Supreme Court Nominees Research Articles

Hearing Women’s Stories

As I sit down to write this, it’s been exactly one year since the New York Times broke the story of decades of sexual assault allegations by Hollywood mogul Harvey Weinstein. I know, because I’ve been glued to the Times website, like many women in North America and around the world, waiting to hear if the Senate will vote to confirm Republican Supreme Court nominee Brett Kavanaugh. Kavanaugh gave an extraordinary performance of White male self-entitlement before the Senate judiciary committee convened to grill him about accusations of sexual misconduct; this came hot on the heels of Dr. Christine Blasey Ford’s historic own testimony, in which she detailed her painful memories of his assault on her, and patiently taught the assembled Senate panelists how human psychology works, and how trauma is retained in the brain.

Arthur Vandenberg: The Man in the Middle of the American Century by Hendrik Meijer

Reviewed by: Arthur Vandenberg: The Man in the Middle of the American Century by Hendrik Meijer John J. Miller Hendrik Meijer, Arthur Vandenberg: The Man in the Middle of the American Century. Chicago: University of Chicago Press, 2017. 448 pp. $35. In Michigan, the reminders of him are everywhere: His bespectacled statue stands at a downtown hub in Grand Rapids; his name emblazons a couple of elementary schools as well as an Oakland University dorm in metro Detroit; and a state historical marker commemorates his role in the birth of the UN and NATO, near the Grand Hotel on Mackinac Island. Yet now Arthur Vandenberg may have his most enduring monument of all, in the form of an excellent biography by Hendrik Meijer. The Man in the Middle of the American Century is a fitting title. A leading senator of his time, Vandenberg (1884–1951) was a legislative middleman who cut deals with presidents and colleagues. He was a middle-of-the-road Republican who balanced his own conservative impulses with the progressive imperatives of his time. Close to the twentieth century's midpoint, he demonstrated the ability to change his mind and made a lasting mark in [End Page 111] foreign policy. Meijer sums up his legacy with appealing concision: "Harry Truman was in trouble without him." As a boy, Vandenberg got into his own bit of trouble because of Th eodore Roosevelt. In 1900, when Vandenberg was 16, the vice-presidential candidate, a fellow Dutchman, visited Grand Rapids on a campaign stop. A curious Vandenberg slipped away from his job at a biscuit factory to have a look. When he returned, his boss fired him for truancy. The next day, this apparent misfortune became a lucky break because Vandenberg secured a job as a writer at the Grand Rapids Herald, the city's morning newspaper. From this position, he began his long climb. He took a big step in 1906, when he was just shy of twenty-two years of age. The Herald's editor died suddenly, and its owner turned to his bright young writer. Vandenberg had earned a reputation for productivity as well as verbosity: "No one was better at bulking up a story with five-dollar words," writes Meijer. As Vandenberg matured, he never lost his willingness to work hard or his penchant for pomposity, but he also became a "gift ed phrasemaker." He may have popularized the term "fiddle-faddle," meaning "nonsense." Both Warren Harding and Henry Cabot Lodge sought his advice and borrowed his lines—a reminder that regional newspaper editorialists once enjoyed much more influence than they do today. Vandenberg's prominence as a journalist, in fact, led to his appointment to the Senate in the spring of 1928. He remained a senator until his death twenty-three years later. A colleague once described him as "the only Senator who can strut sitting down." Driven by the mix of ambition and insecurity that propels so many careers, then and now, Vandenberg engaged in the day's disputes over congressional reapportionment and tariffs, mainly hewing to GOP positions. Yet he also broke with President Herbert Hoover, a fellow Republican, over the Supreme Court nomination of John J. Parker, a segregationist from North Carolina. Vandenberg cast a decisive vote against Parker, who became the only potential justice formally rejected by the Senate during the seventy-five-year period from 1894 to 1969. Vandenberg clashed more often with Hoover's Democratic successor, Franklin Delano Roosevelt, whom he referred to as "Dr. Jekyll and Mr. Hyde Park." During the early days of the New Deal, the Michigander pushed for the establishment of the Federal Deposit Insurance Corporation, which Roosevelt initially opposed. For the most part, though, Vandenberg was a fiscal conservative who wanted to keep government spending in check. The [End Page 112] New Deal, he quipped, had become the "New Ordeal." He went on to block a White House scheme to build a ship canal across Florida's peninsula in the kind of negative achievement that historians often overlook. Roosevelt became so wary of his rival that he ordered FBI director J. Edgar Hoover to open an office in Grand Rapids and, in Meijer's...

