The Changing Nature of Judicial Appointments

By Scott Lemieux

Given the age and health of Justices Stevens and Ginsburg, there is a very strong possibility that President Obama will nominate two more Supreme Court justices.  (Or, given the changes in the political climate, perhaps one should say that he will nominate as many justices as are necessary to fill two slots.)   This returns us to the question of what kind of justices Obama is likely to nominate.   Another way to examine the question is through the typology put forward by the political scientist Sheldon Goldman.    Goldman points out that presidents have three different major agendas when they make Supreme Court nominations:

• Policy.  Presidents usually want to advance certain substantive policy, legal, and constitutional ends.   While even justices who presidents are strongly confident share their basic orietnation may not agree with every substantive outcome a president may desire, but justices selected on ideological grounds (contrary to what you hear from some pundits) tend to be quite predictable.
• Partisan.   As with cabinet appointments, presidents use Supreme Court appointments symbolically, to signal support to important constituencies.    Part of the reason some observers assert that Supreme Court justices can be highly unpredictable is that they forget that some appointments are made primarily to advance partisan rather than policy agendas.   Eisenhower's appointment of William Brennan to appeal to Roman Catholic voters and Reagan's appointment of Sandra Day O'Connor to fulfill a campaign promise made to women are important examples of a president priveleging partisan goals over policy goals.
• Personal.   In some cases, presidents will use judicial appointments to reward friends and political allies.   Most of Truman's appointments fall into this category, as do JFK's appointment of Byron White and Lyndon Johnson's appointment of Abe Fortas.    

These agendas are not, of course, mutually exclusive.   Presidents can be fairly confident that personal allies will support them on the issues most important to their appointer, although they may (White being the classic example here) be less reliable on other issues important to a President's constiuencies.    A shrewd political pick can allow the president more leeway in terms of ideology.

Recent presidents -- and Obama seems likely to follow this trend in general -- seem to have largely abdandoned the third category.    Obama's nomination of Sonia Stotomayor was a good example of a contempoary nomination in that it attempted to advance both partisan and policy agendas at the same time: appeal to two increasingly important Democratic constituencies with a historic appointment, while also advancing important policy goals.   

In future appointments, of course, Obama may have to make tradeoffs between various goals.   Particularly in light of an increasingly recacitrant Senate, it will be interesting see if he attempts to put forward a clear liberal candidate at the risk of a fight, or if he chooses a more moderate candidate in the hope of better serving other partisan interests.  

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