                 History of Appointments to the Supreme Court

[T h e m e m o ra n d u m w h ic h fo llo w s , p r e p a r e d b y th e O ffic e o f L e g a l C o u n s e l a t th e re q u e s t
   o f th e A tto r n e y G e n e r a l, s u r v e y s f o u r g e n e r a l a s p e c ts o f th e p ro c e s s o f a p p o in tin g
   J u s tic e s o f th e S u p r e m e C o u r t: (1 ) th e q u a litie s P r e s id e n ts h a v e s o u g h t in S u p r e m e
   C o u r t n o m in e e s; (2 ) th e p ro c e s s o f r e c r u itin g a n d e v a lu a tin g p o te n tia l a p p o in te e s p r io r
   to n o m in a tio n ; (3 ) th e m a n n e r in w h ic h th e S e n a te fu lfills its re s p o n s ib ilitie s in th e
   a p p o in tm e n t p ro c e s s ; a n d (4 ) th e r e la tio n s h ip b e tw e e n th e '.'io c e s s o f c h o o s in g a
   c a n d id a te a n d a s u c c e s s fu l c a n d i d a te ’s e v e n tu a l p e r f o r m a n c e o n th e C 'u r t. T h e m e m o ­
   ra n d u m p a y s s p e c ia l a tte n tio n to th e ro le s p la y e d in th e a p p o in tm e n t p r o c e s s b y th e
   A tto r n e y G e n e r a l a n d th e D e p a r tm e n t o f J u s tic e ]


                                                                                                             March 5, 1980

            M EM ORANDUM FOR T H E ATTORNEY G E N ER A L

                                                      I. Introduction

   Aspirants to the Supreme Court, unlike presidential, vice-presidential,
and congressional candidates, are subject to no constitutional limitations
regarding age, citizenship, or residency. No statute requires that Jus­
tices even be lawyers, although every nominee so far has met this
criterion. Congress has considered bills to limit Supreme Court appoint­
ments either to persons under a particular age or to candidates with
prior judicial experience; no such limitation has ever been enacted. The
history of Supreme Court appointments is consequently a history of
presidential discretion limited formally only by the Senate confirmation
process, which also proceeds without direct constitutional guidance.
   In response to your request, this Office has surveyed some of the vast
literature relevant to the history of Supreme Court appointments.1 We
have addressed four general questions: What qualities have Presidents
sought in Supreme Court nominees? How are potential appointees re­
cruited and evaluated prior to nomination? How does the Senate fulfill
its responsibilities in the appointment process? Is there a predictable
relationship between the process of choosing a candidate and a success­
ful candidate’s eventual performance on the Court? In surveying the
history of nominations and appointments, we have paid special attention

    1   Secondary sources are cited in footnotes by au th o r and page number; a bibliography indicating the
full citation for each source is appended to this m em orandum . W e found the most useful general
review o f the history o f Suprem e C ourt appointm ents to be H. A braham , Justices and Presidents: A
PoliticalH isto ry o f A ppointm ents to the Suprem e C ourt (1974).


                                                                457
to the roles played in these processes by the Attorney General and the
Department of Justice.
   No one formula for choosing the “best” Supreme Court Justice can
be deduced from a historical survey. Who are the best candidates with
respect to any particular vacancy will depend on a host of factors,
including the President’s political philosophy, his perceptions of the
role of the Court in American government, the crucial issues facing the
nation at a given moment in history, and the Court’s changing institu­
tional needs. Neither can a Justice’s post-appointment performance be
predicted with entire confidence based on his pre-appointment career.
The uniqueness of the Court’s institutional role, the wide range of vital
questions that the Justices adjudicate, and the need for each Justice to
collaborate with eight others in reaching what often are controversial
results, all necessarily affect any appointee’s eventual record in the
decision of cases. The aim of this memorandum is consequently not to
elaborate, in any definitive way, how a great Justice might now be
chosen; its aim is to identify the range of issues of which the President
at least ought to be aware in exercising his discretion, and which this
Department should consider if it is to be helpful in the appointment
process.

                                  II. The Presidents’ Criteria

   Under Article II, § 2, clause 2 of the Constitution, the President
“shall nominate, and by and with the Advice and Consent of the
Senate, shall appoint . . . judges of the Supreme Court. . . .” All but
four Presidents—the exceptions so far including President Carter—have
successfully nominated at least one Supreme Court Justice. Presidents
have sometimes made their selection criteria explicit. George
Washington, for example, insisted on support of the Constitution, distin­
guished Revolutionary service, active political involvement, prior judi­
cial experience, geographic “suitability,” and either a good general
reputation or personal ties with the President himself.2 More often, the
criteria have been tacit and ad hoc. It is possible, however, based on
the history of, 104 successful Court appointments,3 to examine certain
factors that have weighed to some degree in all nominations.
A. A bility and Character

  President Herbert Hoover asserted that his Supreme Court ap­
pointees were “chosen solely on the basis of character and mental
power,” 4 and every President, in explaining his nominations publicly,

   2 A braham at 64.
   3 T h e 104 successful appointm ents include three successful “ prom otions’* o f A ssociate Justices to
the post o f C h ief Justice. T h e tola! num ber o f persons to have served so far in the C ourt is 101.
A braham at 46-47.
   4 T e g e r at 46.

                                                   458
has cited ability and character among his criteria for selection. Some
minimum of each is thus a sine qua non for a successful appointment.
The appropriate measure of “objective” merit, however, especially re­
garding judicial ability, may vary with the needs of the country and of
the Court when a vacancy occurs. With respect to some appointments,
the Court’s greatest need may be an exceptional intellectual leader, with
or without extensive political or administrative experience. At other
times, the Court may need a catalytic administrator or an effective
advocate more than it needs a truly brilliant thinker. An ideal candi­
date, of course, would be both intellectually gifted and politically
effective; the balance of these talents is likely, however, to vary even
within the pool of the nation’s best candidates.
   Because the number of capable individuals is much greater inevitably
than the number of places to be filled, few nominations have occurred
in which a candidate’s outstanding ability alone appears to have de­
cided his nomination. There are, however, exceptions. Although Presi­
dent Hoover wanted a “non-controversial western Republican” to suc­
ceed Oliver Wendell Holmes,5 he was persuaded by a long list of labor
and business leaders, scholars, and Senators that Chief Judge Benjamin
N. Cardozo of the New York Court of Appeals was the only fit
successor. The final straw breaking Hoover’s resistance appears to have
been the emphatic endorsement of Senator William E. Borah of Idaho,
the Republican chairman of the Foreign Relations Committee, who
reportedly told Hoover, “Cardozo belongs as much to Idaho as to New
York,” and “[g]eography should no more bar the judge than the pres­
ence of two Virginians—John Blair and Bushrod Washington—should
have kept President Adams from naming John Marshall to be Chief
Justice.” 6 When reminded that a Jewish Justice, Louis Brandeis, al­
ready sat on the Court, Borah said, “Anyone who raises the question of
race [sic] is unfit to advise you concerning so important a matter.” 7 A
similar chorus of support induced President Roosevelt to appoint Felix
Frankfurter as Cardozo’s successor. Roosevelt, like Hoover, wanted a
Westerner on the Court, although, had he found one to succeed
Cardozo, Frankfurter—already a Roosevelt adviser—likely would have
received a subsequent Roosevelt nomination.
   Not only is objective merit rarely the decisive criterion, but some of
the nation’s greatest Justices were apparently chosen without obvious
primary regard for their intellectual potential. Joseph Story, for exam­
ple, who probably ranks second only to John Marshall in his impact on
American law, was the fourth nomination submitted by President
Madison for the seat after two confirmed appointees (Levi Lincoln and
John Quincy Adams) had declined the position and a third nominee had

 * A braham at 191.
 • A braham al 192.
 7 A braham al 192.

                                  459
 been rejected by the Senate. In the end, it is uncertain what led
 Madison to Story, although it is known that Story’s uncle was a close
friend of the President.8
   Conversely, some candidates whose pre-appointment careers prom­
ised considerable success based on objective merit performed with little
distinction once appointed. The clearest recent example is Charles Evan
 Whittaker, an outstanding commercial lawyer from Missouri, who had
served briefly on both the U.S. District Court and Court of Appeals,
and who had won the strong support of Attorney General Brownell.
 President Eisenhower appointed W hittaker to the Supreme Court in
 1957; he resigned ^ years later with few significant Supreme Court
opinions to his credit.9
   To a President interested in demonstrated merit, prior judicial experi­
ence may appear a useful index. Fifty-eight of the 101 individuals to
serve on the Supreme Court had served earlier on a state or on a lower
federal tribunal. This asset, in this century, appears to have appealed
more to Republican than to Democratic Presidents. Of the 23 individ­
uals with prior judicial experience appointed to the Supreme Court
since 1900, only eight were appointed by Democrats, although, of the
44 persons named to the Court in this century, Democrats have named
 18. The 43 persons to serve without prior judicial experience on the
Supreme Court since its inception include John Marshall, Joseph Story,
Roger Taney, Charles Evans Hughes, Louis Brandeis, Harlan Fiske
Stone (when appointed Associate Justice), Felix Frankfurter, William
Douglas, Robert Jackson, and Earl W arren—a list that clearly demon­
strates the absence of any necessary correlation between judicial experi­
ence and capacity for distinguished service.
   Presidents have not viewed judicial service as a prerequisite to nomi­
nation. However, all but one of the 101 persons to sit on the Court
reached the Court after careers in politics or public service of some
sort.10 Although a record of judicial service may be helpful in facilitat­
ing an assessment of a candidate’s performance as a legal thinker,
Presidents appear historically to have been at least as concerned with a
person’s demonstrated acquaintance with the nation’s needs and public
processes, and sustained prior exposure to the pressures of public life.
Some history of functioning in a pressurized environment may help
assure that a nominee’s effectiveness and independence on the Court

    8 A braham at 79-81.
    9 A braham at 247-48.
    10 T h e one exception is G eo rg e Shiras, Jr.. a P ittsburgh co rp o rate law yer appointed to the C ourt in
 1892 by Benjamin H arrison. All five academ icians to reach the C ourt (four o f them appointed by
F D R ) had considerable experience in public life in addition to their academ ic backgrounds. Fourteen
A ttorneys G eneral have been nom inated to the C ourt. N ine w ere successfully appointed—Taney,
C lifford, M oody, M cK enna, M cR eynolds, Stone, Jackson, M urphy and C lark. T w o w ere rejected by
the Senate and tw o w ithdrew before confirm ation. O ne, Edw in M. Stanton, was confirm ed, but died
before taking his seat. A braham at 52; Schm idhauser at 82-83.


