The Senate Confirmation Process and the Quality of U.S. Supreme Court Justices

Abstract

Some critics of the confirmation process for U.S. Supreme Court nominees have claimed that the contentiousness of the contemporary process has induced presidents to nominate lesser known figures of lesser merit to the High Court, rather than first-rate legal scholars of well known and likely controversial views. This dynamic has led, in the words of one commentator, to a “Court of mediocrity.” This paper tests that thesis by analyzing the results of a survey of constitutional law scholars on the overall “quality” of the Court's twentieth-century appointees. The results place none of the justices appointed since the late 1960s in the survey's highest category: “Excellent.” However, the results indicate that the recent justices are, as a whole, just as able as the average justice of earlier in the twentieth century. A majority of the recent justices score above the mean rating of their earlier twentieth-century predecessors at a statistically distinguishable level. Moreover, the discussion of the survey results shows that the conditions for the appointment of great justices are still present.