Unchained Succubus: A Queer New Institutional Analysis of U.S. Supreme Court Nomination Hearings

Modern Supreme Court nomination hearings are contentious political events, as evidenced by the four held during the 109th and 111th Congresses to confirm John Roberts, Samuel Alito, Sonia Sotomayor, and Elena Kagan. Senators appear to raise suspicion of nominees purposefully through their questioning during Judiciary Committee hearings, connecting the label of “judicial restraint” with candidates who are male, white, straight, and prone to “reason.” Appointees thought to embody the feminine, nonwhite, queer, and emotional practices of “judicial activism” to offer a contrast. This dichotomous construction has made debates during the nomination process destructively reductive. A paradox thus emerges: by ignoring the importance of descriptive representation, the identity of potential justices to the Supreme Court becomes one of the most salient issues during the hearings; subsequently, this has resulted in senators using cues to create a caricature or “straw man” of nominees belonging to one or more minority groups in order to weaken and discredit otherwise qualified jurists and achieve a party “win” against the White House.

Someone like Me: Descriptive Representation and Support for Supreme Court Nominees

Extant research on public support for judicial nominees finds that ideological congruence with the nominee is the most important factor in an individual’s decision to support a nominee. The research presented in this article develops the theory that for individuals from underrepresented groups, a shared descriptive identity with the nominee will moderate the negative effect of ideological distance. We test our theory using the nominations of Clarence Thomas, Elena Kagan, and Sonia Sotomayor. Furthermore, we conduct placebo tests to determine whether the effect of ideology is moderated for underrepresented groups when a shared descriptive identity is not present. We find that in the context of the Thomas nomination, a shared racial identity led to increased support for Thomas among liberal African Americans. We find similar effects in the case of Kagan and conservative women. In the case of Sotomayor, we find that a shared ethnic identity led to increased support among conservative Latinos, regardless of gender. We conclude by discussing the implications our findings have for descriptive representation and presidential selection of judicial nominees.

Who Framed the Women? Measuring the Public Relations Impact on the Media's Framing of the U.S Supreme Court Nominees

This study seeks to determine if Presidents frame female nominees to the highest court differently than their male counterparts in ways consistent with other female leaders. Entmen (1993) defines framing as process whereby certain aspects of a perceived reality are selected and made more salient in communication. This work further examines how U.S. Presidents select and highlight certain aspects of their U.S. Supreme Court nominees' background, experience and personal attributes in public relations materials. By analyzing frames in public relations materials and comparing them to those found in testimony by third parties and in newspaper coverage, the study will determine the effectiveness of the Presidents to influence others to utilize his frames.

Judging the “Vapid and Hollow Charade”: Citizen Evaluations and the Candor of U.S. Supreme Court Nominees

Supreme Court confirmation hearings have been famously called a “vapid and hollow charade” by Elena Kagan. Indeed, perceptions of nominees’ refusal to answer questions about pending cases, prominent political issues, or give any hint of their ideological leanings have become a cornerstone of the modern confirmation process. We investigate the extent to which this reticence to speak of their ideological views, or candor, influences how individuals evaluate the nominee. To this end, we present the results of a survey experiment which examines how support for a hypothetical Supreme Court nominee is affected by information, especially when a nominee is presented to be very forthright or very reticent in answering ideological questions during the confirmation hearings. We find that while partisan compatibility with the president is the main determinant of support for a nominee, nominees who refuse to answer ideological questions can bolster support from respondents who would not support them on partisan grounds. We supplement these findings with observational state-level support data from real nominees over the last 40 years.

