  G. Roberts as Chief Justice- Harriet Miers as
  Associate Justice- Samuel Alito as Associate
  Justice

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John G. Roberts - Nomination
Negatives
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Harriet Miers - Nomination
Negatives
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Samuel Alito - Nomination
Negatives
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Alito nomination?

• His calm demeanor avoided a Bork-like
  atmosphere
• Democrats seem unlikely to try to filibuster
• Not enough support among the gang of 14

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III. The impact of Roberts and Alito on the
Supreme Court?

• What impact will the new justices have on the
  Supreme Court?
• Again, it is hard to make predictions, but Chief
  Justice Roberts is a strong conservative who
  replaced a strong conservative
• Not likely to fundamentally shift the Court

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The Importance of OConnor

• The SWING vote
• She sided with the majority in more 5-4 decisions
  than any other justice
• Critical vote on issues such as abortion,
  homosexual rights, affirmative action, commerce
  cases, and religious freedom, among other issues

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Replacing OConnor

• If President Bush is successful getting Samuel
  Alito confirmed, it will have a big impact on the
  Court, pushing the Court to the right
• Yet, it is hard to imagine GWB nominating a more
  moderate conservative
• Most likely the Court will shift to the right

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Questions?

• Thank You.