                                                      460
will not be overcome by public criticism or the magnitude of the issues
that the Court confronts.

B. Political and L egal Philosophy

   Because intellect is rarely the sole determinant of a Supreme Court
nomination, and because most Presidents have attached great impor­
tance to the Supreme Court’s role in legitimating particular policies or
national goals, the acceptability of a candidate’s personal philosophy is
often another sine qua non for nomination. As with “merit,” however,
what constitutes an acceptable philosophy may depend on the times, on
the President’s attitude towards the Court, and on a candidate’s fitness
in other respects. For example, political considerations, such as reward­
ing partisan activity or defusing potential political opposition, may
argue in favor of a particular nomination, although the appointing
President could have identified a more personally compatible choice. In
the case of Earl Warren, nominated by President Eisenhower for the
Chief Justiceship in 1953, the President was likely impressed by
Warren’s political and administrative experience and skill, his positions
on particular issues (such as the 1937 Court-packing bill and the 1952
steel seizure case), and his campaign service both to Eisenhower and to
Thomas E. Dewey before him. However, Warren was also obstructing
the takeover of California Republican politics by more partisan leader­
ship, including Vice-President Nixon. Perhaps, had it not been for this
last factor, Eisenhower would have turned to Governor Dewey or to
Chief Justice Vanderbilt of the New Jersey Supreme Court for the
vacant post.11 In any event, Eisenhower did not know W arren’s philos­
ophy well (he sent Attorney General Brownell to interview him before
the nomination), and disagreed with the philosophy eventually mani­
fested in Warren’s decisions.
   At particular times in history, the importance of a single issue to the
nation’s welfare or to a President’s program has seemed so great that a
candidate’s position on that issue, rather than his philosophy as a whole,
became the litmus test of his acceptability. Obvious examples include
the cause of Unionism under Lincoln, the constitutionality of green­
backs as legal tender under Grant, and the legitimacy of extensive
government regulation under Franklin Roosevelt. The single-issue test,
however, hardly guarantees a particular justice’s pattern of thought.
For example, the fervent antitrust position of Attorney General James
Clark McReynolds undoubtedly recommended the idea of his nomina­
tion highly to President Wilson. However, once on the Court,
McReynolds proved to be an unabashed conservative, and virtually all
of his other positions were opposed to Wilsonian prpgressivism.

  11 A braham at 235-37.


                                     461
   Consequently, those Presidents most deeply interested in appointing
politically compatible Justices have focused neither on single-issue posi­
tions, nor on partisan identification, but on the overall pattern of a
candidate’s values and opinions. As explained by Theodore Roosevelt
to Senator Lodge, in a much-quoted 1906 letter discussing the potential
appointment of Justice Lurton: “ [T]he nominal politics of the man has
nothing to do with his actions on the bench. His real politics are all
important.” 12
   The clearest recent expression of this approach to the selection of
Supreme Court justices was offered by Presidential candidate Nixon, in
discussing what he would do to replace Chief Justice Warren:
          The President cannot and should not control the decisions
          of the Supreme Court. . . . There are two important
          things I would consider in selecting a replacement to the
          Court. First, since I believe in a strict interpretation of the
          Supreme Court’s role, I would appoint a man of similar
          philosophical persuasion. Second, recent Court decisions
          have tended to weaken the peace forces as against the
          criminal forces in this country. I would, therefore, want
          to select a man who was thoroughly experienced . . . in
          the criminal laws and its [sic] problems.13
Nixon said he wanted:
          strict constructionists who saw their duty as interpreting
          and not making law. They would see themselves as care­
          takers of the Constitution and . . . not super-legislators
          with a free hand to impose their social and political view­
          points on the American people.14
   When they are measured against these standards, there is no reason
to think that, on balance, Nixon would be disappointed with his ap­
pointees’ performances on the Court. The most obvious exception may
be Justice Blackmun’s decision in the abortion cases, a decision no one
could likely have anticipated.15 Chief Justice Burger also has written or
joined in strong pro-integration decisions.
   One reason why a nominee’s performance may eventually surprise
the President who appointed him is the potential confusion, in the
recruitment process, between a candidate’s political and judicial phi­
losophies. Franklin Roosevelt, for example, wanted ardent New Deal
supporters on the Court. One such clear supporter was Felix Frank­

   12 Schubert at 40.
   , 3 A shby at 366, (quoting Congressional Quarterly Almanac, 91st Cong., 1st Sess. (1969) at 130).
   14 id.-
   16     It should also be noted that N ixon's ability to appoint a personally com patible Justice w as most
sharply curtailed by the time he nom inated Justice Blackmun, because the failure o f the H aynsw orth
and C arsw ell nom inations m ade it politically necessary to locate a noncontroversia) m oderate.
A braham at 9.


                                                  462
furter. The central theme, however, of Justice Frankfurter’s judicial
philosophy proved to be judicial restraint. He believed that the consti­
tutional distribution of powers among the branches of the federal
govenment and between the federal and state governments required the
Court to avoid decisions that he deemed merely the imposition of its
own value choices on political authorities who were constitutionally
empowered to decide the same value questions differently. This defer­
ence to the elected branches enabled Frankfurter, as a Justice, fully to
support the New Deal legislative program. However, Frankfurter’s
record in interpreting the Bill of Rights would appear far less libertar­
ian than that of other FDR appointees, especially Douglas, Black, and
Murphy, despite similar personal philosophies, because his judicial phi­
losophy was so much less expansive.
   In this vein, it should especially be noted that shorthand labels for
candidates’ philosophies can be misleading. President Nixon advocated
“strict constructionism,” but appointed at least one Justice, William
Rehnquist, whose clear views of the constitutionally mandated distribu­
tion of powers, like most theories on the subject, is not compelled
either by the language of the Constitution or by judicial precedent. For
this reason, Rehnquist, though politically conservative, has been viewed
by some as a judicial activist.16 Conversely, Hugo Black, generally
considered one of the nation’s greatest liberal jurists, reached strongly
libertarian results through “strict construction” of the First Amend­
ment. 17
   A President should also recognize, if his aim is to affect the general
direction of Court decisions, that his purpose can not always be best
accomplished by an intellectually gifted person adhering unwaveringly
to the President’s or to any other doctrinaire point of view .18 Critical
to any Justice’s potential influence is his ability to function effectively
in a collegial decisionmaking context. Because a Supreme Court Justice
is wedded to his colleagues for life, a gift for diplomacy, including a
willingness to compromise when necessary, will make his presence
more tolerable and his eventual contributions more persuasive. The
indicia of political acceptability cannot be viewed wholly apart from
the criteria of ability. A record of public or civic service; a strong,
confident, and tolerant personality; and a mature temperament joined
with legal ability and intellect mark not only the gifted potential judge,
but also the effective institutional advocate.


   16 See generally Shapiro, Mr. Justice Rehnquist: A Preliminary View, 90 H arv. L. Rev. 293 (1976).
   17 Rubin, Judicial Review in the United States, 40 La. L. Rev. 67, 77 (1979).
   18 F o r a highly elaborate, m athem atically based theory for guiding Presidents in the selection of
Justices w ho will influence C ourt dispositions, see S. T eger, Presidential Strategy fo r the Appointm ent o f
Supreme Court Justices (1976) (unpublished U. o f R ochester Ph.D . thesis. L ibrary o f Congress).


                                                     463
C. E nhancing the R epresentativeness o f the C ou rt

   In narrowing the pool of potential nominees, Presidents have fre­
quently considered what category of individuals might enhance public
perceptions of the “representativeness” of the Court. The primary
measure of representativeness, as pursued by the Presidents, has been
geographical. Although the Constitution does not require regional bal­
ance, a desire for it underlies, in part, the constitutional designation of
the President to nominate Supreme Court Justices. It is recorded that,
during the debate on this provision, James Madison urged the Constitu­
tional Convention, “The Executive magistrate would be considered as a
national officer, acting for and equally sympathizing with every part of
the United States.” 19 In a variety of constitutional provisions, the
Framers clearly sought to avoid sectional domination of the Govern­
ment, and it might be argued that, in seeking geographical balance on
the Court, a President is respecting a value implicit in our constitutional
system.
   Geographic balance was most clearly a presidential consideration
with respect to Supreme Court appointments through the late 19th
century. In selecting the original members of the Court, George Wash­
ington chose representatives of New York, Pennsylvania, Massachu­
setts, Virginia, and South Carolina. As the country moved westward,
each President, starting with Jefferson, began to seek seats first for
Justices from states west of the Alleghenies, then from west of the
Mississippi, and finally, with Lincoln’s appointment of Stephen J. Field
of California, from the Far West. Andrew Jackson, who made seven
nominations, tried scrupulously to have represented each circuit in the
nation’s growing judicial system. The balance of Northerners and
Southerners was also of obvious political significance, both before and
after the Civil War. Part of President Hayes’ program of
postreconstruction reconciliation was the appointment of a Southerner
(although Northern-born), William Woods, to the Court in 1880. The
symbolism was consummated in 1887 by President Cleveland’s appoint­
ment of Lucius Q. C. Lamar, the first “real” Southerner to reach the
Court since 1853, and a former member of both the Confederate Army
and the government of the Confederacy.20
   In this century, although remaining of some concern, the emphasis on
regionalism has been less obvious. Some Presidents have more or less
disavowed its importance. Theodore Roosevelt wrote, “I have grown
to feel, most emphatically, that the Supreme Court is a matter of too
great importance to me to pay heed to where a man comes from.” 21

 19 Pad o v er at 405.
 20 A braham at 131.
 21 A braham at 146.


                                      464
Roosevelt appointed, within a 4-year period, two Justices from Massa­
chusetts, Oliver Wendell Holmes and William H. Moody. A similar
“imbalance” occurred under Presidents Coolidge and Hoover, who
appointed three New York Justices—Chief Justice Hughes and Associ­
ate Justices Stone and Cardozo. This imbalance, lasting 8 years, oc­
curred notwithstanding Hoover’s reluctance, before picking Cardozo,
to choose another New Yorker for the Court.
   The Supreme Court currently includes two Minnesotans (both ap­
pointed by Nixon), and one Justice each from New Jersey, Ohio,
Colorado, Maryland,22 Virginia, Arizona, and Illinois. The most recent
New Englander to serve on the Court was Chief Justice Stone, who
died in 1946. The most recent representative pf the Deep South was
Hugo Black, who died in 1971, although in selecting Justice Powell to
succeed Black, President Nixon emphasized Powell’s southern origins.
   Although not explicitly contemplated during the constitutional de­
bates, Presidents, for political reasons or otherwise, have also sought
“balance” with respect to other criteria as well: partisan affiliation,
religion, and, most recently, race. There continue to be strong pressures
to appoint a woman Justice.
   It is arguable that such considerations as race, religion, ethnicity, or
sex are offensive criteria in the choice of Justices, because they distract
from the idea of simply choosing the “best” persons for the Court or
from the constitutional grant of total discretion to the nominating
President. It is also arguable, however, that diversity on the Court
boosts public confidence in the legitimacy of the Court’s decisions. In
addition, presidential concerns for diversity may properly affirm egali­
tarian ideals in the society at large and the value of diversity itself.
   As the record now stands, of the 101 people to serve on the Court,
all have been men, 100 have been white, 95 have been of Anglo-Saxon
descent, 95 have been native-born, and almost all have been Protes­
tant.23 Roger Taney, a Catholic and the first non-Protestant appointed,
served from 1836 to 1864. Thereafter, one seat on the Court was held
by a Catholic from 1894 to the present, except for a 7-year period
between 1949 and 1956.24 Louis Brandeis, the first Jewish Justice, was
appointed in 1916. At least one seat on the Court between 1916 and
1969 was held by a Justice who was Jewish.25 Thus, except for a
pattern of regional diversity, the history of the Court reveals a largely
homogeneous membership when measured according to the most obvi­
ous criteria of social background.