The Case of the Frozen Trucker: A Collage and Homage

Supreme Court nominee Judge Neil Gorsuch has been questioned sharply by certain senators about his reasoning in the now-notorious of the frozen trucker. This Essay assimilates that case to Lon Fuller's classic work of Legal Process, the Case of the Speluncean Explorers. By setting out various opinions on the frozen-trucker case by the fictional Supreme Court of Newergarth, this Essay explores ongoing jurisprudential debates concerning the proper role of courts in construing statutes and how courts should approach administrative lawmaking. The (fictional) Newergarth Court whose opinions appear herein comprises not only Chief Justice Truenickel, but also Justices Moresuch, Phranken, and Houghtelier. The Essay may be of particular interest to those teaching legislation, administrative law, or fed courts.

Are Supreme Court Nominations a Move-the-Median Game? – ERRATUM

The above paper (Cameron, C.M. and Kastellec, J.P. 2016) was published with a few errors.Figure 2 and some accompanying text is incorrect. These errors do not affect the discussion of the predicted locations of nominee ideology—instead, the published version sometimes characterizes nominees as moving-the-median when in fact they do not (they also do not affect any of the empirical tests in the article). This mischaracterization occurs for the position-taking senators and mixed-motivations model—for the court-outcome and nearly court-outcome models, Figure 2 and the accompanying text are unchanged. We regret the errors.

Gorsuch's 10th Circuit Work Backs ADR and the FAA, But His Opinions Will Depend on His View of Contracts

The ADR vetting of U.S. Supreme Court nominee Neil M. Gorsuch doesn't change much: The Tenth U.S. Circuit Court judge still holds the conservative ideological categorization that the broader view of his opinions inspires.

Obama’s Judicial Legacy: The Final Chapter

AbstractThis article looks at the appointment and confirmation politics of President Obama’s nominees during the 114th Congress in which unprecedented obstruction and delay of Obama's nominees including the Supreme Court nomination of Merrick Garland occurred. This is placed within the overall context of Obama’s impact on the judiciary. The demographic portrait of the Obama judiciary is sketched with special attention to the historic record of diverse nontraditional appointees. We conclude with a look at what lies ahead with the Trump administration and judicial appointments/confirmation.

Are Supreme Court Nominations a Move-the-Median Game?

We conduct a theoretical and empirical re-evaluation of move-the-median (MTM) models of Supreme Court nominations—the one theory of appointment politics that connects presidential selection and senatorial confirmation decisions. We develop a theoretical framework that encompasses the major extant models, formalizing the tradeoff between concerns about the location of the new median justice versus concerns about the ideology of the nominee herself. We then use advances in measurement and scaling to place presidents, senators, justices, and nominees on the same scale, allowing us to test predictions that hold across all model variants. We find very little support for MTM theory. Senators have been much more accommodating of the president’s nominees than MTM theory would suggest—many have been confirmed when the theory predicted they should have been rejected. These errors have been consequential: presidents have selected many nominees who are much more extreme than MTM theory would predict. These results raise serious questions about the adequacy of MTM theory for explaining confirmation politics and have important implications for assessing the ideological composition of the Court.

Confirmation Wars, Legislative Time, and Collateral Damage

Presidents often see a Supreme Court nomination as an opportunity to leave a lasting mark on policy. Recent studies speculate that focusing on Supreme Court nominees affects presidential success beyond the confirmation process, but this has not been established systematically. We develop and test a hypothesis stating that presidents who get into a battle to promote a controversial Supreme Court nominee will see delays and failures in their efforts to promote their legislative agenda in the Senate and fill lower level judicial vacancies. We test our theory using data on presidential policy agenda items from 1967 to 2010 and lower level judicial nominations from 1977 to 2010. We find that increased efforts in promoting confirmation reduce the likelihood of timely Senate approval of important policy proposals and nominees to federal district courts.

