Questions, answers on picking high court nominee
WASHINGTON — Lightning must strike and sometimes more than once for someone to be nominated to the Supreme Court, Justice Stephen Breyer has said.
But the way prospective justices are chosen, while sometimes messy, has none of the randomness of the lightning bolt.
Presidents set their staffs working on potential candidates almost from the day they take office, if not before. Writings are analyzed and personal lives are combed for problems.
Before a smiling President Barack Obama stands with his nominee to replace Justice David Souter and sings her praises, teams of lawyers in the White House and at the Justice Department hope they know everything there is to know about the person, most likely a woman this time.
But how do presidents decide whom to pick?
Here are some questions and answers on that topic:
Q: Why is the current court made up entirely of former federal appeals court judges?
A: The short answer is that judges have written records and federal appeals court judges, in particular, do the same kind of analysis and writing as their counterparts on the high court. A judge’s opinions are like a road map, or so it is hoped, to her decision-making as a justice.
Q: Why is it important for a president to know how his choice will rule on the Supreme Court?
A: It wasn’t always so, but the court has been split between conservatives and liberals on the most controversial social issues for more than a generation, including abortion, race and the line between church and state. These cases make up a small share of the court’s docket, but they garner the most attention from the media and interest groups across the political spectrum.
Q: But don’t some justices part company with the presidents who nominated them?
A: Yes, and Souter is the best example of that divergence on the current court. He was described as a “home run” for conservatives after President George H.W. Bush nominated him, but Souter had been an appeals court judge for only a few months when he was chosen, compiling only a sparse record. In fact, little was known about his judicial philosophy.
Q: Do presidents know the people they choose?
A: President George W. Bush knew only one of the three people he picked for the court. Harriet Miers, his White House counsel and longtime loyal aide, ultimately dropped out under fire from conservatives who criticized her for having thin credentials on constitutional law and no proven record as a judicial conservative. Bush’s other two nominees, Chief Justice John Roberts and Justice Samuel Alito, were widely regarded as having solidly conservative records as judges and Republican administration officials before that.
President Dwight Eisenhower promised Earl Warren the first Supreme Court vacancy, President John Kennedy picked his friend Byron White and President Lyndon Johnson chose his friend and adviser Abe Fortas, who later left the court under a financial cloud.
Q: Are there any qualifications to be a Supreme Court justice?
A: No. Justices need not be lawyers or even American citizens, but Obama’s nominee will assuredly be both.
Q: What reasons, other than judicial philosophy, matter in this process?
A: Other factors that could be important this time around include the ability to persuade. The requisite political skills could be the difference between a majority opinion and a dissent on a closely divided court. Souter has been a reliably liberal vote on the court, but he has not been known for attracting wavering justices to his side.
Q: Does symbolism matter?
A: Women make up about half of law school graduates, a third of the legal profession and a fourth of federal judges. Justice Ruth Bader Ginsburg is the only woman on the Supreme Court. Two black men have been on the court — the late Thurgood Marshall and Justice Clarence Thomas. There has never been a Hispanic justice.
Q: What about age?
A: It matters, especially because Supreme Court justices are sometimes seen as a president’s most lasting legacy. Ginsburg was 60 when she came to the court in 1993 and she was the oldest of the eight justices who have joined the court since 1981. (William Rehnquist was 61 when he became chief justice in 1986, but he had been on the court for 14 years at that point.) Bush’s two choices were 55 or younger and his father tapped the 51-year-old Souter and the 43-year-old Thomas. When President Richard Nixon nominated 61-year-old Warren Burger as chief justice, he was looking for someone who would serve at least 10 years. These days, the expectation is two decades, at least.
Q: What does this mean to ordinary people?
A: The temptation is to say that any one nomination doesn’t mean much, especially if a justice is replaced by a like-minded successor. But even apart from the high-profile cases, the court is involved in all kinds of matters that affect people’s ability to sue if they feel they’ve been harmed or declare and emerge from bankruptcy or avoid deportation if they are immigrants. Consider one case from last term in which Souter, breaking with his liberal colleagues, wrote the opinion and was the decisive vote. Alaskan victims of the Exxon Valdez oil spill were one high court vote shy of collecting $75,000 each in punitive damages from Exxon Mobil Corp. Instead, the court slashed the award by 80 percent, leaving the victims with $15,000 each.
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