  22 T hough appointed from N ew York, Justice M arshall w as b o m and started his legal c aree r in
Baltimore. A shby at 320-26.
  23 A braham at 53.
  24 This g roup includes Justices E. D. W hite, M cK enna, Butler, M urphy, and Brennan. A braham at
56-57.
  25 This group includes Justices C ardozo, Frankfurter, and G oldberg. A braham at 58.


                                               465
D. O th er C riteria

    Ability, character, and philosophical or representative suitability
hardly exhaust the list of criteria evident in the nominations made to
the Court thus far. Age and health, of course, have played major parts.
The appointment of a younger person to the Court may help assure a
new Justice’s continued influence over a long period, or at least help
assure the Court of the continued aid of a physically vigorous individ­
ual. In one case, perhaps, a President used old age as a criterion.
William Howard Taft’s appointment in 1910 of the 66-year-old Edward
D. White to be Chief Justice may have been motivated, in part, by
Taft’s desire to assure the subsequent occurrence of a vacancy that he
himself could assume after his Presidency.26
    Other considerations in the choice of nominees may include friend­
ship, the rewarding of political partisanship or of particular public
service, the effective elimination of a political opponent, placating po­
litical opposition or securing political support. None of these alone has
likely secured the position of a Supreme Court Justice; however, each
has been among the motivations underlying the selection of particular
nominees from pools of otherwise qualified persons.
   The presence of ulterior motives in the nominating process or a close
association between a nominee and the appointing President of course
need not correlate with the candidate’s unsuitability on other grounds.
Among the justices appointed by the Presidents of whom they were
close personal or political allies are Roger Taney (Jackson), Stephen
Field (Lincoln), Harlan Fiske Stone (Coolidge), and Felix Frankfurter
(FDR), all of whom would have qualified under any set of criteria.
   However, although no clear formula exists for the selection of a great
future Justice or one set formula to identify a fit nominee, the Presi­
dent’s thinking perhaps may usefully be guided by a set of general
principles. With respect to criteria closely related to a person’s likely
performance on the Court, some high degree of ability, character,
health, and philosophical compatibility ought to be viewed as a set of
threshold requirements. Having identified a pool of qualified finalists,
the President could then—without undermining public confidence in his
choice—consider other criteria, e.g., geographic suitability, background
(sex, race), or rewarding public service, that might legitimately play a
part in his ultimate selection. To the extent his criteria might be consid­
ered personal or political favoritism, he should be all the more careful
that his choice be defensible when measured against other candidates
and against criteria related to likely performance. Though no President
can guarantee greatness in his appointees, he can likely avoid serious
disappointment by soliciting a variety of suggestions for any vacancy,
evaluating candidates across a wide range of criteria, and, in analyzing

 26 A braham at 159.


                                   466
his personal preferences, bearing in mind the Court’s needs and public
perceptions of the Court.27
                    III. Identification and Evaluation of Nominees

  Because presidential acquaintance and selection criteria rarely limit
the pool of eligible candidates for the Supreme Court to one, Presidents
ordinarily rely to some degree on the assistance and advice of others in
choosing their nominees. Analytically, such assistance may be viewed
as coming in two stages: first, the identification of suitable candidates
for the Court; second, the more exacting evaluation of the serious
contenders.
A. Identification o f Potential Nominees

   Potential sources of information concerning suitable candidates are
almost endless. Solicited or unsolicited suggestions may come from the
President’s advisers, both official and unofficial, as well as from Mem­
bers of Congress, sitting members of the judiciary, legal scholars, state
bar representatives, concerned private citizens and candidates them­
selves.
   Some instances are known in which Congress pilayed a strong role,
invited or otherwise, in the candidate identification process. In perhaps
the most dramatic instance, Thomas Jefferson, in his search for a
Supreme Court Justice to come from west of the Appalachians, asked
each Member of Congress to suggest two names. He selected Thomas
Todd of Kentucky, the one person named as first or second choice by
every Member of Congress from the new Seventh Circuit, which com­
prised Kentucky, Ohio, and Tennessee. Later in the 19th century,
Congress mounted notable, though uninvited campaigns for President
Lincoln’s 1862 nomination of Samuel M iller28 and for President
Grant’s 1869 nomination of Edwin M. Stanton.29 Although these are
exceptional examples of congressional activism, suggestions by individ­
ual Members of Congress, particularly from the leadership, are un­
doubtedly common.
   Suggestions from sitting judges or Justices may also be expected.
Indeed, in one case, the entire incumbent Supreme Court wrote to the
President to urge the nomination of a particular candidate: John Camp­
bell of Alabama, who was nominated for the Court in 1853 by Presi­

   27 A President should also be aw are o f the extent to w hich an appointm ent may, as a m atter o f
political fact, “change the law.'* T h e re are issues, such as federalism, affirm ative action, the death
penalty, abortion rights, and school desegregation, on w hich law yers and political scientists perceive
the current C ourt in flux. T h e balance o f C o u rt opinion on issues in these areas may be affected by a
new Justice, although Presidents typically have not been successful in making new law through
individual appointm ents. This is attributable not only to the unpredictability o f an individual's view s
and behavior, discussed above, but also to the Justices' ordinary adherence to precedent, by w hich
most Justices consider them selves guided, if not bound.
   28 Schubert at 41-44.
   20 A braham at 118.

                                                   467
dent Pierce.30 Chief Justices may more routinely offer their views on
nominations. The most active campaigner among Chief Justices was
likely William Howard Taft. Taft had appointed six men to the Court
during his tenure as President, and appears to have been principally
responsible for selecting three nominees, including himself as Chief
Justice, for President Harding.31 More recently, Chief Justice Burger is
known at least to have supported the nominations of Associate Justices
Blackmun and Powell.32
   Where Presidents have turned to Cabinet officers for advice, it is
common for the Attorney General to play a major role both in suggest­
ing and in evaluating nominees. George Washington initiated the prac­
tice by asking Edmond Randolph to prepare a list of candidates for the
bench.33 In recent decades, Attorneys General Cummings and Biddle
(for FDR), Brownell (for Eisenhower), Robert Kennedy (for John
Kennedy), Mitchell (for Nixon), and Levi (for Ford) all performed
significant “screening” functions during the nominations process. How­
ever, just as no legal provision limits presidential criteria for candidate
selection, there are no formal limitations or requirements binding the
President to any particular system of identifying Supreme Court candi­
dates.34

B. Evaluation o f Nominees (Herein, the Roles o f the Departm ent o f Justice
and o f the American Bar Association)

   Whoever is responsible for identifying plausible candidates, the func­
tion remains of evaluating the serious contenders according to the
President’s criteria. In 1789, when the Judiciary Act established a
federal bench comprising 19 judges, the evaluation process could rely
with some success on the personal knowledge of the President and of
his close advisers. Even for a nine-member Supreme Court, however,
this is no longer a wholly satisfactory option. The far greater pool of
available talent today and the intensity of public scrutiny to which
nominees are currently subjected make it desirable to follow a more
rigorous and dependable information-gathering process.
   A tradition is now well established of active Attorney General and
Department of Justice participation in the process of evaluating Su­
preme Court nominees. The exact pattern of participation has varied
with different Presidents. The Attorney General, with whatever De­

   30 A braham at 104.
   31 A braham at 21, 155.
   32 W oodw ard and A rm strong at 87, 160.
   33 R ogers at 38.
   34 F o r a time, in the early 19th century, the D epartm ent o f Stale w as assigned the function of
offering the President recom m endations concerning all appointm ents. Even after A ttorney G eneral
C ushing in 1853 reassumed the assignment for his office w ith respect to judicial appointm ents,
A tto rn ey G eneral Bates, under Lincoln, was still able to com plain that the Secretary o f the T reasury
had been instrum ental in making many appointm ents “w ithout any reference to legal and judicial
qualifications." R ogers at 39.


                                                  468
partment assistance he seeks, may initiate a study of potential nominees.
The Department also plays a special role in marshalling the recommen­
dations of private groups and individuals, most notably—since the Ei­
senhower Administration—of the American Bar Association (ABA)
Standing Committee on Federal Judiciary (the ABA Committee).
   The practice of soliciting formal ABA views on Supreme Court
nominations began with President Eisenhower’s 1956 nomination of
Judge William J. Brennan, Jr. to replace Justice Minton. The President
had assigned to Attorney General Brownell and the Department of
Justice the task of recommending a nominee to meet four specific
criteria: an exemplary personal and professional reputation for legal and
community leadership; good health; relative youth; and ABA “recogni­
tion.” He also expressed a preference for giving most serious consider­
ation to the promotion of an outstanding lower court judge.35
Brownell, to whom Judge Brennan was strongly recommended by New
jersey’s Chief Justice Vanderbilt, the New Jersey Bar Association, the
American Judicature Society, and a host of other organizations,36 sub­
mitted Brennan’s name to the Federal Bureau of Investigation for a full-
field investigation and to the ABA Committee for its assessment of
professional qualifications. The results of the ABA and FBI investiga­
tions were presented to the Attorney General for his consideration and
eventual review with the President.37
   FBI full-field checks on proposed nominees are routine. Since the
Brennan appointment, however, the mode of ABA input has varied
from nomination to nomination. Through the Johnson Administration,
it was typical practice to afford the ABA a very brief investigation
period prior to the announcement of a nomination. The resulting time
pressure apparently made it difficult for the ABA to rely successfully,
in its view, on any precise system of ranking nominees. For example,
with Justice Goldberg’s nomination in 1962, the Committee decided to
abandon any statement seeming to rank or quantify the nominee’s
suitability, and instead offered the statement that the nominee was
“highly acceptable from the point of view of professional qualifica­
tions.” 38
   For undisclosed reasons, President Nixon abandoned the practice of
consulting the ABA prior to announcing his nominees, a decision that,
with respect to the President’s attempts to find a successor to Justice
Fortas, seemingly contributed to controversial results both for the
President and for the ABA. The ABA Committee, like the general
public, learned of the Nixon nominations only from the President’s
announcements. With the invitation of the Senate Judiciary Committee,