Systems Science and the Supreme Court

Until now, the controversy surrounding Supreme Court nominee, Merrick Garland, has been analyzed from traditional legal perspectives like history, constitutional philosophy, and political theory. So viewed, the appointment crisis is simply a problem of general jurisprudence, which relies upon the humanities and “soft” sciences to understand and explain law’s concepts and conundrums. But this problem-solving approach itself is problematic. Because legal institutions like the Supreme Court are complex social systems, they are susceptible to deeper scientific explanation. In fact, two of “hard” science’s most exciting discoveries — complex systems theory and coordination dynamics — seem to offer insights not accessible through rational analysis or rhetorical argumentation. This brief essay highlights these scientific breakthroughs, explains their key features, and reveals their significance for the law, the Supreme Court, and the Court’s appointment process.

Distant Echoes: Discussing Judicial Activism at Canadian and American Supreme Court Nomination Hearings

This paper begins by tracing Canadians’ concerns about judicial activism. Part II surveys how academics, commentators, and others have reacted to perceived overreaches by Canada’s highest court over time. By evaluating the comments made by Justices Marshall Rothstein, Michael Moldaver, Andromache Karakatsanis, and Richard Wagner at their nominee hearings, Part III shows the paucity of official public discussion on the topic. Changing countries, Part IV explains how judicial activism has been canvassed recently in American Supreme Court nomination hearings; this part assesses how the topic has been addressed during and since Chief Justice John Roberts’s confirmation hearing in 2005. Part V analyzes Justice Nadon’s comments and demonstrates how they depart from Canadian precedent and towards a deeper, more American focus on the topic’s vagaries. Part VI concludes with some thoughts on what Nadon’s comments may portend should televised ad hoc committee hearings for Supreme Court nominees be restarted.

The Garland Affair: What History and the Constitution Really Say About President Obama's Powers to Appoint a Replacement for Justice Scalia

After Justice Antonin Scalia’s death, politicians wasted no time before teeing up a political battle over his replacement. Republican Senators — led by Senate Majority Leader Mitch McConnell — immediately announced that they would not consider or vote on any replacement nominees from President Barack Obama. Instead, Senate Republicans deliberately seek to transfer President Obama’s power to appoint Justice Scalia’s replacement to the next elected President. This plan has generated substantial debate, but the debates have yet to engage with some of the most important historic, pragmatic, and constitutional risks of the plan. With Judge Merrick Garland’s nomination to the U.S. Supreme Court pending and Donald Trump, the presumptive nominee of the Republican Party, announcing his alternative list of nominees if elected, this Article seeks to bring greater attention to these risks.We begin with history and show a striking fact that has not yet been recognized: There have been 103 prior cases in which — like the case of President Obama’s nomination of Judge Garland — an elected President has faced an actual vacancy on the Supreme Court and began an appointment process prior to the election of a successor. In all 103 cases, the President was able to both nominate and appoint a replacement Justice, by and with the advice and consent of the Senate. This is true even of all eight such cases where the nomination process began during an election year. By contrast, there have been only six prior cases in which the Senate pursued a course of action that — like the current Republican Plan — deliberately sought to transfer a sitting President’s Supreme Court appointment power to a successor. In all six such cases, there were, however, contemporaneous questions, not present here, about the status of the nominating President as the most recently elected President. The historical rule that best accounts for senatorial practices over the entirety of U.S. history is thus the following: While the Senate has the constitutional power to provide advice and consent with respect to particular Supreme Court nominees and reject (or resist) particular candidates on a broad range of grounds, the Senate may only use this power to deliberately transfer a sitting President’s Supreme Court appointment powers to a successor in the highly unusual circumstance where the President’s status as the most recently elected President is in doubt. Given this more than two-century long tradition, the Senate Republicans’ current plan marks a much greater departure from historical precedent than has thus far been recognized. There is, however, still a further question whether the historical rule we uncover reflects a mere senatorial tradition, which should govern internal senatorial practices of fair dealing, or has further ripened into a constitutional rule that should inform the best interpretation of constitutional text and structure. In either case, the consequences of the plan are far more serious than its architects could have originally understood. After describing both possibilities, we suggest that Senate Republicans should rethink their plan so as to avoid these newly exposed historical, pragmatic and constitutional risks. Instead of continuing forward, the Senate should do what it has always done in similar past circumstances. It should proceed to full Senate consideration of Judge Garland or any other nominees that President Obama submits in a timely manner.

