The Judicial Bookshelf

Abstract

The Judicial Bookshelf DONALD GRIER STEPHENSON, JR. “The good that Presidents do is often interred with their Administrations. It is their choice of Supreme Court Justices that lives after them.”1 This was the assessment offered by one leading opinion journal more than seven decades ago, after President Franklin D. Roosevelt nominated Professor Felix Frankfurter to the Supreme Court to fill the opening occasioned by the death of Justice Benjamin N. Cardozo. Because vacancies on the Court not only are infrequent but also occur at irregular intervals, the comment illustrates the reality that selection of Justices is among the most important and consequential responsibilities that fall to any chiefexecutive. This truth was amply demonstrated fol­ lowing Justice David H. Souter’s announce­ ment on May 1,2009 ofhis intention to retire. This news was followed on June 1 by Pres­ ident Barrack Obama’s nomination of Judge Sonia Sotomayor of the United States Court of Appeals for the Second Circuit to fill Jus­ tice Souter’s seat. Like Samuel A. Alito, Jr., the Court’s then mostjunior Justice, she was a graduate ofPrinceton University and Yale Law School and had experience both as a prosecu­ tor2 and as a judge on a federal court of ap­ peals. Unlike Alito, she had served as a federal trial judge and had experience in private prac­ tice, but she lacked his other executive-branch experience in the offices ofthe Solicitor Gen­ eral and the Attorney General of the United States. She was also the first Latina to be named to the High Court and the first nominee by a Democratic President in fifteen years. More­ over, she possessed a compelling life story that had begun in a housing project in the South Bronx ofNew York City in the home ofPuerto Rican-born parents. A positive 13-6 vote in the Senate Committee on the Judiciary on July 28 preceded a favorable confirmation vote of 68-31 by the full Senate on August 6. The neg­ ative votes, however, totaled more than any Democratic nominee had received since the Senate rejected President Grover Cleveland’s nomination of Wheeler Peckham in 1894.3 Chief Justice John G. Roberts, Jr. swore in the 111th Justice on August 8. Justice Sotomayor’s appointment demon­ strated a basic truth about American politics. Although the separate institutions mandated by the Constitution make possible the Court’s considerable independence from outside po­ litical pressure, three factors thrust the Court 178 JOURNAL OF SUPREME COURT HISTORY into the partisan life of the nation: the role of interpretation the Constitution allows for the Justices, the significance of the decisions the Justices render, and the method of se­ lection of Justices that the Constitution pre­ scribes. Little wonder the appointment ofJus­ tices is of paramount concern to Presidents, Senators, and citizens alike. Indeed, for some observers, Justice Sotomayor’s arrival called to mind a comment offered by then Senator Joseph Biden following the confirmation of Justice Sandra Day O’Connor in September 1981: “There is a huge amount of whistling in the graveyard about what kind of Justice [she] will be.... I believe we should caution the electorate that even ifthey want us to apply a litmus test... it is not something we do very well; because once a Justice dons that robe and walks into that sanctum across the way, we have no control, and that is how it should be.... They are a separate, independent, and equal branch of Government, and all bets are off.”4 This political dimension of the Court’s work is generously illustrated by recent books about the Third Branch. Appropriately, two of these monographs treat judicial selection itself and thus join an expanding list of complementary titles.5 Aus­ piciously appearing in print between the ar­ rivals of Justices Alito and Sotomayor was The Next Justice by Christopher L. Eisgruber ,6 who is Provost and a professor of pub­ lic affairs in the Woodrow Wilson School at Princeton University. His volume is a sensible, illuminating, and sometimes insightful look at the confirmation process for Supreme Court nominees.7 For a subject that can appear com­ plex and often be emotionally charged, the author has provided an...