 35 R ogers at 39-40; A braham at 235.
 36 A braham at 245.
 37 R ogers at 40.
 38 Walsh at 556.


                                         469
 the ABA Committee first reviewed the qualifications of Judge Clement
 F. Haynsworth, Jr., the first Nixon nominee to the Fortas seat. The
 Committee unanimously found Haynsworth “highly qualified” for the
 post, a conclusion that it later ratified only 8-4 after public disclosures
 during the confirmation process indicated possible insensitivity on
 Judge Haynsworth’s part to financial conflicts of interest.
   When the Senate defeated the Haynsworth nomination, President
 Nixon, acting again on the recommendation of Attorney General
 Mitchell, nominated Judge G. Harrold Carswell, a former U.S. district
judge in the Northern District of Florida who had recently been ap­
 pointed to the U.S. Court of Appeals for the Fifth Circuit. Mitchell was
reported to have said of Carswell, “He is almost too good to be
true.” 39 Sensitized by the Haynsworth debate and apparently hoping
to avoid dissent on the degree of a nominee’s suitability, the ABA
Committee, in assessing Carswell’s background, reverted to a “quali-
fied”/ “not qualified” system of evaluation, and reported Carswell
 “qualified.” When Carswell, during the confirmation process, was at­
tacked for mediocre judicial talent and hostility to civil rights, and
ultimately defeated, the prestige o f the ABA also suffered, although
ABA Committee Chairman Lawrence E. Walsh defended the Commit­
tee’s assessment in light of its investigation into Carswell’s performance
on the Fifth Circuit.40
   President Nixon again did not consult the ABA Committee before
announcing his third nominee to the Fortas seat, Judge Harry A.
Blackmun of the U.S. Court of Appeals for the Eighth Circuit. Chief
Justice Burger supported Blackmun’s nomination, and the candidate
was interviewed by Attorney General Mitchell and the Assistant A ttor­
neys General in charge of the Office of Legal Counsel and the Tax
Division.41 The ABA Committee again conducted a post-announce­
ment evaluation. It adopted a “not qualified”/ “not opposed”/ “meets
high standards of integrity, judicial temperament, and professional com­
petence” system of ranking, seeking to avoid the appearance of a
plenary endorsement for a merely acceptable candidate and emphasiz­
ing the assertedly nonideological character of its endorsement for a
highly qualified candidate.42 The ABA Committee turned in its most
extensive report ever on a Supreme Court nominee for Judge
Blackmun, finding that he met “high standards of integrity, judicial
temperament, and professional competence.” 43 The Senate unani­
mously confirmed the Blackmun nomination on May 12, 1970.
   These events, however, did not conclude the Nixon Administration’s
history o f difficulties with the ABA. In September, 1971, Justices Black

 38   A braham at 6.
 40   W alsh at 556-57.
 41   W o o d w ard and A rm strong at 86.
 ■«   W alsh at 560.
 «    W alsh at 560.


                                             470
and Harlan resigned, leaving the President the task of replacing two of
 the Court’s most highly esteemed members. Attorney General Mitchell
 had written in July, 1970, to ABA Committee Chairman Walsh that the
 Administration would henceforth submit lists of Supreme Court candi­
dates to the Committee for its evaluation prior to nomination, an
announcement that won high acclaim in light of the ABA’s rigorous
work on the Blackmun nomination.44 The President’s first suggested
candidate was Rep. Richard H. Poff of Virginia, who received the
Committee’s highest recommendation, but the President withdrew his
name from consideration when the press reported his past anti-civil
rights statements.
   The Administration’s next submission was a list of six names, includ­
ing California Court of Appeals Judge Mildred Lillie, Arkansas munici­
pal bond lawyer Herschel H. Friday, D.C. Superior Court Judge Sylvia
Bacon, Sen. Robert C. Byrd of West Virginia, and Judges Charles
Clark and Paul H. Roney of the U.S. Court of Appeals for the Fifth
Circuit. The first two were the President’s top choices—Mr. Friday
was a close friend of Attorney General Mitchell and had been recom­
mended by Chief Justice Burger and Justice Blackmun—and the Com­
mittee devoted almost all its investigative work to them.45 The A ttor­
ney General had recommended the submission of their names notwith­
standing reservations expressed by White House Counsel John Dean
and Assistant Attorney General Rehnquist concerning their judicial
experience and lack of constitutional law background.46 The results
were a unanimous vote of “not qualified” for Judge Lillie and a 6-6 tie
between “not qualified” and “not opposed” for Mr. Friday. News of
the ABA actions reached the press within hours of its report to the
Attorney General; the ABA urged the President to “add some people
with stature” to his list.47 The Administration informed the ABA in a
letter from the Attorney General to Chairman Walsh that it could no
longer rely on the confidentiality of the Committee, and would return
to its practice of submitting nominations directly to the Senate.48
   According to two commentators, Attorney General Mitchell acted
prior to the ABA Committee’s formal vote to solicit the acceptance by
another candidate, former ABA president Lewis F. Powell, Jr., of his
nomination to the Black seat.49 Mitchell and Deputy Attorney General
Kleindienst recommended to the President his eventual nominee for the
Harlan seat, Assistant Attorney General Rehnquist.50 Subsequent to the

 44 A braham at 28.
 45 A braham at 10,   29.
 46 W oodw ard and    A rm strong at 159.
 47 A braham at 10.
 49 A braham at 30.
 49 W oodw ard and    A rm strong at 160.
 50 W oodw ard and    A rm strong at 161.


                                            471
 President’s announcement of his choices, the ABA Committee voted
 unanimously that Powell met “high standards of integrity, judicial tem­
 perament, and professional competence.” Eight members of the Com­
 mittee voted the same endorsement of Rehnquist, with four voting “not
 opposed.” Powell was confirmed by the Senate almost immediately,
 and Rehnquist, within several weeks.
   In contrast to this stormy history, the Department of Justice and the
 ABA enjoyed a smooth relationship during the process of evaluating
 candidates in 1975 to succeed Justice William O. Douglas. President
 Ford and Attorney General Levi returned to the practice of submitting
 names to the Committee for its evaluation prior to nomination. On the
 day of Douglas’ retirement, Levi submitted a list of candidates to the
 ABA Committee.51 The Committee unanimously gave Levi’s first
 choice, Judge John Paul Stevens of Chicago, its highest rating. Judge
 Stevens was subsequently nominated and confirmed without difficulty.
   These events underscore significant questions of how best to make
 use of the assistance and resources of private parties in the evaluation of
 Supreme Court candidates and, at the same time, maintain the full
 scope of presidential discretion that the Constitution provides for the
 nomination of Supreme Court Justices. ABA assistance can undoubt­
edly be helpful in the evaluation of Supreme Court candidates, al­
though how best to accomplish its role has itself been a subject of long
debate by the ABA Committee. The Committee describes its function
as limited to an examination of “professional competence, judicial tem­
perament, and integrity,” 52 about which it is undoubtedly able to
express an educated point of view. As time permits, the Committee’s
investigation includes interviews with judges, scholars, lawyers, public
officials, and other parties likely to have information regarding a nomi­
nee’s qualifications, plus a review of the nominee’s writings by teams of
law school professors and practicing lawyers. The ABA Committee’s
conclusions based on this kind of thorough study may be a useful guide
to the President or his advisers in applying the President’s criteria
during the nomination process.
   However, extensive ABA input, especially before nomination, may
lead to criticism that an organization that is not responsible to any
public political process is exercising undue influence in the presidential
selection of nominees.53 The ABA Committee currently comprises 14
members—one member at-large and one practicing lawyer from each of
the geographic areas covered by the 11 judicial circuits, except for the
Fifth and Ninth, which areas—because of their size—have two mem­
bers each. There can be no assurance, however, that it fully represents
the American public, or even the American bar, given that nearly half

 M A m erican Bar A ssociation at 2.
 52 A m erican Bar A ssociation at 2.
 53 A braham ait 23; G rossm an at 212-15; M urphy and P ritchett at 76-77; Schm idhauser at 28-33.


                                              472
the lawyers in the United States do not belong to the ABA. Neither is
there any government control over the exhaustiveness of its survey or
the objectivity of its evaluation. Though consultation with the ABA
prior to nomination may confer advantages in the evaluation process, it
may risk the public’s perception that the selection process for the least
politically accountable branch of government is itself being removed a
step from public accountability.54
   What is not open to question is that, whatever sources are consulted
prior to nomination, the pre-nomination investigation of any nominee
should be deep, broad, and disinterested enough to assure an informed
evaluation of the nominee’s professional qualifications, temperament,
health, and integrity. So long as the goals of the investigative process
and the advisory roles of the participants are clearly defined, it should
be possible to avoid the difficulties encountered during the Nixon
nominations and make the best possible use of information from all
sources.

                               IV. The Confirmation Process

   Once the processes of candidate evaluation produce a nominee, the
President submits his choice for the “advice and consent” of the Senate.
For the first half of this century, it appeared that the Senate’s role in
materially influencing the selection of a Justice had ended; its confirma­
tion of presidential nominees was virtually automatic.55 Though equal
participation by the Senate and the President in choosing Justices may
be gone, however, the Senate has significantly reasserted its hand in the
selection of Justices since 1968. Since the conditional resignation of
Earl Warren from the Chief Justiceship, four presidential nominations
for the Chief or an Associate Justiceship have been withdrawn or were
defeated at least in part because of Senate action.56
   The Senate’s procedure following nomination is straightforward.
Except in the cases of two ex-Senators, the Senate has always referred
Supreme Court nominations to the Senate Judiciary Committee. Since

   54    It has been debated since 1973 w h eth er the reporting and o th er “sunshine’* provisions o f the
Federal A dvisory Com m ittee A ct, 5 U.S.C. A pp. § 10, apply to the A B A C om m ittee in its role o f
advising this D epartm ent. T h e Office o f Legal Counsel concluded in 1973 that the A ct does c o v er the
ABA Com m ittee, although the practical effects o f such co v erag e on the operation o f the C om m ittee
w ould be limited. This position was affirm ed in a February, 1974, letter from A ttorney G eneral Saxbe
to the. A BA Com m ittee. A fter fu rth er correspondence. A ttorney G eneral Saxbe inform ed the C om m it­
tee in O ctober, 1974, that O L C , under then Assistant A tto rn ey G eneral Scalia, had reexam ined the
issue and found that the A ct did not c o v er the ABA Com m ittee.
   95 Prior to 1968, the Senate failed only once in this century to confirm a presidential nom ination to
the Suprem e C ourt: President H o o v er’s 1930 nom ination o f Judge John J. P arker to be an A ssociate
Justice. Sw indler at S36.
   56    Justice Fortas w ith d rew his nom ination for the C h ief Justiceship in O ctober, 1968, after the
Senate failed to end a filibuster preventing a vote on his elevation. His action elim inated the
prospective vacancy to w hich President Johnson had nom inated Ju d g e H om er T h o rn b erry o f the
Fifth C ircuit. In 1969, the Senate defeated President N ixon's first nom inee to succeed Justice Fortas,
Judge C lem ent F. H aynsw orth, Jr. In 1970, it defeated his second nominee. Judge G . H arrold
Carsw ell. A braham at 266; Sw indler at 536.