Showdown: Thurgood Marshall and the Supreme Court nomination that changed America

Showdown: Thurgood Marshall and the Supreme Court nomination that changed America

Memorandum on Supreme Court Vacancies and Confirmations During Presidential Election Years

The author summarizes historical examples of Supreme Court vacancies during presidential election years (or the year prior), and the outcomes of presidential nominations to those Supreme Court vacancies. The facts are quite striking, and refute widespread arguments by Republican politicians that President Obama should not nominate, and the Senate should not approve or even consider (until after Obama's term concludes), any replacement for Justice Antonin Scalia, who died on February 13, 2016.There is not a single case in American history in which an incumbent president chose not to make a Supreme Court nomination in such circumstances, even for vacancies occurring extremely late during the president's term. Of the total of 26 such vacancies considered, the Senate gave full consideration to nominees in at least 23 cases (88%), and 22 (85%) of the vacancies were successfully filled by the incumbent president.Two of the 26 cases, however, when an incumbent president made a nomination after being reelected, are best excluded as irrelevant. Of the remaining 24 relevant vacancies -- 15 occurring during the election year (or even in the early part of the year following) and 9 occurring during the year before the election year but persisting into the election year -- 21 (87.5%) received Senate consideration and 20 (83%) were successful. Further excluding seven vacancies which occurred after June during the election year (thus much closer to the election and allowing much less time to consider a nominee), 15 of the 17 remaining vacancies (88%) were successfully filled by the incumbent president, and all but one case (94%) received full Senate consideration.In the one solitary case (April 1844) of an early-election-year vacancy that did not receive a full Senate vote, there were actually two vacancies pending that year, and that lame-duck president did obtain two final Senate votes on, and eventually succeeded in filling, the other vacancy, which occurred in December 1843, right before that election year.The most highly relevant comparison would be with the eight vacancies that actually occurred during a presidential election year, but no later than June. The president, again, made a nomination in all eight of those cases, at least seven of eight (87.5%) received full Senate consideration, and six of eight (75%) were successful.

Historical dictionary of the U.S. Supreme Court

Editor's Foreword, Jon Woronoff Preface Acronyms and Abbreviations Chronology Introduction THE DICTIONARY Appendixes 1.Constitution of the United States, 1787 2.Justices of the U.S. Supreme Court 3.Failed Supreme Court Nominees 4.Longest Serving Supreme Court Justices 5.Judicial Ideology: Aggregate Voting of Supreme Court Justices in Civil Liberties Cases, 1946-2004 Bibliography About the Authors

