Why Obama Should Pick an Appellate Court Justice to Replace Stevens

With the announcement that Justice Stevens is stepping down from the Supreme Court at the end of the current court session, President Obama has a second opportunity to fill a Court vacancy. When his first opportunity arose last year, I did two things:  first, I offered an “It’s the Fundamentals, Stupid” t-shirt to anyone who could predict the likely nominee.  That contest was won by Conor Shaw who, appropriately enough, is now attending law school at the University of Chicago.  I also argued, in this post, that if Obama really stood for change, he should nominate a politician, as opposed to an appellate court judge, to the Supreme Court.   Predictably, the “change” candidate ignored my advice and instead nominated yet another appellate court judge, Sonya Sotomayor, who was easily confirmed to the Court by the Democrat-controlled Senate.

As I noted then, Sotomayor’s selection and confirmation made it 17 of the last 20 nominees (by my unofficial count), dating back to Nixon’s administration, who were sitting federal appellate judges prior to being nominated to join the Supreme Court.  Here’s the chart I presented then – note that I didn’t include the aborted Harriet Miers nomination (she voluntarily withdrew before the Senate took up her nomination).  Bold-faced type indicates the nominee was a politician:

Nominee Year Appointing President Position Held
Hugo Black 1937 Roosevelt U.S. senator
Stanley Reed 1938 Roosevelt U.S. solicitor general
Felix Frankfurter 1939 Roosevelt Law professor
William 0. Douglas 1939 Roosevelt SEC chairman
Frank Murphy 1940 Roosevelt U.S. attorney general
James Byrnes 1941 Roosevelt U.S. senator
Harlan Stone (C.J.) 1941 Roosevelt U.S. Supreme Court associate justice
Robert Jackson 1941 Roosevelt U.S. attorney general
Wiley Rutledge 1943 Roosevelt Federal appellate judge
Harold Burton 1945 Truman U.S. senator
Fred Vinson (C.I.) 1946 Truman U.S. Treasury Secretary
Tom C. Clark 1949 Truman U.S. attorney general
Sherman Minton 1949 Truman Federal appellate judge
Earl Warren (C.I.) 1953 Eisenhower Governor of California
John M. Harlan 1954 Eisenhower Federal appellate judge
William Brennan 1956 Eisenhower N.J. S. C. Judge
Charles Whittaker 1957 Eisenhower Federal appellate judge
Potter Stewart 1958 Eisenhower Federal appellate judge
Byron White 1962 Kennedy Deputy attorney general
Arthur Goldberg 1962 Kennedy U.S. secretary of labor
Abe Fortas 1965 Johnson Private practice, presidential adviser
Thurgood Marshall 1967 Johnson U.S. solicitor general
Abe Fortas (C.J., withdrew) 1968 Johnson U.S. Supreme Court Associate Justice
Homer Thornberry (withdrew) 1968 Johnson Federal appellate judge
Warren Burger (C.J.) 1969 Nixon Federal appellate judge
Clement Haynsworth (rejected) 1969 Nixon Federal appellate judge
G. Harrold Carswell (rejected) 1970 Nixon Federal appellate judge
Harry Blackmun 1970 Nixon Federal appellate judge
Lewis Powell 1971 Nixon Private practice
William Rehnquist 1971 Nixon Asst. attorney general
John Paul Stevens 1975 Ford Federal appellate judge
Sandra Day O’Connor 1981 Reagan Arizona appellate judge
William Rehnquist (C.J.) 1986 Reagan U.S. Supreme Court associate justice
Antonin Scalia 1986 Reagan Federal appellate judge
Robert Bork (rejected) 1987 Reagan Federal appellate judge
Douglas Ginsburg (withdrew) 1987 Reagan Federal appellate judge
Anthony Kennedy 1987 Reagan Federal appellate judge
David Souter 1990 Bush I Federal appellate judge
Clarence Thomas 1991 Bush I Federal appellate judge
Ruth Bader Ginsburg 1993 Clinton Federal appellate judge
Stephen Breyer 1994 Clinton Federal appellate judge
John Roberts (C.J.) 2005 Bush II Federal appellate judge
Samuel Alito 2006 Bush II Federal appellate judge
Sonia Sotomayor 2009 Obama Federal appellate judge

The key point is that presidents at one time used to select politicians to the Court, but since Nixon’s administration that almost never happens.

