With the nomination of Samuel Alito to replace the retiring Sandra Day O'Connor, President Bush has his second opportunity to put his stamp on the Supreme Court. Here's a guide to how the selection and confirmation process works.
Once a president nominates a justice, what is required for him or her to become a member of the Supreme Court?
The Senate must vote to confirm the nomination. Since 1925, that Senate vote has often been preceded by hearings before the Judiciary Committee during which senators question the nominee on his judicial record, if any, and his approach to constitutional issues.
How many Supreme Court nominees has the Senate rejected?
Since 1789, the Senate has rejected 12 out of the 144 nominees, the most recent being Robert Bork in 1987.
Must nominees to the Supreme Court answer questions before the Judiciary Committee?
There is no constitutional or statutory requirement for them to testify.
The practice started in 1925, when nominee Harlan Fiske Stone faced some opposition from liberal senators over his career as a corporate lawyer prior to becoming President Calvin Coolidge’s attorney general.
One liberal senator called Stone a “tool of the House of [financier J.P.] Morgan” who had spent “all of his life in the atmosphere of big business.” To assuage the opposition, Stone agreed to appear before the committee and answer questions.
But nominees have often been unwilling to provide specific answers to senators’ questions about their legal views, mindful of the American Bar Association’s Code of Judicial Conduct, which says that nominees “shall not make ... statements that commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court.”
In 1939, when he went before the Judiciary Committee, nominee Felix Frankfurter told senators that “a nominee’s record should be thoroughly scrutinized by the committee,” but the nominee himself should take no part in that scrutiny.
It would, Frankfurter said, be “improper for a nominee no less than for a member of the Court to express his personal views on controversial political issues affecting the Court.”
When he was questioned by the Judiciary Committee during his confirmation hearings in September, Chief Justice John Roberts said, "Every one of the justices has been vigilant to safeguard against is turning this into a bargaining process. It is not a process under which senators get to say, 'I want you to rule this way, this way and this way. And if you tell me you'll rule this way, this way and this way, I'll vote for you.'"
He added, "Judges are not politicians. They cannot promise to do certain things in exchange for votes."
Does the confirmation process always take weeks, if not months?
In recent decades the confirmation process has been prolonged, but it was not always so: The morning after Justice John Hessin Clarke resigned in 1922, President Harding nominated his friend Sen. George Sutherland of Utah, and the Senate confirmed him that same day.
Who advises the president on his choice of Supreme Court nominees?
In recent decades, the White House counsel, the attorney general and a squad of lawyers in the Justice Department’s Office of Legal Counsel have compiled lists of potential nominees for the president to consider and conducted interviews of potential nominees.
What factors do presidents and their advisers take into account when choosing a nominee?
Apart from the president’s desire for ideological compatibility with his nominee, the principal factor is the likelihood of a nominee being confirmed.
Sometimes a president miscalculates, thinking a nominee is ideologically acceptable to the Senate when in fact he is not — Bork was a prime example.
If a president is in a politically dominant position, he has more latitude in choosing someone he prefers, rather than a nominee who would be more palatable to the Senate.
Dwight D. Eisenhower, a popular president, had no trouble getting his nominees confirmed. But it was a different environment in 1993 and in 1994, when President Clinton wanted to nominate his Interior Secretary Bruce Babbitt. Sen. Orrin Hatch and other Western Republican senators let Clinton know he would have a difficult time securing Babbitt’s confirmation due to quarrels between GOP Westerners and Babbitt over land use issues.
So when Justice Harry Blackmun retired, Clinton opted for a safe choice, federal appeals court Judge Stephen Breyer, who had worked as counsel for Sen. Edward Kennedy, then-chairman of the Senate Judiciary Committee in the 1970s. (Breyer was also a contender for the first Supreme Court opening of the Clinton presidency, but that spot went to Ruth Bader Ginsburg.)
Apart from ideology and Senate acceptability, what other factors determine the choice?
Presidents often nominate their friends and acquaintances, people they know and trust.
Andrew Jackson chose his friend Roger Taney as chief justice in 1836. Franklin Roosevelt was friends with three of his nominees, Frankfurter, William O. Douglas and Robert Jackson, the latter two being participants in Roosevelt’s poker games at the White House.
President Kennedy and his brother, Attorney General Robert Kennedy, were pals of Byron White, who served under Robert Kennedy in the Justice Department and who had worked on Kennedy's presidential campaign in 1960.
Lyndon Johnson’s nominee Abe Fortas had been Johnson’s confidant and factotum for 30 years.
Age also matters. Presidents often prefer nominees under age 60 who will be able to serve on the high court for 25 or 30 years. Cases in point: Rehnquist (47), White (44), Clarence Thomas (43), and Douglas, who was only 40 years old when FDR appointed him.
Religion, too, has weighed in presidents’ decisions. In 1956, Eisenhower, seeking to curry favor with Catholic voters, chose a Catholic (and a Democrat), William Brennan, for a vacancy on the court.
Ethnicity sometimes plays a role: Johnson wanted to make history by appointing the first black justice, and did so by choosing Thurgood Marshall in 1967.
Does the president personally interview a potential Supreme Court nominee before he decides to nominate him or her?
In some cases, presidents have interviewed potential nominees. When Sandra Day O’Connor met with President Reagan on July 1, 1981, she “all but clinched her nomination,” according to historian David Yalof.
But Breyer’s first interview with Clinton in June 1993 did not go well. Clinton said Breyer was “selling himself too hard” and “didn’t have a big heart.” Breyer didn’t get the offer; Ruth Bader Ginsburg did.
Can a potential nominee say “no” when the president asks him or her to serve on the Supreme Court?
It is hard to say “no” to the president of the United States, but Marshall did in 1798 when President John Adams wanted to appoint him as an associate justice. Marshall preferred to remain in his private law practice. He did say “yes” in 1801 when Adams chose him as chief justice.
In 1965, Abe Fortas was very reluctant to go on the court and kept rebuffing Johnson’s demands that he accept the nomination. Finally, telling Fortas he had no choice, Johnson simply marched before reporters in the White House theater with Fortas in tow and announced the nomination.