Picking Judges

Nancy Maveety

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351499651
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Politics
• Index: Politics & International Relations

What defines a president? Is it policymaking? A good relationship with the American people? Or is it legacy? Most would argue that legacy imprints a president in the American consciousness. A president's federal judicial appointees may be his or her most lasting political legacy. Because federal judges serve for life, their legal policymaking endures long after a president's term in office is over. Presidents who care about serving their mandate, who desire to maximize their policy agenda, and who wish to influence the nation's constitutional fabric appoint as many federal judges as possible.This new volume in the Presidential Briefings series shows how the president's appointment power has expanded beyond its bare constitutional outlines. In exercising their constitutional powers while paying heed to political opportunities, presidents and the Senate have together created our modern judicial appointment politics. Presidents consider a host of demographic and ideological factors, candidate qualities, and electoral politics.Nancy Maveety examines the dynamics of screening and choosing judicial nominees and analyses the institutional calculus in securing their confirmation in the face of senatorial obstruction. Maveety shows how a president can adapt to particular circumstances and provides an outline for synergistically staffing the federal judiciary, thus securing a legacy for all time.

One
History

If history is any guide, it should be for the president, in selecting nominees to staff the federal judiciary. What a history of the constitutional origins and presidential utilization of the Article II appointment power teaches is that the formal, constitutional process is the baseline constraint from which presidents can operate to create opportunities, or foreclose them.

This chapter describes the historical evolution and development of the president’s Article II appointment power with respect to the federal judiciary, outlining the institutional dynamics of presidential nomination and senatorial advice and consent in confirmation. The constitutional framework is presented as the formal baseline from which and within which presidential discretion and leadership can operate. Mileposts, both historical and systemic, in the development of the formal dimensions of the judicial appointment power are briefly illuminated. That development, as we shall see, is a matter of not only the expansive utilization, but also the disadvantageous misuse, of options—those presented and those made.

The following transformational moments and events structure the discussion of mileposts in the exercise of judicial appointment power: (1) cardinal criteria of the early period, from the presidency of George Washington through that of Andrew Jackson: party loyalty and geography of appointees; (2) the Senate gets political: Andrew Johnson and the shrinking of the court; (3) the contentious confirmation of Louis Brandeis: organized political opposition meets presidential conceptions of merit in appointees; (4) Franklin Delano Roosevelt, the court-packing plan, and executive dominance of the court; (5) Richard Nixon’s appeal to the electorate: his campaign for “strict constructionists”; (6) ideology, interest group activism, and courting the media: the watershed that is the Robert Bork nomination; and (7) institutional conflict and the modern “nuclear option”: partisan polarization and its impact on the judicial appointment process.

The Constitutional Framework of Article II

The relationship between the presidency and the federal judiciary is not among the most copiously delineated in the constitutional system of separation of powers and checks and balances. While it was assumed that there be a federal judiciary and that it be one of separate and independent powers, and while there was some debate at the Constitutional Convention in Philadelphia as to who should appoint the federal judges, the chief concern of the state delegates was not to replicate the overweening authority the British crown had had over its appointed judicial officers in the American colonies. Executive dominance of judicial appointment was thus distrusted, but so was exclusive legislative control of judicial selection. The scheme of presidential nomination with the advice and consent of the Senate was adopted in the closing days of discussion and represented a compromise between the nationally centralizing impetus of the Federalist delegates and the regional influence and state-level participation championed by their opponents.

What the appointive system was most directly engineered to guarantee was judicial independence. The exact qualities or criteria in candidates for appointment were left unspecified; judges’ independence was thus institutionally derived rather than personally assured. To this end, the shared appointive powers of the executive and the legislature were phrased as such in section 2 of Article II, describing the powers of the president:

“. . . he [the president] shall nominate, and by and with the advice and consent of the Senate, shall appoint . . . judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law”

The particular formulation in section 2, explicitly mentioning only the judges of the Supreme Court as part of this shared appointment process, is the result of the vague accounting of the national judicial branch in Article III, whose section 1 sets out only:

“The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.”

The section continues that “the judges shall hold their offices during good behavior.” This protection of tenure in office, presumably for life, combined with the joint appointive actions by the president and the Senate, ensured that judges were not beholden to either for their continuation in office and could perform their duties without fear of arbitrary or retaliatory removal—with political independence, in other words.