Lyndon B. Johnson and the Fortas Nomination

Lyndon B. Johnson and the Fortas Nomination ROBERT DAVID JOHNSON In mid-September 1968, Joseph Kraft reflected on the lessons of Abe Fortas’s doomed bid to become Chief Justice. “The books are full of information about how power is used and accumulated in Wash­ ington,” the veteran reporter noted. “But there is now going on here something that is not much described or well understood—the crumbling of power.” Normally, the Senate would have comfortably confirmed Fortas, but instead the partisan interests of Senate Republicans had aligned with the ideological interests of diehard Southern segregationists. “The lesson of all this,” Kraft concluded, “is that the lack of power tends to corrupt as much as power.”1 The Fortas confirmation fight marked a transition away from what the legal scholar Jonathan Zasloff has termed the “informal institutions of American governance,” or “those habits and customs outside of formal, written law that make democracy work.”2 In the last half-century, customs that smoothed the way for Congress to operate from the New Deal through the Great Society—including the beliefthat opponents should not filibuster a Supreme Court nominee, or that judicial nominees would be evaluated on the basis of competence rather than ideology or partisan­ ship—have fallen by the wayside. As com­ mentator Jonathan Chait has argued, informal Senate traditions are just that—informal— and with congressional polarization, “such social norms will never hold up, [since] ultimately, the parties are going to maximize their partisan self-interest as allowed under the rules.”3 The literature on the Fortas nomination includes single-case narratives, comparative studies, biographies of the Justice, and surveys of the Johnson Presidency. These earlier studies share two source-based short­ comings. First, all but one predate the release of the Johnson Presidential tapes for 1968. This condition is all the more unfortunate as Fortas and Homer Thornberry, who was to replace him as Associate Justice, are among only six Supreme Court nominees, and the only unsuccessful choices, for which Presi­ dential recordings exist. Second, despite the 104 JOURNAL OF SUPREME COURT HISTORY Senate’s power to confirm Supreme Court nominees, previous publications on Fortas have utilized few Senate manuscript collec­ tions and in some cases none. As always occurs with congressional sources, the quality varies widely; some key players in the Fortas fight either left behind no papers for the relevant period or have closed collections. But for other important Senators, there is available material that, to date, no scholar on the Fortas confirmation has consulted. The list includes Fortas’s most prominent oppo­ nents, Robert Griffin (R-Michigan) and Strom Thurmond (R-South Carolina), but also lower-profile Judiciary Committee mem­ bers such as Hiram Fong (R-Hawai’i) and Quentin Burdick (D-North Dakota), who played important roles at stages of the confirmation process.4 On June 13, 1968, Chief Justice Earl Warren delivered a conditional resignation, to be effective when the Senate confirmed his successor. Though Warren justified the peculiar wording on grounds of the Court always needing a Chief Justice, it seemed as if he sought to ensure that, either way the confirmation vote turned out, a strong liberal would remain as Chief Justice. Johnson played the part by indicating that he would accept the resignation only when the Senate confirmed a successor.5 After the Court-packing fight of 1937, the Senate confirmed twenty-two consecutive Justices, fifteen by a voice vote.6 It thus was not unreasonable, as most Washington observers thought, to expect little resistance for Warren’s replacement.7 For three reasons, however, Johnson might have anticipated the difficulties any prospective nominee would face. First, in 1967, the nomination of Thurgood Marshall, against which eleven Senators ultimately voted, revealed signs of a different approach by some Senators to Supreme Court selections.8 Second, Warren’s resignation coincided with Congress’s con­ sidering crime and gun control bills—issues Vice President Johnson was sworn in as President aboard Air Force One in 1963 as Homer Thornberry, a Texas Congressman, looked directly at the camera. Two years later Johnson appointed Thornberry to the Fifth Circuit Court of Appeals, and in 1968 he nominated him to replace Abe Fortas on the...

Polarizing the Electoral Connection: Partisan Representation in Supreme Court Confirmation Politics

Do senators respond to the preferences of their state’s median voter or only to the preferences of their copartisans? We develop a method for estimating state-level public opinion broken down by partisanship so that scholars can distinguish between general and partisan responsiveness. We use this to study responsiveness in the context of Senate confirmation votes on Supreme Court nominees. We find that senators weight their partisan base far more heavily when casting such roll call votes. Indeed, when their state median voter and party median voter disagree, senators strongly favor the latter. This has significant implications for the study of legislative responsiveness and the role of public opinion in shaping the members of the nation’s highest court. The methodological approach we develop enables more nuanced analyses of public opinion and its effects, as well as more finely grained studies of legislative behavior and policy making.