One of the most important and potentially long-ranging decisions any President makes is choosing Supreme Court nominees. Influencing the makeup of the highest court in the land is one of the most enduring parts of any President's legacy, and political considerations weigh as heavily as a nominee's qualifications in considering and vetting potential candidates.

As confirmation hearings begin in July for Judge Sonia Sotomayor, President Obama's chosen nominee to replace retiring Associate Justice David Souter, materials from Miller Center programs offer great insight into how nominees are chosen, how Presidents have made their decisions about whom to pick, and how the nomination and confirmation process has worked.

RECENT ARTICLES BY SCHOLARS

Sotomayor Pick Historic, but Still a Roll of the Dice
ROWMAN & LITTLEFIELD BLOG, JUNE 3, 2009
Jeff Chidester, now Chair of the National Discussion and Debate Series and former research director in the Presidential Oral History Program, wrote about the risks that any President takes in making a Supreme Court pick for the Rowman & Littlefield Publishers blog. Despite careful vetting in the nomination process, he writes, it's still virtually impossible to know how a Justice will deliberate from the bench.

Chidester is co-author of At Reagan's Side: Insiders' Recollections from Sacramento to the White House (Rowman & Littlefield, 2009), with Stephen F. Knott, associate professor of National Security Studies at the United States Naval War College and former co-chair of the Presidential Oral History Project. The book is based on excerpts from interviews conducted for the Ronald Reagan Oral History Project.

PRESIDENTIAL RECORDINGS PROGRAM

President Johnson's Nomination of Abe Fortas to the Supreme Court, July 1965
AUDIO & TRANSCRIPTS
In mid-July 1965, Associate Justice Arthur Goldberg stepped down from the Supreme Court to take over as U.N. Ambassador. President Johnson wanted Abe Fortas, his longtime attorney and confidant, to be the replacement. Fortas demurred, but Johnson was not deterred. While he considered several other candidates, including a number of Republicans, Johnson did not stop pressuring Fortas and eventually got his man. MORE ...

Nixon and the Supreme Court: The Appointment of William H. Rehnquist
AUDIO & TRANSCRIPTS
Rehnquist was nominated by President Richard Nixon in late 1971 and sworn in January 7, 1972. The 47-year-old had a reputation for being an outspoken conservative, a reputation he lived up to while on the court. He rose to Chief Justice in 1986, nominated by President Reagan. Rehnquist had served in the Nixon administration as Assistant Attorney General from 1969 to 1971. MORE ...

PRESIDENTIAL ORAL HISTORY PROGRAM

The cleared transcripts of the Jimmy Carter Oral History Project and the Ronald Reagan Oral History Project provide a window into how those Presidents chose their Supreme Court nominees. Excerpts and links to full transcripts below.

Republican political consultant Stuart Spencer on President Ford's nomination of John Paul Stevens
REAGAN ORAL HISTORY PROJECT: MORE | FULL TRANSCRIPT [PDF]
The only time I was ever involved in a Supreme Court thing was with Ford. It's really funny, but it shows you what happens with Supreme Court appointments. They're probably the single most important thing that a President does, unless he starts a war or stops a war… .

[In 1976] I'm sitting in Washington running the Ford campaign. I get a phone call from Cardinal [Timothy] Manning. He says, "The bishops are meeting over here at the Hilton Hotel. We'd like to have you come over and have lunch with us… ."

I go over. The monsignors are sitting around the table with the damn lawyers and the bishops. We have drinks and we have lunch… . Finally they said, "The President has an appointment to the Supreme Court and we have an interest it." I said, "I'm sure you have an interest in it. What are you talking about?"

They started throwing stuff around. I said, "I'll tell you what. I'm not going to go to the President of the United States and tell him he's got to appoint so and so to the Supreme Court. I don't think it'll probably do you much good, but I'll suggest this to you. Why don't you give me a list of people that are acceptable to you… ." I walked out of there with a list of three names.

Every night when… we were in town, I would meet at six o'clock with the President and tell him what was going on. I walked in… and said, "I met with the bishops of the Catholic Church today. They have an interest in your appointment to the Supreme Court." He smiled. "I bet they do." I pulled out this list and said, "They gave me this list. These are people who are acceptable to them. I'm not going to lobby, I'm just going to give you the list." He says, "Thank you." He looks at the list, puts it in his drawer… .

