Navigating the Path of the Supreme Appointment

60 Pages Posted: 22 Jul 2011

Date Written: July 20, 2011


Nominees to the Supreme Court historically boasted political backgrounds as congressmen, governors, cabinet members, presidential advisors, and even a former president. But over the last four decades, the successful nominees all were sitting judges or held posts with a close institutional relationship to the Supreme Court. Scholars have described this new norm, but have had difficulty explaining the cause for the shift. This article provides that explanation.

The answer lies in the steady expansion of public participation in the confirmation process and the public's present conception of the judicial role. Confirmation during the eighteenth and nineteenth centuries was a partisan political affair, with little opportunity for public input. But after the Seventeenth Amendment made senators accountable to citizens, the Senate began to open the process to public scrutiny and debate. As a result, the public became an important institutional actor in the confirmation process, with senators ignoring constituent opinion at their peril.

As the Supreme Court's decisions in the mid-twentieth century impacted daily life and resolved social identity issues more frequently, public involvement expanded. While the public has minimal familiarity with the outcomes of the judicial process, there is a shared conception of the background experience and qualifications necessary to ensure that the judicial craft is distinct from the ugly game of politics. This ideal views jurists as fair, open-minded, impartial, and nonpartisan decisionmakers owing allegiance to the Constitution and the rule of law, not their own personal values or political or jurisprudential beliefs. Appropriate background experience in judging or similar decisionmaking aids the public legitimacy of both the nominee and the role of the Court in interpreting the Constitution. This conclusion is confirmed by both public opinion surveys and case studies of the Kagan, Sotomayor, Alito, Miers, Roberts, Breyer, Ginsburg, Thomas, and Bork nominations.

Keywords: Supreme Court Justices, Confirmation, Appointment, Judicial Review, Legitimacy

JEL Classification: K00

Suggested Citation

Rhodes, Charles W. (Rocky), Navigating the Path of the Supreme Appointment (July 20, 2011). Florida State University Law Review, Vol. 38, No. 3, 2011, Available at SSRN:

Charles W. (Rocky) Rhodes (Contact Author)

South Texas College of Law ( email )

1303 San Jacinto Street
Houston, TX 77002
United States
713-646-2918 (Phone)

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