As the punditocracy debates the merits of those candidates who are apparently on the current short list, including their sexual orientation, I am tempted to simply rerun my previous post in favor of nominating a politician, rather than still another sitting appellate court judge.  Of those individuals apparently on the current “short list” only Janet Napolitano fits my criteria.  (Yes, yes, I hear you: what about Hillary Clinton?  Don’t you realize she’s challenging Obama in 2012?)

Boiled down to the essentials, my argument is simple:  the Court is, in essence, a political institution.  Justices make arguments that, although based on legal reasoning and embedded within the body of law, are nonetheless at heart debates about political values and that for better or for worse, those rulings tend to track public opinion relatively closely.  The best justices, therefore, are those who are skilled at political reasoning, persuasion and coalition building.  Put another way, we’d rather have a court composed of Sandra Day O’Connors than of Antonin Scalia’s – not because O’Connor has a superior legal mind, but because her opinions tended to exhibit a very pragmatic orientation and were written with an eye toward bridging differences among the Justices.

I’m not the only one to make this argument, of course.  See, for example, this recent Boston Globe editorial.  Rather than make the same point again in the context of the current Court opening, however, I thought it might be more useful if I provided an opposing argument in favor of appointing still another appellate court judge.  (After all, I’m always saying that what sets this political blog apart is my willingness to entertain opposing viewpoints!) Toward that end, see this recent opinion column by Charles Lane on the Washington Post website.  Lane acknowledges that the Court is a political institution. But he notes that justices don’t merely pay lip service to legal precedent – by referencing previous cases and legal doctrine when issuing decisions, justices bolster the Court’s legitimacy as an “impartial” actor whose decisions do not flow strictly from the personal views of its nine members.  I think this is an important point: whenever the Court does venture into the purely political thicket, its members’ motives are already questioned (think Bush v. Gore).  Imagine if a Court of nine politicians overturned the individual mandates contained in the recently-passed health care bill – all hell would break loose.  But that is precisely my point – I can see Scalia, in a strict reading of the law, arguing against the mandates.  In contrast, a politician as justice would be less likely, I think, to jump into this political fray and instead would either decide not to take the case or would defer to the decision of Congress and the President and accept that mandates are constitutional.

Lane also makes two additional points to explain recent presidents’ tendency to nominate appellate court justices that have little to do with their legal background or expertise.  The first is the supply-side to the nomination equation: there are 167 justices sitting on the appellate courts today, compared to only 59 at the end of World War II.  So there is simply more legal talent out there from which to choose nominees.  Second (and this is Napolitano’s problem), in the post-Bork politicized confirmation era, it is simply much more difficult to confirm a politician because they possess an extensive paper trail that can be used against them.  In Lane’s words, “Politicians who, by definition, talk, write and cast votes on just about any issue under the sun are especially vulnerable.”  O’Connor, although a former state legislator, benefited by the historic nature of her selection by Reagan to be the first woman justice on the Court.   To be sure, appellate court justices have a voting record as well, but they can defend that record, Lane notes, by saying their rulings reflect the constraints imposed by adhering to statute or previous court decisions.  This, by the way, may be what undermines Elena Kagan’s chances; although supposedly the current front-runner for the nomination, she may be handicapped by some of her decisions on legal cases while serving as Obama’s Solicitor General.

There is an additional factor at play here: Obama’s pragmatic streak. For all the talk about bringing change to Washington, he has been a remarkably conventional decisionmaker in terms of adhering to precedent and pursuing, whenever possible, a middle course of action. It may be expecting too much to believe he will break the string of 11 straight appellate court nominees. If he does, it will likely be because another pragmatic political factor, such as a desire to nominate an African-American woman, for example, trumps his inclination to play it safe by selecting an appellate court judge.  In the end I expect him to pick the most liberal woman he can get through the Senate – that is, one who does not provoke a Republican filibuster.  Who might that be?  I’m open to suggestions.