Still, a reality of the combined import of the two constitutional clauses is that Congress as a whole retains a great deal of authority over the structure and the content of the federal judicial branch. Inferior courts are left to the legislature to define, as are the number of Supreme Court judges; the first Congress did both in the Judiciary Act of 1789 and continued to articulate such parameters in subsequent acts. The president, therefore, affects the composition but not the construction of the federal courts. Moreover, the unelaborated senatorial “advice and consent” would prove to be much greater than a perfunctory approval role, with the full Senate taking a very active interest in the judges nominated for service on the federal courts, inferior and Supreme. This was partly because, for many decades, Supreme Court judges’ duties included “riding circuit”: sitting, with federal district (inferior) judges located in states, to form appellate courts of review for those federal trial court decisions issued in that geographic area. Each Supreme Court judge, or justice, had a territorial jurisdiction that fell within the shared purview of the senators of various neighboring states. So a Supreme Court appointment was a vital state interest, and members of the Senate did not hesitate to advise presidents. Judicial selection was thus linked, initially, to a regional distribution pattern and the size of the court to the number of federal circuits. And, notwithstanding the senatorial interest in who would serve as judge on the state’s regional federal circuit court, senatorial consent very quickly took the form of a confirmation vote, up or down, on the president’s proffered judicial candidates—affecting one of the early nominations to the Supreme Court, by President Washington, of John Rutledge, who was ultimately rejected as a replacement chief justice even though he ended up serving several months as a recess appointment.

The takeaway point, in reviewing the constitutional framework and its origins, is that the formal outline of the federal judicial selection process circumscribed presidential authority—both in its original purpose and its initial operations.

Mileposts: Transformational Moments and Events

The first period of presidential judicial selection, from the presidency of George Washington through that of Andrew Jackson, set a template for both nomination and confirmation criteria and the politics of inter-branch relations with respect to staffing the federal judiciary. From early on, two criteria stood out in presidential identification of nominees and senatorial evaluation of them: party loyalty or identity, and geographic or regional representation. Washington, in particular, faced the special challenge of establishing a precedent, both for the respectability of the new judicial branch and for the presidential role in shaping its membership. The pursuit of excellence in candidates was his overarching motif; likewise, their support and advocacy of the Constitution, as Federalists like himself, was critical to their qualification as potential judges. A candidate’s geographic home also strongly influenced Washington, for two reasons. First, as Henry Abraham remarks in his seminal study Justices and Presidents, the first president regarded geographic appointments “as extremely important in light of his constant endeavor to be president of all the states of the fledgling nation, and he repeatedly expressed his desire to see each section ‘represented’ on the Supreme Court” (3rd ed., pp. 78–9 [emphasis in original]). The strategic use of judicial appointment to bind the states together into the federal system was behind this concern for representativeness, just as rewarding strategic states—electorally for the party or, more contemporaneously, for the ratification of the Constitution—could be accomplished with a seat on the highest court. But there was a second, equally functionalist purpose to considerations of geography: the Supreme Court justices, for most of the first century of their service on the institution, had the critical state-based duties of sitting in circuit with state-located district judges as part of appellate court review panels. As those circuits and a justice’s share of the work were defined by region, the justice’s home state mattered, for he was not only an emissary of the national government but also a local son familiar with and sympathetic to that circuit’s particular kinds of legal cases and controversies.

What Washington understood, but some of his successors over the decades did not, was that loyalty to the party cause is best tempered with stature as a jurisprudential figure. While no one can fault the second president John Adams for selecting the great and truly first Chief Justice John Marshall, Adams nevertheless struggled to convince a Senate controlled by his own party to accept a candidate without judicial experience or apparent aptitude. (Marshall seemingly possessed neither.) James Madison, in particular, had something of a checkered run with his Supreme Court appointments: parrying with Congress was not among his gifts. And both he and subsequent president John Quincy Adams suffered the indignity (or simply the setback) of having successfully confirmed nominees then decline the position on the high court. (Adams, indeed, declined such from Madison himself.) The pled lack of legal competence and/or bigger fish to fry politically seemed to be the reasons, and even Washington had at times struggled to pitch a Supreme Court seat as sufficiently attractive to ambitious, policy-minded politicians.

Only with the tenure of Andrew Jackson did the first period of presidential judicial selection fully flower from its Washingtonian seed. Jackson’s term of office saw an adroit presidential wielding of the candidate qualities of party loyalty, geographic identity, and affinity for the judicial institution to select judges who both served political purposes and promoted judicial branch sovereignty. Without the latter institutional affinity, a president’s judicial appointees cannot fully realize the presidential aspiration to use the courts to further partisan and administration objectives. Washington had of course seen this opportunity and attempted to exploit it, but the uncertain juridical capability and ensuing unappealing career path of the federal judiciary partially stymied the efforts of early presidents.