Ten days later he appoints John Paul Stevens to the bench. He was on the list. To this day the Catholic bishops think I'm God. I have not disabused them of the idea that I didn't go over there and make it happen. Ford and I never discussed it, but I'm sure the politics of it went through his mind. [But] the irony of these appointments is this guy turned on him and everybody else.

When Reagan was Governor of California, he appointed a Chief Justice who looked like a safe bet. I was involved with that somewhat. He totally turned on him before he left in terms of rulings, in terms of what his ideology was and philosophy. I'm very cynical when I see this process. They're lawyers. They're judges. They're going to do what the hell they want to do. You don't know what you're getting. I just don't think any President really knows what he's getting until [the nominee] gets there and he serves… .That's a roll of the dice for a President. If they want to perpetuate their philosophy, they really have to do some vetting.

Carter congressional liaison Frank Moore on vetting judicial nominees
CARTER ORAL HISTORY PROJECT: MORE | FULL TRANSCRIPT [PDF] | WHITE HOUSE CONGRESSIONAL AFFAIRS SYMPOSIUM
I think there's another reason you can't get good people [appointed], even when a judicial nomination is non-controversial. The clearance process takes so long with the FBI [Federal Bureau of Investigation] and the IRS [Internal Revenue Service]… .I'm not an attorney… but I've had these guys tell me, "I want you take my name off your nominations list 'cause it's killing my law practice." I said, "Man, you're going to be a judge." "Yes, but the FBI's going around, talking to my elementary school teacher, and they're asking, 'What have you done?'" You tell [the prospective nominee], "You can't tell anybody you're going to be nominated. You can't tell anybody, because it's not done yet." And the FBI comes to town and starts asking around, and it ruins their law practice.

Reagan congressional liaison Max Friedersdorf on nominating Sandra Day O'Connor
REAGAN ORAL HISTORY PROJECT: MORE | FULL TRANSCRIPT [PDF]
Sandra Day O'Connor… was nominated on my birthday, July 7th 1981… .You know, it was a real slam-dunk from Day One. She was in the White House, came up to my office, and we took her around all the Senate offices, the very first day, as many as we could, and she stayed there two or three days. She got nothing but a warm reception every place we went. She was such a qualified candidate and such a lovely lady with tremendous experience and background, and the first woman on the Supreme Court. That was really historic. If they'd all been like that we'd not have had any trouble.

Reagan White House counsel Peter Wallison on the nominations of William Rehnquist to be chief justice and Antonin Scalia to be associate justice
REAGAN ORAL HISTORY PROJECT: MORE | FULL TRANSCRIPT [PDF]
[It] had been brought to the President's attention that [Warren] Burger was going to resign [as chief justice].… The President said, "I'd like to see [Associate Justice William] Rehnquist." So we arranged a meeting for Rehnquist to come in. That took a little doing, because you can't have Rehnquist coming to see the President – someone in the press would figure out that if Rehnquist was visiting the President some change was being considered at the Supreme Court. So we snuck Rehnquist in. There is a tunnel from the Treasury Department over to the White House. Tom Dawson [an aide to Donald Regan] knew about it and he snuck Rehnquist in through that way so the press never saw him.

He met with the President. It was a funny meeting, because Rehnquist is very reticent. I mean, he's as shy as anyone I've ever met in public life. He's just very awkward in these kinds of meetings. He looks at his shoes. He's really something. As happened very frequently in these meetings, someone else had to carry the conversation, so Regan did so. The President watched Rehnquist responding to some of Regan's remarks, these early conversations, and then told Rehnquist that Burger was leaving. But Rehnquist must have understood this, because otherwise he wouldn't be there. No one was going to offer him Secretary of State – he could only be there for one thing.

However, to our surprise, the President offered Rehnquist the job right then and there. I think I expected that he would listen to Rehnquist, Rehnquist would leave, we'd all talk about it, and then Reagan, in the usual way, would tell Regan to give Rehnquist a call and say the President would like him to take the Chief Justice-ship. I can't remember whether Rehnquist said he wanted to talk to his wife or whether he accepted on the spot. In any event, I think I assumed it was going to be Rehnquist for Chief. At that point, we had to find an Associate Justice.