                                                  473
 President Coolidge’s nomination in 1925 of Harlan Fiske Stone to an
 Associate Justiceship, the committee has usually interviewed the nomi­
 nee in person.57 It is modern practice, since President Roosevelt’s 1938
 nomination of Stanley Reed, for the committee to hold public hearings
 on the nomination.58 If the committee recommends approval, as it
 invariably has in recent decades, the nomination is sent to the floor for
 debate and an eventual vote by the entire Senate. Confirmation requires
 a majority vote.
   The factors that may affect the results of a Senate confirmation vote
 are innumerable; long and complex explanations have been written
concerning the politics of the confirmation process. Although the his­
 tory is fascinating, this memo will only briefly consider the politics of
confirmation to underline the one relevant and perhaps obvious point
that Senators’ opposition to a candidate may not relate in any way to
the President’s criteria for choosing a suitable candidate for the Court.
This is understandable because Senators may well decide their votes
based on partisanship, individual animosity, opposition to a nomination
by constituent or special interest groups, ideological differences, or
intraparty politics.59
   One commentator has usefully divided the reasons for Senate opposi­
tion to a candidate into three categories: reasons related to the charac­
ter, ability, or integrity of the candidate; reasons related to partisanship
or the candidate’s ideology; and reasons related to a candidate’s prior
identification with the unpopular side of a significant political contro­
versy.60 The stronger the opposition to a candidate, the more likely the
nominee is to face detractors on all of these grounds.
   Relatively few nominees have been credibly opposed on grounds of
outright inability. Perhaps the nominee to fare worst in this respect was
George H. Williams, an undistinguished lawyer nominated unsuccess­
fully by President Grant in 1873. Most recently, Judge Carswell was
opposed in part because of alleged lack o f ability, although it would be
difficult to determine the relative importance to his defeat of the Sen­
ate’s evaluation of his judicial performance and its reaction to his
record of apparent insensitivity to civil rights.
   Opposition on ethical grounds was a factor in the defeat of both the
nomination of Justice Fortas to be Chief Justice and the nomination of
Judge Haynsworth to succeed Justice Fortas. The filibuster against

   57 S tone's nom ination was controversial chiefly because, having succeeded a H arding appointee,
H arry M. D augherty, as A tto rn ey G eneral, he refused to d ro p a D epartm ent o f Justice case brought
by D augherty, a figure in the T eapot D om e scandal, against S enator W heeler o f M ontana. Frank at
491.
   58 T h e Judiciary C om m ittee decided to enci its p ractice o f conducting its nom ination debates
entirely in executive session after the co n tro v ersy engendered by public revelation o f the past K u Klux
K lan m em bership o f Justice H ugo Black, w hose nom ination it had approved by a vote o f 13-4 in 1937.
A braham at 201; A shby at S3.
   59 See generally GofT; Sw indler.
   60 A shby at 29-31.


                                                   474
Fortas may have succeeded chiefly because of opposition to his judicial
philosophy and opposition to President Johnson as a lameduck Presi­
dent in 1968. However, Fortas was also opposed for accepting paid
employment by American University while on the Court and for main­
taining a close advisory relationship with President Johnson, which
seemed to some an inappropriate breach of separation of powers.61
When Fortas later resigned under charges of ethical insensitivity (he
had received and returned, while on the Court, fees from investor
Louis Wolfson and the Wolfson family’s foundation), President Nixon’s
first designated successor, Judge Haynsworth, faced opposition based
on his participation in lower court cases in which he arguably had or
created a financial conflict of interest.62
   Considerations of personal or judicial ideology were clearly grounds
for Senate opposition to the nominations of Justice Fortas and Judges
Haynsworth and Carswell. Senators opposed Fortas’ liberal stands on
desegregation, criminal procedure, and free speech. Civil rights and
labor groups attacked the allegedly hostile positions of Judge
Haynsworth. Judge Carswell’s opponents emphasized his statement in
support of “the principles of White Supremacy” during his 1948 cam­
paign for the Georgia legislature.63
   Partisan opposition, whether or not “ideological,” may also defeat a
candidate. Of the 14 presidents whose nominees were rejected or other­
wise “killed” by the Senate, six—John Quincy Adams, Tyler, Polk,
Fillmore, Buchanan, and Andrew Johnson—held office in the face of
overwhelming congressional opposition. At the times they lost their
respective nomination fights, it is doubtful that they could have secured
the nomination of almost any individual to the Court.
   Interestingly, the most “venerable” ground historically for Senate
opposition to a nominee is the nominee’s prior identification with the
losing side in a national controversy. The first rejected nomination was
that of John Rutledge for Chief Justice in 1795, based largely on his
attack on the Jay Treaty, which the Federalists vigorously supported.
No one-issue debate has loomed as large in the defeat of any Supreme
Court nominee in this century.
   The role of the Attorney General and the Department of Justice in
the appointment process has generally been to identify and evaluate
candidates according to the President’s criteria. Department of Justice
witnesses, however, have occasionally played a role in confirmation
hearings either to elaborate on the Administration’s evaluation of a

    61 Ashby at 338-41.
    62 A braham at 4-5; A shby, at 387-88.
    93 Ideological opposition to a candidate may, o f course, backfire. T h e overall c areer record on civil
rights and labor issues o f F o u rth C ircuit Judge John J. Parker, w hose Suprem e C ourt nom ination w as
defeated in 1930, w as undoubtedly m ore progressive o r liberal then the Suprem e C ourt voting record
o f President H oover's subsequent successful nominee, O w en J. R oberts, although P arker’s nom ination
w as defeated prim arily th ro u g h the pressure o f labor and civil rights groups. Schubert at 49-50.


                                                   475
nominee’s record or to comment on legal issues raised by a particular
appointment. Not including former Assistant Attorney General
Rehnquist’s testimony at his own confirmation hearing, Department of
Justice Representatives have testified with respect to only two of the
nine persons nominated to the Supreme Court since 1968. Attorney
General Levi testified in support of the 1975 nomination of Judge John
Paul Stevens. Nomination o f John Paul Stevens to be a Justice o f the
Supreme Court: Hearings Before the Senate Comm, on the Judiciary, 94th
Cong., 1st Sess. 3 (1975). During the hearings on Justice Fortas’ nomi­
nation to the Chief Justiceship, Attorney General Clark testified regard­
ing whether Chief Justice W arren’s conditional resignation legally cre­
ated a vacancy on the Court, Nominations o f Abe Fortas and Homer
Thornberry: Hearings Before the Senate Comm, on the Judiciary, 90th
Cong., 2d Sess. 8 (1968), and Deputy Attorney General Warren Chris­
topher testified regarding a memorandum he had prepared at the re­
quest of committee member Senator Hart concerning the meaning and
impact of the Supreme Court opinions of Justice Fortas. Id., at 315.64
       V. Conclusion: The Appointment Process and Post-Appointment
                               Performance

   Unsurprisingly, the measures of success on the Court vary as widely
as the criteria for selection.65 In considering what process of candidate
selection is most likely to yield a successful Justice, it must first be
borne in mind that, like other virtues, judicial excellence is significantly
in the eye of the beholder, varying with time and place.
   If a President’s measure of success is the predictability of his ap­
pointee’s decisions, no selection process can guarantee a happy result.
Even a President’s intimate familiarity with the opinions of a nominee
cannot assure that their views will coincide as the appointed Justice
grows in his position and faces novel questions unforeseen at the time
of his appointment. There are notable examples of presidential dissatis­
faction with the performance of an appointee, e.g., Madison, with the
Federalist Story; Teddy Roosevelt, with Holmes’ vote in the Northern

   6* A D epartm ent o f Justice A tto rn ey , N orm an K nopf, testified under subpoena in a private capacity
during the hearings on Ju d g e C arsw ell concerning his experiences w ith Judge C arsw ell w hile a
mem ber o f the Law Students Civil R ights R esearch Council, prior to his em ploym ent w ith the
D epartm ent o f Justice. George Harrold Carswell: Hearings Before the Senate Comm, on the Judiciary,
91st C ong., 2d Sess. 174 (1970).
   65 T w o com m entators have w ritten that success on the C ourt is:
        the result o f several qualities in com bination: scholarship; legal learning and analytical
        pow ers; craftsm anship and technique; w ide general know ledge and learning; character,
        moral integrity and impartiality; diligence and industry; the ability to express oneself
        w ith clarity, logic and com pelling force; openness to change; courage to take unpopu­
        lar positions; dedication to the C o u rt as an institution and to the office o f Supreme
        C ourt Justice; ability to carry a pro p o rtio n ate share o f the C ourt's responsibility in
        opinion w riting; and finally, th e quality o f statesm anship.
Dennis, Overcoming Occupational Heredity at the Suprem e Court. 66 A.B.A. J. 41, 43 (1980) (quoting A.
Blaustein and R. M ersky, The First O ne H undred Justices: Statistical Studies o f the Suprem e Court o f the
United States (\91%)).


                                                    476
Securities case; Wilson, with the conservative McReynolds; and Eisen­
hower, with W arren.66
   It is likely that those Presidents who measured success more by the
craftsmanship of their appointees were better pleased than those count­
ing on predictable votes. The average Justice has been one who has
reliably made substantial contributions to acceptable adjudications of
difficult issues over a significant period of time. Not every Justice, of
course, possesses the creativity, intellect, political acumen, and perhaps
longevity, to achieve not only excellence, but “greatness.” However,
those candidates with the potential to be truly exceptional and extraor­
dinary rarely stand out clearly from the pool of excellent candidates,
and a process seeking to identify the “potentially great” might prove
more whimsical than practical. While the eminence of John Marshall or
Brandeis was perhaps predictable, no prognosticator could confidently
have predicted the careers of Harlan Fiske Stone, Hugo Black, or Earl
Warren. Whether a process aimed at finding “great” future jurists
would have focused on them originally cannot be known.
   History gives much reason for optimism that, whatever the Presi­
dent’s criteria, a potentially successful member of the Court meeting
those criteria can be found with proper care. A clear set of standards,
input from numerous sources, a broad-based search for candidates, and
time enough for a thorough evaluation are the elements necessary and
sufficient to find the appropriate nominee.