Jackson’s presidency (1829–36) would fulfill the appointive precedent set during Washington’s (1789–1800). His nominations sharpened the notion of presidential partisan goals, even while he hewed carefully to geographic considerations. Indeed, regional sectionalism overlaid with party strife combined with assertive congressional leaders to complicate and occasionally confound Jackson’s appointee choices. But his partisan fellows were almost all uniformly capable political actors who proved to be shrewd and skillful judicial actors, including his choice for the next chief justice, Roger Brooke Taney. And as congressional legislation enlarged the size of the Supreme Court in creating new circuits to serve the expanding nation of newly admitted states, Jackson and his handpicked successor Martin Van Buren carefully balanced shared party vision with regional appropriateness.

Regional conflict, the division between agrarian slave and commercial free states, and the coming Civil War between the secessionist South and the unionist North, would of course make presidential considerations for geographical balance in staffing the federal judiciary seem rather quaint. The period following Jacksonianism and into the Civil War and the presidency of Abraham Lincoln is, presidential judicial appointment-wise, a period of heightened congressional insurgency and sectional sectarianism. Presidential challenges of finding nominees who would unify disparate groups took various forms but characterized the judicial selection climate, up until the next milepost or transformational moment in the exercise of the judicial appointment power. Unlike the first “moment,” which was a period and a formative one, this second milepost was an event and a transformative one.

For the purpose of this chapter’s history of the development of the president’s Article II appointment power, we call this event “the Senate gets political.” The president on the receiving end of these senatorial maneuvers in advice and consent was the unfortunate and minimally talented figure of Andrew Johnson. The story that this milepost event reveals is that a less-than-capable president can substantially worsen disadvantageous circumstances. The Johnson episode, which congeals around his single and unsuccessful Supreme Court nomination, highlights the ever-shifting territory of inter-branch relations with respect to federal judicial appointment. A president neglects institutional dynamics and senatorial power at his peril.

The Judiciary Act of 1866 is the centerpiece of a Johnson story of congressional retaliation for presidential obstruction of powerful Republican party operatives and their objectives to define and execute Reconstruction as a policy—a story that of course includes articles of impeachment voted and proceeding one vote shy of conviction. But the Johnson story is also a lesson as to the constitutionally supplied pitfalls of any period of congressional assertiveness. The Act of 1866 responded to Johnson’s effort to name a replacement for a vacant Supreme Court seat by reducing the size of the body from ten to nine and then, by the next natural attrition, to eight. What the act communicates, first and foremost, is that Congress controls the number of justices, the number of potential presidential appointees. Article III is silent on this, just as it leaves to congressional disposition—in every sense of the word—the structuring of the personnel who will make up the federal judiciary. A vigorous Congress will take advantage of such opportunities—just as a series of dominant Senates used the confirmation power to frustrate the judicial nominations of a series of compromised presidents in the decades leading up to Lincoln’s momentous election in 1860. Congress ascendant poses a significant constitutional threat to an unwary or inept president, as proposals in 1867 and 1868 to place judicial selection entirely in legislative hands unsubtly suggest.

The Judiciary Act of 1866, as an anti-Johnson measure, also signifies the reality of the Senate’s own partisan appointment goals with respect to the federal judiciary. While its advice and consent were never pro forma, the act to reduce court size and essentially take away from a sitting president future staffing options demonstrates that a mobilized congressional party—as the Radical Republicans were in this era—can and will seek to secure an advantage and an advantageous voice for its own preferred appointees. (Freezing court size during this time period kept in place a sizeable majority of safely pro-Lincoln justices.) Senators, in other words, can have political or ideological appointment objectives just as much as presidents can. Senators are, moreover, equipped with weapons in the constitutional system—weapons of their own body and as part of Congress—to effectuate those objectives. The constitutional framework is a formal baseline from which senatorial as well as presidential discretion and leadership can operate: the painful teaching moment that the Senate getting political was for President Johnson. Presidential appointment opportunity foreclosed says it all, without quite saying enough to describe the defeat that was his.