In the course of our discussion with Reagan the first time we were talking about the candidates, before he invited Rehnquist in, we had talked about [Antonin] Scalia. Reagan had asked me whether Scalia was of Italian extraction. I think he used the word "extraction," and I said, "Yes, he's of Italian extraction." Reagan said, "That's the man I want to nominate, so I want to meet him." … We brought Scalia in. I don't remember how we got Scalia in, probably the same way that we used for Rehnquist. The President met Scalia and he offered Scalia the job right on the spot, in about 15 minutes, very little ceremony here. Scalia accepted on the spot. He was delighted. That was it… .

I think [Reagan] felt that it would be great to put an Italian-American on the Supreme Court. He had all the usual American instincts. We don't have an Italian-American on the Court, so we ought to have one. He really felt good about doing that. It wasn't principle so much as that kind of emotional commitment.

Wallison on the Senate hearings for Rehnquist and Bork
REAGAN ORAL HISTORY PROJECT: MORE | FULL TRANSCRIPT [PDF]
We went over and spoke to Rehnquist about the upcoming hearings. We didn't do what is called a "murder board," a mock questioning as in a Senate hearing – I don't know why it's called a murder board – for Rehnquist. Perhaps we felt that that would be too undignified for an Associate Justice of the Supreme Court.

But I did go to talk to him. At the time, once again in his career, a whole series of issues were likely to arise surrounding a memo he had written when he was been a Supreme Court clerk, having to do with Plessy v. Ferguson, on the one hand, and Brown v. Board of Education, on the other. He had argued that Plessy was correctly decided, which is not the best position to be in. This was obviously going to come up in his nomination again, as it did in his Associate Justice nomination. I warned him about this and he clearly understood. And I said, "Well, what are you going to say in that situation?" He started making what was probably the legal argument that he had made in the memo that he wrote on Plessy v. Ferguson, a very dry legal analysis of this issue, but ending with a conclusion that he now accepted Brown as the law of the land.

I said, "This is not going to work, because the people who are going to be hearing you aren't lawyers and they're not going to be persuaded by that." I was referring to the American public. "The thing to keep in mind about Brown v. Board of Education," I said, "is that it's got some moral content to it – moral and emotional content. If you're saying now that you accept Brown v. Board of Education, irrespective of your analysis in Plessy, that's no big deal." This was basically what I was saying to him. "Everybody accepts it as the law of the land. You have got to make clear that you think it is morally right. It is not just the law of the land. It is not just something that you believe is sanctioned by the Constitution. You've got to say this is a morally correct position. That's what will get you over this problem. Up to now, you have not been willing to say this. You've answered this as a lawyer, and that's not how people think about this decision, especially the people who are most interested in it."

That was really the thing we talked about most. I was happy to see that when he got into the hearings, although he didn't quite say he thought it was morally right, he invested some real emotion in it, saying how wonderful this had been for the country and its citizens, and things like that. He accepted the point I'd made. I think then the issue went away. There were lots of other problems at his hearing, but this whole business with Plessy v. Ferguson, and Brown v. Board of Education was not a major factor. So, that was my involvement in the process of preparing the Justices… .

I was out of the administration… when Bork came up. The problem with Bork is he didn't want a murder board. I'm afraid he didn't think that anyone could tell him anything about how to answer these questions. That's just so typical of so many people in Washington. He felt that he'd been around enough so he knew how to answer the questions. Yet when the privacy question came up, he talked about it in terms of the legal issues. That's not how people think about privacy. People think about privacy as relating to their bedrooms – that's privacy. They don't care about all this other stuff. That's what they think about. And he was unable to say that he believed that people had that kind of privacy.

It's not in the Constitution. Now, he could have used the Fourth Amendment and search and seizure, and all kinds of things like that. He could have said all sorts of things that would have suggested yes, there is a zone of privacy that every citizen is entitled to. But he couldn't get himself to say that. He was talking in lawyers' terms about it and that did him in. People looked at this guy and said, "He doesn't understand the first thing about what I'm thinking, and he never will." I think that's why Bork ultimately lost.

