96 Pages Posted: 21 Apr 2011
Presidents play the critical role in determining who will serve as justices on the Supreme Court and their decisions inevitably influence constitutional doctrine and judicial behavior long after their terms have ended. Notwithstanding the impact of these selections, scholars have focused relatively little attention on how presidents decide who to nominate. This article contributes to the literature in the area by advancing three arguments. First, it adopts an intermediate course between the works which tend to treat the subject historically without identifying recurring patterns and those which try to reduce the process to empirical formulas which inevitably obscure considerations shaping decision. The article argues that a more analytically useful approach views the selection as turning upon the interaction of three variables - pool, context and presidential idiosyncrasy - each of which consists of a variety of other factors. This article examines Supreme Court nominations since 1900 to develop these points. Use of that period illustrates the taxonomy described above yet it also exposes the dynamic nature of the process which leads to the article’s second mission. It explains how larger changes in other governmental institutions and in society have transformed the process by which presidents choose Court nominees. Those changes occurred independent of any formal constitutional amendment, thereby offering a case study in how constitutional institutions evolve in response to informal developments. Finally, the article argues that the changes in the process have increased the likelihood that presidents will nominate competent justices but lessens the prospects that they will choose potentially great jurists.
Keywords: Courts, History, Supreme Court, Justices, President
Suggested Citation: Suggested Citation
Goldstein, Joel K., Choosing Justices: How Presidents Decide. Journal of Law and Politics, Forthcoming; Saint Louis U. Legal Studies Research Paper No. 2011-09. Available at SSRN: https://ssrn.com/abstract=1810728 or http://dx.doi.org/10.2139/ssrn.1810728