                               APPENDIX

           DATA ON SUPREM E COURT APPOINTM ENTS

              1. Succession of the Justices of the Supreme Court
                 of the United States
              2. Supreme Court Nominations Rejected or Refused
              3. Prior Judicial Experience of U.S. Supreme Court
                 Justices and Their Subsequent Service
              4. Occupations of Supreme Court Designees at Time
                 of Appointment
              5. Acknowledged Religion of the 100 Individual
                 Justices of the Supreme Court (at time of appoint­
                 ment)
              6. The 31 States From Which the 103 Supreme
                 Court Appointments Were Made
              7. Occupational Backgrounds of Supreme Court
                 Nominees Since 1937

 66 A braham at 62-63.



                                   477
                                                                       Table 1

                  T A B L E O F SUCCESSION O F TH E JU STICES O F TH E SUPREME C O U R T O F TH E U N ITE D S TA TES
                                             Showing Yean « f A d n t Srrvict on the Court

                                Judiciary A il of I W     provided Im a Chief imtrar and 5 AtmciaU Ju ttim
                            John Ruttedpr          William Cuihina           Jam n Irrdell        Jamet Vihon             John blaa
John Jay P R O -1795         17*9-17*1               1719-IRIO                1790- 17<M           17R9.1 **a             |7 * 9|7 %
                            Thofflu JofcfKon
                              I79|.|7<*J
Jithn R u I M p    179$
                            William Patmon                                                                              Samuel Oiaw
 Olr**r ElliworlH              |79t.|ROh                                                       Buthrad Wathtnfton
     |79t».»799                                                                                                          |79*-|RII
                                                                             Alfred Moorr          I79R.1RJ9
   John M in liill
     1K0|.»R»5            Hrnry B. 1 mngMnn                                 William Johnwn
                                                                              IftfM IR U
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                                                                                 Z. 5
                                                                                 3   S
                                                                                 s   *                                  Samuel F Millet
  Salmon P Chav                                                                  i   s
                                                                                                                          |Bfi ’ Ht'Ht
     iH M in                                                                     a   ?
                                                                                 \\
                                                                                  8 «             Wilham Stroma

 M m non R V m «
                             Ward Hunt
                             i r ?m r m :
                                                                                 ;   s             1*70 IRRU

    IR74-IRRR                                                                    3 ;
                                                                                 I» se          William B Wood*
                                                        Horave C n y                               iNRtyiRR?'
                          Samuel Blatchford
                            IH R JIR UI                 1RRM90.'          M i
 MelmllrW Fuller                                                                                L w i i m O C Lamar
   IRRR-1910                                                                     •- s                IRRN IR41
                                                                                 " c                                    Hrnry B Brown
                                                                                                                          IR90l90n
                                                                                                Howell E J k I w i
                           Edward 0 White                                                           IR9.1 |R«H
                              J IR94                                             <              Rufus W Peikham
                            <1 1 9 | 0 -l»:i                                                        |R<*S 191)9

                                                Oti»tr Wendrll H o in n
                                                       i « * o :i9 i :                                                 William H Moody
                                                                                                                           |9Qf> 1910
                                                                                                M o n o H Lurtm
 Edward D Vhiic           Wtdti V n Dt*afilrr                                                      |909.|g<4           lo v p h R Lamar
      JIR94                   1910-19.17                                                                                   |9|(v I9ir*
  ( J 1910-19:1
                                                                                              Ja m n C McRrynnMt       Loun D Brandrn
                                                                                                    I9 I4 I9 4 I         lvtn-1919
 William H Taft
    I9.M-I9.M)                                  Benjamin N Cardoro
                                                      I 9 IM 9 J H
                                                  F rln Frankfurt"
                                                      I 9 i9 i« r ,j
     1910-1941

                            Hugo L BIk I
                              |917. |'IT (                                                                            William O Doufta*
                                                                                                                             1919
      J I9JS *                                                                                  Jamn F Byfnei
  ( J 1941 |94A                                                                                    1941.1942
                                                                                                Wiley R u tlrd^
  F n d M V im m                                                                                   |V4.M*49
     I94A -I9JJ                                                                                 Sherman Hinton
                                                                                                 " |<*4U.|«<*

    Karl V a r m                                                                                W illim J Brennan
    |9<M <*9                                                                                           I9*h

                                                 Arthur J ( « l d M f
                                                     !% M % <
                                                    Ahr Fortas
 Warrrn E Burfrr                                    I9 M -I9 A 9
      |9fi9
                          1r a n E Powell. Jt
                                                           |U70
                                 l« 7 :




'S ucceeded by Justice Jo h n Paul Stevens. December 19, 1975.
From A braham at 292-93.
                                                                                                               Fe b n w y. 1973

     TABLE O F SUCCESSION O F THF JUSTICES O F THE S UP tE M E COURT O F TH E UNITED S TA TE S



                                                                                                                                  1789
                                                                                                                                  IT9 0




    j c l >11                                                                                                                     1800
      i ii'-J                                                                    1
      u!                                   | '                                   t
   T t w m a To d d
     1807-1826
                                                                                 g   .          i             i i i               tlto
                                           =11                                                                i l l
                                           “ o E
                                                                                                1
                                                                                 | 21
                                                                                                              21|                 1820
   Robert Tum ble                          x
                                            oJ                                  « !o            X             5ii
    John M k U t i)                        <w                                   Si
                                                                                                8
                                                                                                e
                                                                                                                 0
                                                                                ar                                                1 8 )0
                                                                                                6
                                                                                 o
                        John Catron                John M c K u ilty
                                                                                                «-
                         IR t T -l f t M             1 8 V 1852
                                                                                <               o !
                                                                                                5*                                1840

                                                                                                5S
                                                                                                'S*
                                                                                                                                  1 8 )0
                                                   John A Campbell                              i i
                                                      IN V tlA M

                           “1                                                                   &
                                                                                                                                  18*0
  Noah H S va y n r                                  O a n d Dana          Stephen J Field
    1*62 1*81                                         I8 6 M 8 7 7
                                                                              1863-1897
                           h |
                                                                                                !
                           i l l                                                                      - Joaepto P. Bradley —      1870
                                                                                                I-         1870-1892
                          ni *
                                                   John M Hartan
                          ?«5                        l«-r? .| Q i i                             5
                                                                                                                                  1880
  Stanley Matthew*
     1M I I 889
                          - ^                                                                   O
                          *e                                                                    <
  D and J B i t x i
     1889-19)0
                                                                                                                                  1890
                                                                                                       C r a r p S h in e . Jr
                                                                                                             1892 1903
                                                                          ioaeph McKenna
                                                                             1898-192)
                                                                                                                                  1900
                                                                                                        W ilK «n R. O n
                                                                                                           >903-1922


  Chartei E Hughes
                                                                                                                                  1910
     1910-1916
                                                    Mahkm Pitney
                                                     19121922
   Jofin H Clarkr
     19(^-1 9 2 2
                                                                                                                                  1920
 GfOfft Swlhrrland -                                                                                      Pierce Bvftet
                                                 F d v i f d T Sanford    H ir lt * F . Slone              1922-1939
     1922-19,18
                                                      I9 2 .V I9 J0
                                                                                J 192)
                                                                          C J 1941-1946

                                                                                                                                  1930
                                                      I9 .W 1 9 4 5

  Stanley F Heed
    I9 JR I9 S 7                                                                                         Frank M urphy
                                                                                                                                  1940
                                                                         Robert H . Ja ct ton
                                                                            1 9 41-19)4
                                                 H ir n M H . Burton
                                                      I9 4 J -I9 M I
                                                                                                          Tom C. C M
                                                                                                           1949-1967
                                                                                                                                  1950

                                                                          John M Htrtan
C h a rtn E Whittaker
                                                                            1955-1971
       19)7-1062                                   Poller Stewart
                                                        1959
                                                                                                                                  l«6 0
  Byron   ItWhile
       |9f>2
                                                                                                       Th vrfo o d Manhall
                                                                                                              1967

                                                                                                                                  1970
                                                                         W m H . R rhn qim t
                                                                               197’



                                                                                                                                  1980




                                           478
           T a b l e 2.— S u p r e m e C o u r t N o m i n a t i o n s R e j e c t e d o r R e f u s e d

(In the following tabulation, details on the nominations to the Suprem e C ourt o f the United States
   w hich w ere declined by the nominees or acted on adversely by the Senate have been summarized.
   T he political com position o f the Senate at ihc time o f such action is show n by m ajor parlies only:
   F .— Federalist; A .-F.—A nti-Federalist; D.R. — D em ocratic Republican: N.R. — National Republican;
   W .—W hig; D .— D em ocratic; R. —Republican.]