Former Senator Howard Baker, Reagan's final White House chief of staff, on the Bork nomination
REAGAN ORAL HISTORY PROJECT: MORE | FULL TRANSCRIPT [PDF]
The selection process [for Supreme Court vacancies] was well established. The Justice Department had first responsibility for generating a list and then the White House and other agencies and departments would go over that list and vet it and establish his qualifications and the challenges, the opportunities, and the dangers. Then it usually was whittled down to three names. The President was involved in this as we went along, but when it went to three names it was purely the President's decision. He made the decision. A lot of people had a lot of input, especially the Attorney General and White House Counsel… .But Bork was the President's choice. It would serve no good purpose for me to say he was not my first choice – I was not President. President Reagan wanted Bork, chose Bork, and nominated Bork.

It's unfortunate that Bork was not confirmed. He's not only a qualified jurist, but he's intellectually agile and a very talented legal scholar. For a lot of reasons, the nomination didn't set well with a lot of people… .Bork himself was the issue… But the President had high confidence that he could move anything, whether it was a vote on an issue or a nomination or a treaty, or that he could convince a foreign leader or domestic leader of a particular point. He was supremely confident. He took account of the fact that there were big storm warnings about Bork ahead of time but it was very Reagan-like to say, "I want to do it anyway," and he did. I don't recall that he ever had any regrets. He regretted that Bork lost, but it was not a devastating loss to him. I'm sure it was to Judge Bork. Reagan just picked up and went on.

George H.W. Bush's congressional liaison Fred McClure, on how the legislative affairs shop approaches judicial nominations
WHITE HOUSE CONGRESSIONAL AFFAIRS SYMPOSIUM: AUDIO/VIDEO
Pray that the Court lives!… When I was special assistant, [William] Rehnquist was promoted to chief justice, and I ended up getting [Antonin] Scalia, which was probably one of the easiest confirmations in the modern history of confirmations. I don't think he answered any question that was ever asked of him during the entire process. So he set one standard, which is the Scalia standard, and in future Supreme Court nominations, members of the Senate would say, "Well, we're not going to let him get away with what Scalia got away with." …

[Still], you just pray that they all live forever and never retire, because [a Supreme Court nomination] can consume a lot of time and divert attention from the President's agenda. Alternatively, it creates an opportunity for members of Congress to promote their agenda in the context of a judicial nomination, which is exactly what we see today.

PRESIDENTIAL SPEECHES

Fireside Chat 9: On "Court Packing"
MARCH 9, 1937
Responding to criticism about his proposal to restructure the Supreme Court, President Franklin Delano Roosevelt criticizes conservative judges who blocked important New Deal programs and advocates a restructuring of the judiciary. Ultimately, the President's plan deteriorates, but Roosevelt was eventually able to reshape the court by appointing eight justices before his death in 1945. MORE ...

POLICY PROGRAMS

The National Commission on the Selection of Federal Judges
1996
The Commission examined how Presidents nominate and the Senate confirms federal judges, and offered recommendations for streamlining the confirmation process.

FULL TEXT: Commission Report [PDF]

Co-Chairs:

• Nicholas deB. Katzenbach, U.S. Attorney General, 1965–66; Chairman, MCI, Inc.
• Harold R. Tyler, Jr., Assistant Attorney General, 1956–60; Deputy Attorney General, 1975–77; Partner, Patterson Belknap Webb & Tyler

Commissioners:

• Howard H. Baker, Jr., White House Chief of Staff, 1987–88; U.S. Senator (R-Tenn.), 1967–85; Majority Leader, U.S. Senate, 1981–85; U.S. Ambassador to Japan; Senior Advisor, Citigroup
• Birch E. Bayh, Jr., U.S. Senator (D-Ind.), 1963–81; Partner, Venable
• Lovida H. Coleman, Jr., Special Assistant to the Attorney General, 1977–80; Partner, Sutherland Asbill & Brennan, LLP
• Lloyd N. Cutler, White House Counsel, 1977–81, 1994; Partner, Wilmer Cutler & Pickering
• Fred F. Fielding, White House Counsel, 1981–86, 2006–present; Commissioner, National Commission on Terrorist Attacks upon the United States; Partner, Wiley, Rein & Fielding
• Leon A. Higginbotham, Jr., Judge, U.S. Court of Appeals for the Third Circuit, 1977–93; Of Counsel, Paul, Weiss, Rifkind, Wharton & Garrison
• Frederick B. Lacey, United States District Judge, 1971–86; Special Counsel, LeBoeuf, Lamb, Greene & McRae
• Daniel J. Meador, Assistant Attorney General, 1977–79; James Monroe Professor of Law, Emeritus, University of Virginia School of Law
• Kimba M. Wood, Judge, U.S. District Court for the Southern District of New York, 1987–present; Chief Judge, Southern District, 2006

Commission Director:

• Kenneth W. Thompson, Director of the Miller Center, 1978–98

FORUMS

The Forum Program has hosted speakers discussing various aspects of the court and the legal system.