  1. I agree that the court reads election returns. I don’t expect any serious court action on health care until after the 2010 elections.
    On the other hand, if the court decides to “defer to the decision of Congress and the President and accept that mandates are constitutional” what point is there to a constitution which doesn’t limit the Federal Government in any way?
    By the way, Thomas Sowell wrote a blistering column about Justice Steven’s opinion in Kelo on precisely the deference issue. Why have any limits in the Constitution on the power of elected officials if the courts constantly defer to them on whether or not they have exceeded the limits?
    See http://jewishworldreview.com/cols/sowell041310.php3

  2. Dale – The issue, I think, is whether the Court “constantly” defers to elected representatives, or does so only in areas involving so-called “political” issues, or where there is a reasonable amount of latitude in interpreting whether legislation is constitutional or not. By political issues, I mean those issues best resolved through debate by the two elected branches. Of course, that’s a rather broad category. I don’t pretend to be a legal scholar (nor do I even play one in the movies) so I can’t say whether mandates are constitutional or not, nor whether they fall in this area. My read of the legal debate suggests that there is a broad range of opinions on this issue. I just don’t see the court wading into such a legal thicket that has such huge implications for the President’s political fortunes. Whether they should wade in, as you suggest, is perhaps a different question.

    But I’m open to opposing viewpoints on this one.

  3. Matthew,
    I agree. Let’s leave Constitutional Law aside, sort of, and focus on Presidential Power. Truman spoke of the Presidency as a constant effort of persuading people to do “what they should do.”
    Now, Presidents have vast unilateral authority particularly on issues of National Parks and the environment. Clinton was accused of putting aside land for national parks only in states which had opposed him politically. Bush helped people who supported him by working to open more land for extraction of oil and other resources.
    Obama put a hold on some of Bush’s decisions and now claims to be “opening” areas in 2012 that Bush would have opened in 2010. Also, the Chrysler takeover was a case where bondholders were shortchanged at the expense of Obama’s allies and the courts did nothing.
    What is the difference between Presidential Power and the power of an autocrat or a monarch? Has the difference already disappeared or are there restraints which exist or need to be strengthened to prevent the President’s becoming an autocrat?

  4. Diane Wood


    She fits MD’s characterization of justice-as-politician nicely: she has a clearly left track record (and I emphasize “clear” – where does Elana Kagan sit on anything?), yet she has a widely respected reputation for being able to bridge political differences with right-leaning justices. She’s a great persuader, in other words. And despite her political leanings, respectable Serious People of All Political Stripes hold her in high regard. I think she’d be a good choice.

  5. I’m going to jump on the Diane Wood bandwagon and guess that she’ll pull through as the next nominee. And it’s not just because I’m drinking the UChicago kool-aid (Certainly not after I missed out and wasn’t among those chosen to be in her first-year Civil Procedure class. Doh!)

    At 59, she’s not as young as Roberts, but it’s hard to find qualified candidates who are significantly younger than that. If nominated, she’d be difficult to oppose given that she has a number of esteemed conservative colleagues (among them Judges Posner and Easterbrook) who would support her nomination wholeheartedly. She also has experience in anti-trust and business law, two areas that may be of increased importance in the near future.

    Kagan seems like Wood’s most formidable competition, but for many reasons, including those mentioned by Professor Dickinson, she’s less of a safe choice. No record, another “Northeastern liberal,” and little experience in the courtroom – until recently. She would benefit from a legacy of bringing conservatives and liberals together again at Harvard, but the H-word may also be a liability if Obama wants to have a little geographic diversity on the court.

    Speaking of which, if identity politics trumps again, Judge Ann Williams (like Wood, also on the 7th circuit) could be surprise pick. She would be the first African-American woman on the court and has some of the same attributes that make Wood a desirable choice, but it’s possible that she’s just on the “short list” to make one of Obama’s safest voting blocks happy.

    With the elections coming up in November, this nomination may be Obama’s last chance to appoint a solid liberal to the bench (think Cass Sunstein), but all signs seem to indicate that he’s not looking for that kind of a fight. Perhaps passing financial reform and making some headway on climate change are the issues he considers truly important. Why let a nomination battle get in the way?

Leave a Reply

Your email address will not be published. Required fields are marked *