      President and                                                             A ction on
                                     Senate                  D ate o f
     Supreme Court                                                                                   N ature o f action
                                   com position            nomination           nomination
        nominee

G eorge W ashington
   Robert H. Harrison           F. 17; A .-F. 9...      Sept. 24. 1789.... Sept. 26, 1789....     C onfirm ed; declined.
   William P aterson1           F. 17; A .-F. 13.       Feb. 27. 1793..... Feb. 23, 1793.....     W ithdraw n.
  John Rutledge,                F. 1^; A .-F. 13.       July I. 1795       ! D ec. 15. 1795       Rejected. 10-14.
     C J .2                                               Nov. 5. 1795
  William Cushing,              F. 19; A.-F. 13.        Jan. 26. 1796...... Jan. 27, 1796..       Confirm ed; declined.
     C.J.
John Adams
  John Jay, C .J...........     F. 19; D .R. 13.         Dec. 18. 1800...     Dec. 19. 1800.... C onfirm ed; declined.
James Madison
  Levi L in co ln ...........   D .R. 28; F 6...        Jan. 2, 1811...       Jan. 13, 1811..     C onfirm ed; declined.
  A lexander W olcott.          D .R . 28; F. 6...      Feb. 4, 1811...       Feb. 13, 1811.      R ejected. 9-24.
  John Q. A d am s.......       D .R . 28; F. 6...      Feb. 21. 1811.        Feb. 22, 1811.      Confirm ed; declined.
John Q. Adams
  John J. C ritte n d e n ..    D .R. 28; N.R. 20..! D ec. 17, 1828...        Feb. 12, 1829..     “ Postponed. “
A ndrew Jack'son
  R oger B. T an ey n ....      D. 20; W. 20 .          Jan. 15. 1835..       Mar. 3, 1835.       “ Postponed.” 24-21.
  W illiam S m ith .........    D. 30; W. 18 .          Mar. 3, 1837..        Mar. 8, 1837.       C onfirm ed; declined.
John Tyler
  John C. Spencer               W. 28; D. 25 .          Jan. 9, 1844......    Jan.   31, 1844..   Rejected, 21-26.
  Reuben H.                     W. 28; D. 25 .          Mar. 13, 1844..       Jan.   15. 1845..   "P ostponed.“
     W alw orth                                                               Jan.   27, 1845..   W ithdraw n.
  Edw ard K in g ..........     W. 28; D. 25 .          June 5. 1844..        Jan.   15, 1845..   “ Postponed.**
                                                        Dec. 4. 1844.         Feb.   7, 1845...   W ithdraw n.
  John M. R e a d .........     W. 28; D. 25 .          Feb. 7, 1845..                            N u action.
James K. Polk
  G eorge W.                    D. 31; W. 2 5 ......... Dec. 23. 1845 .       Jan. 22, 1846..     Rejected, 20-29.
     W oodw ard
M illard Fillm ore
  Edw ard A.                    D. 35; W. 2 4 ......... Aug. 16. 1852.                            No action.
     Bradford
  G eorge E. B a d g e r..      D. 35; W. 2 4 ......... | Jan. 10. 1853....   Feb. 1 1. 1853.     “ Postponed."
  William C. M icou...          D. 35; W. 2 4 .........1 Feb. 24. 1853..                          N o action.
James Buchanan
  Jerem iah S. B lack...        D. 36; R. 26.           Feb. 5, 1861....      Feb. 21. 1861.      R ejected, 25-26.
A ndrew Johnson
  H enry S ta n b e ry ......   R. 36; D. 26 .          A pr. 16, 1866..                          N o action.
Ulysses S. G rant
  Ebenezer R. H oar...          R. 56; D. 11 .          Dec. 15. 1869...    Feb. 3. 1870....... Rejected, 46-11.
  Edw in M. S ta n to n ..      R. 56; D. II .          Dec. 20. 1869...    D ec. 20, 1869... C onfirm ed (d. D ec.
                                                                                                  24, 1869).
   G eorge H.                   R. 49; D. 19.           Dec. I. 1873 ...... Jan. 8. 1874....    W ithdraw n.
      Williams, C.J.
   C aleb Cushing, C.J.         R. 49; D. 19.           Jan. 10. 1874...... Jan. 13, 1874..       W ithdraw n.
R utherford B. Hayes
   Stanley M atthew s4 .        D. 42; R. 33.           Jan. 26, 1881......                       N o action.
C hester A. A rth u r
   Roscoe C o n k lin g ....    R. 37; D. 37 .          Feb. 24, 1882.... Mar. 2, 1882...         C onfirm ed; declined.
G ro v e r Cleveland
   William B.                   D. 44; R. 38 .          Sept. 17. 1893.... Jan. 15, 1894...       Rejected, 24-30.
      H om blow er
   W heeler H.                  D . 44; R. 38 .         Jan. 22, 1893...... Feb. 16, 1894..       R ejected, 32-41.
      Peckham
H erbert H oover
  John J. P ark er.........     R. 56: D. 3 9 .......... Mar. 21, 1930.... M ay 5, 1930....... R ejected. 39-41

                                                             479
 T a b l e 2.— S u p r e m e C o u r t N o m i n a t i o n s R e j e c t e d o r R e f u s e d —                             Continued
[In the follow ing tabulation, details on the nom inations to the Suprem e C ourt of the U nited States
   w hich w ere declined by the nominees o r acted on adversely by the Senate have been summarized.
   T he political com position o f the Senate at the time o f such action is show n by m ajor parties only:
   F .— Federalist: A .-F .— A nti-Federalist: D .R .— D em ocratic Republican; N .R .—National Republican:
   W .— W hig; D .— D em ocratic; R .— Republican.]

       President and
                                               Senate                    D ate o f           A ction on
      Suprem e C ourt                                                                                                  N ature o f action
                                             com position               nom ination          nom ination
         nominee

Lyndon B. Johnson
   A be Fortas. C .J.........           D. 64; R. 36                  June 27. 1968       O ct. 7. 1968        W ithdraw n,
   H om er                              D. 64; R. 36                  June 27, 1968       O ct. 7. 1968        W ithdraw n.
      T h o rn b erry r>
R ichard M. Nixon
   C lem ent F.                         D. 58; R. 42                  Sept. 4, 1969...... Nov. 21, 1969... Rejected, 45-55.
      H aynsw orth, Jr.
   G . H arrold                         D. 58; R. 42                  Jan. 19. 1970       A pril 7, 1970       R ejected, 45-51.
      Carsw ell

   1 Paterson's name w as inadvertently subm itted before his term as Senator had expired, he having
been a mem ber o f the Senate w hich created the C ourt positions under the Judiciary A ct o f 1789, I
Stat. 73.
   2 Rutledge w as com m issioned, sw orn in and presided o v er the August, 1795. Term o f the C ourt.
   3 T he Senate rejected the nom ination as an attem pt to co n trol the C ourt through T aney's Cabinet
affiliation. In the 1836 election, w ith six additional states voting, the D em ocrats won control o f the
Senate. Taney was renom inated, this time for C h ief Justice, and w as confirm ed. 29-15.
   4 T h e nom ination, caught betw een D em ocratic co n tro l o f the Senate and Senator C onkling’s fight
w ith Hayes, was pigeonholed. In the new Senate. D em ocrats and R epublicans w ere evenly divided.
G arfield prom ptly resubm itted M atthew s' name, and he was confirm ed. 24-23.
   5 T he Senate never reached this nom ination, as it was tied to the effort to advance Fortas to C hief
Justice.
   From Sw indler at 536.


       T a b l e 3.— P r i o r J u d i c i a l E x p e r i e n c e o f U .S . S u p r e m e C o u r t
                     J u s t ic e s a n d T h e ir S u b s e q u e n t S e r v ic e

                                                                       N u m b e r o f Y ears o f P rio r Ju d icial           Y ears o f
                                                                                       E x p erien ce                         S e rv ice on
         Ju stice                  Y ear N o m in ated                                                                         S u p re m e
                                                                      F e d e ra l        S tate            T o ta l              C o u rt


J a y ‘ ......................... 1789 .........................           0                 2                 2                    6
J. R u tled g e* * ....... '1789 an d 1795.....                            0                 6                 6                   “2
C u s h in g ................. 1 7 8 9 .........................           0                29                29                   21
                                  1789         ....................        0                0                 0                     9
                                  1 7 8 9 ................... .*...        0                11                11                    7
                                  1 7 9 0 .........................        0                Vz                Vz                    9
                                  1 7 9 1 .........................        0               l>/2              1 >/2                  2
                                  1793 .........................           0                0                 0                    13
                                  1 7 9 6 .........................        0                8                 8                    15
                                  1 7 9 6 .........................        0                5                 5                    4
W a s h in g to n .......... 1 7 9 8 .........................             0                0                 0                    31
                                  1 7 9 9 .........................        0                 1                 1                    5
                                  1 8 0 1 .........................        0                0                 0                   34 Vi
                                  1 8 0 4 .........................        0                6                 6                    30
L iv in g s to n ............ 1 8 0 6 .........................            0                0                 0                    17
T o d d ....................... 1 8 0 7 .........................          0                6                 6                    20
S to r y ....................... 1 8 1 1 .........................         0                0                 0                    34
                                  1 8 1 1 .........................        0                6                 6                    24
T h o m p s o n ............ 1823 .........................                0                16                16                   20
T rim b le .................. 1 8 2 6 .........................            9                2                 11                    2

                                                                          480
       T able 3.—P rior J udicial E x per ien ce of U.S. S uprem e C ourt
            J ustices an d T heir S ubsequent S erv ice —Continued

                                                                     N u m b er o f Y ears o f P rio r Judicial    Y ears o f
                                                                                    E x p erien ce                S e rv ic e on
         Ju stice                 Y ear N o m inated
                                                                                                                   S u p rem e
                                                                     F ed eral         S tate          T o ta l      C o u rt


                                1 8 2 9 .........................       0                 6               6           32
                                 1 8 3 0.........................       0                 0               0           14
                                 1835 .........................         0                 5                5          32
                                 1 8 3 6 .........................      0                 0               0           28
                                 1836 .........................         6                 2               8            5
                                1837 .........................          0                10               10          28
                                 1837 .........................         0                 0               0           15
                                 1 8 4 1 .........................      4                 0               0           19
                                 1845 .........................         0                22              22           27
                                 1845 .........................         0                 6               6            6
                                 18 4 6.........................        0                13               13          24
                                1 8 5 1.........................        0                 0               0            6
                                1853 .........................          0                 0               0            8
C liffo rd .................. 1858 .........................            0                 0               0           23
                                 1862 .........................         0                 0               0           19
                                1 8 6 2.........................        0                 0               0           28
                                1 8 6 2.........................        0                14               14          15
F i e l d ..................... 1 8 6 3.........................        0                 6               6          34'/2
                                1 8 6 4 .........................       0                 0               0            9
                                 1 8 7 0 .........................      0                11               11          10
                                1 8 7 0.........................        0                 0               0           22
                                1872 .........................          0                 8               8           10
                                1 8 7 4.........................        0                 0               0           14
                                1877 .........................          0                 1                1          34
                                1 8 8 0.........................        12               0               12            7
                                 1 8 8 1.........................       0                 4               4            8
                                 1 8 8 1.........................       0                18               18          21
                                1882 .........................          15               0                15          II
L. Q. C. L am ar... 1888 .........................                      0                0                0            5
                                1 8 8 8..........................       0                0                0           22
                                1 8 8 9.........................        6                22              28           21
                                 18 9 0.........................        16               0                16          16
                                1892 .........................          0                0                0           11
                                1 8 9 3.........................        7                0                7           '2
W hite*................... ‘ 1894 and 1910.....                         0               l'/2             P/2          27
                                1 8 9 5.........................        0                9                9           14
                                1898 .........................          5                0                5           27
                                 19 0 2.........................        0                20              20        1 30
                                1 9 0 3.........................        4                 3               7           19
                                1 9 0 6.........................        0                0                0            4
                                1 9 0 9........ ................        16               10              26            5
                                '1 9 1 0 an d 1930.....                 0 -              0                0           17
                                1 9 1 0.........................        7                 1               8           27
                                1 9 1 0.........................        0                 2               2            6
                                1 9 1 2.........................        0                11              11           10
                                1 9 1 4.........................        0                0                0           27
                                1 9 1 6 .........................       0                0                0           23
                                1 9 1 6 .........................       2                0                2            6
T a ft’........................ 1 9 2 1 .........................       8                 5              13            9
                                1 9 2 2.........................        0                0                0           16
B u tle r..................... 1 9 2 2.........................         0                0                0           17