The Nine: Inside the Secret World of the Supreme Court
APRIL 18, 2008
Jeffrey Toobin, a staff writer at The New Yorker since 1993 and CNN's senior legal analyst, is one of the most recognized and admired legal journalists in the country. He discussed his latest book, The Nine: Inside the Secret World of the Supreme Court (Doubleday, 2007). MORE ...

Why Are We Still Fighting Over Civil Rights? The Jena 6 and Other Problems of the Modern Era
NOV. 12, 2007
Angela Ciccolo, interim general counsel of the National Association for the Advancement of Colored People, has specialized in civil litigation in Washington, D.C. A member of the bar of the United States Supreme Court, she has served on the Board of Governors for the D.C. Trial Lawyers Association. MORE ...

The Lost Promise of Civil Rights
SEPT. 17, 2007
Risa Goluboff, Associate Professor of law at the University of Virginia, has published a new history of the civil rights movement in the 1940s. Her book, hailed by reviewers as "brilliant" and placing her "at the front rank of twentieth-century American historians," shows how movement activists focused on redressing prejudice faced by agricultural and industrial workers before desegregating public secondary and elementary schools. MORE ...

Supreme Court Report
MARCH 3, 2006
Jan Crawford Greenburg, who covers the Supreme Court for ABC News (formerly for the Chicago Tribune The NewsHour with Jim Lehrer), discussed appointments to the Court, the decisions handed down during the 2006–07 term, and issues pending before the Court. MORE ...

The Legacy of Sandra Day O'Connor and the Future of the Supreme Court
NOV. 18, 2005
USA Today reporter and Washington Week commentator Joan Biskupic, author of Sandra Day O'Connor: How the First Woman on the Supreme Court Became Its Most Influential Justice (Ecco, 2005), joins Fourth Circuit Court of Appeals Judge J. Harvie Wilkinson to discuss evaluating O'Connor's legacy. MORE ...

GOVERNING AMERICA IN A GLOBAL ERA (GAGE) PROGRAM

Several Miller Center Fellows have examined the judiciary and the American legal system in their dissertation work.

The Not-So-Great Writ: Habeas Corpus & American Political Development
2004 MILLER CENTER FELLOW JUSTIN WERT
Justin Wert, now an assistant professor in the University of Oklahoma's Department of Political Science, analyzed the institutional development of Habeas Corpus law in four time periods: ante-bellum slave law; Reconstruction; the 20th century debates over the applicability ("Incorporation") of the Bill of Rights to the states; and habeas corpus during war, particularly the current prosecution of the "War on Terror." MORE ...

Postwar Liberalism and the Origins of Brown v. Board of Education
2003 MILLER CENTER FELLOW CHRISTOPHER SCHMIDT
Christopher Schmidt, now a visiting scholar at the American Bar Foundation, traced the genesis of the 20th century American Civil Rights movement in his dissertation, analyzing the origins of Brown v. Board of Education to explain the dramatic policy shift between the 1940s and 1950s. MORE ...

Judges, Lawyers, and Experts: Law vs. Politics in Missouri vs. Jenkins
2000 MILLER CENTER FELLOW JOSHUA DUNN
Joshua Dunn, now Assistant Professor of Political Science at the University of Colorado, Colorado Springs, teaches courses on constitutional law and political theory. His research focuses on constitutional history and judicial policymaking. MORE ...

The GAGE Colloquia Series has also addressed topics on the judiciary.

Political Foundations of Judicial Supremacy
NOV. 13, 2008
Keith Whittington, the William Nelson Cromwell Professor of Politics at Princeton University and director of graduate studies in the Department of Politics, is the author of Constitutional Construction: Divided Powers and Constitutional Meaning, and Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review, and Political Foundations of Judicial Supremacy: The Presidency, the Supreme Court, and Constitutional Leadership in U.S. History. MORE ...