If the aforementioned milepost event was a systemic milepost that advanced the formal baseline sketched by the Constitution to the Senate’s advantage, the next milepost in the evolution of judicial appointive power was an event that integrated historical changes of a political cultural variety. These changes were the rise of organized group interests in American politics, new ethnic and religious demographics for a new, twentieth-century nation, and new notions of professional merit in the Progressive era that challenged the old political order. All three of these society-wide phenomena combined to touch and to shape the contentious confirmation of Supreme Court nominee Louis Brandeis. Appointed in 1916 by President Woodrow Wilson after a bitter political battle filled with borderline defamatory accusations, Brandeis was the first Jewish justice to serve on the high court. As a candidate, he was subjected to charges of political radicalism, scurrilous assaults on his character, and anti-Semitism. Historically speaking, his appointment would highlight a new chapter in the judicial selection process: the role of organized political opposition in the operation of advice and consent.

His nomination also earmarked a new presidential aspiration for judicial candidates: political fealty demonstrated in innovative and impactful legal advocacy. Progressives like Wilson never discarded the notion of party-political compatibility between themselves and their nominees, but the Progressives as a political movement were less tied to the strictures of partisanship and more open to considering a potential appointee’s “real” politics and a broad range of “political” activities as qualifications. Brandeis’ success and distinction as an advocate for social justice and his path-breaking use of sociological data in his appellate briefs brought Brandeis acclaim as the People’s Lawyer, caught the attention of the president who esteemed his counsel on policy matters, and drew the ire of the pro-business interests who labeled him a dangerous radical. Brandeis was a new kind of judicial candidate, in several different ways. He represented the force of political progressivism in law and a stance toward law and courts as engines of social change and reform. He was, in that sense, an activist legal intellectual. He also reflected the more diverse ethnic and religious demographics of the United States at the turn of the twentieth century, as immigration patterns shifted and new urban population centers and new urban elites developed. Both aspects of his background inspired an organized opposition to his nomination of a kind that had never been seen before.

Antipathy to his reformist politics and anti-Semitic feelings combined into a campaign led by conservative forces in American industry and finance and their allies in the professional bar; sympathetic senators hostile to Wilson’s agenda united with prominent, pro-business newspapers such as the Wall Street Journal and the Los Angeles Times to denounce Brandeis’ professionalism and temperament. The suspicion, of course, was that he was a dangerous radical: a socialist critic of the capitalist system and a practitioner of a sociological jurisprudence that advantaged the cause of pro-labor, egalitarian reform. His patriotism was impugned, which was deeply unfair, and a measure of the threat his legal progressivism posed to conservative Republican orthodoxy. While not derailed, his appointment was delayed for more than four months by endless hearings and witness testimony. Indeed, Brandeis’ selection marked the first time that the Senate Judiciary Committee held public investigative hearings on a nominee—not coincidentally, a public exercise following quickly on the heels of the ratification of the Seventeenth Amendment and the subjection of senators to direct popular election.

Senatorial opponents used the new confirmation procedure to call witnesses they hoped would malign the candidate’s character and scuttle his appointment. Yet many senators were themselves reluctant to speak out against the nominee, due to Brandeis’ widespread popular support and almost folk-hero status. In the end, that, and his steadfast presidential support prevailed, with 47–22 senators voting to confirm and twenty-seven not voting at all.

As Confirmation Wars author Benjamin Wittes writes, “While interest groups had played a role in prior nominations, the Brandeis nomination marked a significant procedural step toward the modern system: Popularly elected senators had begun investigating nominees with one eye on their constituents” (2006, 48). Did pro-business interests and elites hold captive the senators who mounted this investigative campaign? Interest group scholars would argue that this period of American political history, at the turn of the twentieth century, saw rising levels of political corruption as industry trusts and monopolies sought to use the political and legal systems to enshrine statutory advantages for (or, more often, prevent statutory disadvantages to) their economic hegemony. Judicial interpretations of the Constitution that protected economic rights such as the liberty of contract were sought as part of these advantages, turning business elites and their senatorial avatars into an organized interest in opposition to judicial candidates who supported governmental authority to pursue regulatory reform. Senators’ “constituents” were thus the dominant, organized special interests that defined senatorial electoral politics by controlling state party politics and, thus, sought to influence judicial confirmation politics. Yet labor and populist forces could also sway an electorate; ultimately, it was fear of and reaction to this opinion favoring Brandeis that turned so many senators craven or weakly supportive.

Ironically, though Brandeis was finally appointed and served with great distinction, the conflict between organized opposition and intellectual merit that threatened to warp and even jeopardize his confirmation would discomfit many a future president to compromise on the latter. Selecting visionary thinkers or leading-light litigators and facing the prospect of an organized political opposition, networked between legislators, their special interests sponsors, and their press outlets, was something few presidents undertook, lightly or at all. But as a result of the Seventeenth Amendment, presidential calculations in the matter were now remar...