                                                                        481
      T able 3.— P rior J ud icial E x per ien ce of U.S. S uprem e C ou rt
           J ustices a n d T heir S ubsequent S erv ice —Continued

                                                                   N u m b e r o f Y ears o f P rio r Judicial    Y ears o f
                                                                                   E x p e rie n c e             S e rv ic e on
        Ju stic e                Y ear N o m in ated                                                              S uprem e
                                                                   F ed eral         S tate           T o ta l       C o u rt


                                1923 .........................        14               0                14             7
                               '1923 and 1941.....                     0               0                0             23
                               1 9 3 0.........................        0               0                0             15
                               1932 .........................          0               18               18             6
                               1937 ........................           0              l ‘/2            l ‘/2          34
                               1937 .........................          0               0                0             19
                               1 9 3 9.........................        0               0                0             23
                               1939 .........................          0               0                0             36
                               1940 ......................             0                7                7            9
                               1 9 4 1 .........................       0               0                0              1
                               1941 ..........................        0                0                0             13
                               1943 .........................         4                0                4             6
                               1 9 4 5 .........................      0                0                0             13
                               1946 .........................          5               0                 5             7
                               1949 ........................           0               0                0             18
                               1 9 4 9 .........................       8               0                 8             7
                               1953 .........................         0                0                0             16
                               1955 .........................          1               0                 1            16
                               1956                                   0                 7                7
                               1957 .........................          3               0                 3             5
                               1958                                   4                0                4
W h ite ...................... 1 9 6 2 .........................      0                0                0
                               1 9 6 2 .........................      0                0                0              3
                               1 9 6 5 .........................      0                0                0              4
                               1 9 6 7 .........................     3 '/2             0               3'/2
                               1 9 6 9 .........................      13               0                13
                               1 9 7 0 .........................      11               0                11
                               1971 .......................           0                0                0
                               1 9 7 1 .........................      0                0                0
                               1975 .......................            5               0                 5

    ‘ In d ic a te s C h ie f Ju s tic e and d a te o f his a p p o in tm e n t o r p ro m o tio n .
    * R u tle d g e 's n o m in atio n w as re je c te d by th e S en ate in D e c e m b e r 1795, b ut h e had
se rv e d as C h ie f Ju s tic e u n d e r a recess a p p o in tm e n t fo r fo u r m onths.
    “ A c tu a lly R u tle d g e n e v e r se rv e d as A sso ciate Ju stic e , a lth o u g h he d id p e rfo rm c irc u it
d u ty b efo re his resig n atio n in 1791.
    n In d icates n o ju d ic ia l ex p e rie n c e w h e n a p p o in ted as Associate Ju stice.
   From A b ra h a m at 45-47.




                                                                      482
  T a b l e 4 .— O c c u p a t i o n s * o f S u p r e m e C o u r t D e s i g n e e s a t T i m e o f
                                          A pp o in t m e n t +

F ed eral O ffice h o ld e r in E x ecu tiv e B r a n c h ......................................................................                                              22
Ju d g e o f In ferio r F ed eral C o u r t ...........................................................................................                                       21
Ju d g e o f S tate C o u r t.................................................................................................................                                21
P riv a te P ra c tic e o f L a w .............................................................................................:............                                  18
U.S. S e n a to r..................................................................................................................................                            8
U.S. R e p re se n ta tiv e ............................................................... ....................................................                               4
S tate G o v e r n o r ............................................................................................................................                            3
P ro fesso r o f L a w ........................................................................................................................                                3
A ssociate Ju stice o f U.S. S u p re m e C o u rt " .....................................................................                                                     2
Ju stice o f the P erm an en t C o u rt o f In tern atio n al J u s tic e ............................................                                                          1

   ' M any o f the ap p o in tees had held a v ariety o f federal o r sta te offices, o r ev en b o th ,
p rio r to th eir selection.
   * In g en eral the ap p o in tm en ts from sta te office are c lu ste re d at th e beg in n in g o f the
C o u rt’s existence; th o se from federal office are m o re recen t.
   “ Ju stices W hite and Stone, w h o w e re promoted to the C h ie f Ju sticesh ip in 1910 and
1930, resp ectiv ely .
       D o es not in clu d e Ju stic e Jo h n Paul Stevens, a p p o in te d 1975, fo rm erly a ju d g e o f the
U.S. C o u rt o f A p p eals for th e S ev en th C ircu it.
   From A b rah am at 53.


          T a b l e 5.— A c k n o w l e d g e d R e l i g i o n o f t h e 100 I n d i v i d u a l
          J u s t i c e s o f t h e S u p r e m e C o u r t ( a t t i m e o f a p p o i n t m e n t )*

E p is c o p a lia n .............................................................................................................................................             26
U nspecified P ro te sta n t..........................................................................................................................                         24
P re sb y te ria n ..............................................................................................................................................              17
R om an C a th o lic ......................................................................................................................................                      6
U n ita ria n ....................................................................................................................................................               6
B a p tis t........................................................................................................................................................              5
J e w is h .........................................................................................................................................................             5
M e th o d ist...................................................................................................................................................                4
C o n g re g a tio n a list...................................................................................................................................                   3
D isciples o f C h r i s t .................................................................................................................................                     2
L u th e ra n ....................................................................................................................................................                1
Q u a k e r........................................................................................................................................................ ............ 1

                                                                                                                                                                           100

    •D o e s not in clu d e Ju stice Jo h n P aul S tevens, ap p o in ted 1975.
    From A b rah am at 57.




                                                                                   483
      T a b l e 6 .— T h e 31 S t a t e s f r o m W h i c h t h e 103 S u p r e m e C o u r t
                              A pp o in t m e n t s W e r e M a d e

N e w Y o r k ................................................        15         M in n e so ta .................................................         2
O h io ............................................................    9         N o rth C a ro lin a ......................................              2
M a s s a c h u s e tts .........................................      8         Io w a ................................................................2
V ir g in ia ..................:.................................      7         M ic h ig a n .................................................. ....2
T e n n e s s e e .................................................    6         N e w H a m p sh ire ..................................... ....1
P e n n sy lv a n ia ...........................................       6         M a in e ......................................................... ....1
K e n tu c k y ..........                                                        M ississip p i....................................................1
M a ry la n d ..........                                                         K a n s a s ....................................................... ....1
N e w J e r s e y ......                                                         W y o m in g .................................................. ....1
S o u th C a ro lin a                                                            U ta h ................................................................1
C o n n e c tic u t......                                                        T e x a s ......................................................... ....1
G e o r g i a .............                                                      In d ia n a ...........................................................I
A la b a m a ............                                                        M isso u ri.........................................................1
C a lif o r n ia .........                                                       C o l o r a d o .................................................. ....1
Illin o is.................                                                      A riz o n a ..........................................................1
L o u is ia n a ..........

   • J o h n Paul S tev ens, w h o receiv ed the 104th successful p resid en tial ap p o in tm en t to the
C o u rt, w as from Illinois, th u s raising th at S ta te ’s total to four.
   From A b rah am at 56.




                                                                           484
          T   able          7.— O c c u p a t i o n a l                 Backgrounds                       of    S   u prem e     C   o urt

                                                         N   o m in e e s         S   in c e    1937

                                              L ast o ccu p a tio n befo re
            N o m in ee                                                                                      M a jo r o ccu p a tio n
                                                    ap p o in tm en t



D o u g la s ..........................     S ecurities and E x ch an g e                   L aw and teaching.
                                               C om m ission

R e e d .................................   S o licito r G e n e ra l.................      E x e c u tiv e b ra n c h and p riv a te p ractice.
J a c k s o n ...........................   A tto rn e y G e n e r a l................      E x e c u tiv e b ra n c h and p riv a te p ractice.
S to n e ................................   S u p rem e C o u rt J u s t ic e .....         E x e c u tiv e b ra n c h and p riv a te p ractice.
B y rn es..............................     U .S. S e n a to r .........................    Politics.
M u rp h y ...........................      A tto rn e y G e n e ra l................       Politics.
R u tle d g e .........................     A p p e lla te c o u r t ...................    L aw sc h o o l d ean an d in stru cto r.
B u rto n ..............................    U.S. S e n a to r .........................     P o litic s an d p riv a te practice.
V in s o n ............................     S e c re ta ry o f T re a s u r y .......       Politics.
M in to n ............................      A p p ellate c o u r t ...................      P olitics.
C la r k ................................   A tto rn e y G e n e ra )................       E x e c u tiv e b ra n c h an d p riv a te p ractice.

H a rla n ..............................   A p p ellate c o u r t ...................       P riv a te   practice.
B re n n a n ..........................    S tate c o u r t .............................   P riv a te   p ra c tic e an d S tate ju d g e .
S te w a r t...........................    A p p e lla te c o u r t ...................     P riv a te   practice.
W h itta k e r .......................     A p p e lla te c o u r t ...................     P riv a te   practice.
W h ite ...............................    A ssistant A tto rn e y                          P riv a te   practice.
                                              G en eral
G o ld b e r g ........................ S e c re ta ry o f L a b o r ............           P riv a te practice.
F o r t a s .............................. P riv a te p ra c tic e ...................      P riv a te p ra c tic e w ith som e ex p erien ce
                                                                                               in ex ecu tiv e b ran ch .
M a rsh all..........................    S o licito r G e n e r a l.................        N A A C P a tto rn e y and F e d eral bench.
T h o rn b e rry ....................    A p p e lla te c o u r t ...................       Politics.
B u rg e r.............................. A p p ellate c o u r t ...................         P riv a te p ractice.
H a y n s w o rth ..................     A p p ellate c o u r t ...................         P riv a te practice.
C a rs w e ll.........................   A p p ellate c o u r t ...................         P riv a te practice.
B la c k m u n ......................    A p p e lla te c o u r t ...................       P riv a te practice.
P o w e l l ............................ P riv a te p r a c tic e ...................       P riv a te practice.
R e h n q u is t.......................  A ssistant A tto rn e y                            P riv a te practice.
                                            G en eral
S te v e n s ........................... A p p e lla te c o u r t ................... P riv a te practice.

   Adapted from A sh b y at 453.




                                                                            485
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