Supreme Court Justice Selection Criteria

No Constitutional Qualifications for Justices

Supreme Court building
Supreme Court building. Getty Images

Who selects United States Supreme Court justices and by what criteria are their qualifications evaluated? The President of the United States nominates prospective justices, who must be confirmed by the U.S. Senate before being seated on the court. The Constitution lists no official qualifications for becoming a Supreme Court justice. While presidents typically nominate people who generally share their own political and ideological views, the justices’ are in no way obligated to reflect the president’s views in their decisions on cases brought before the court.

  1. The president nominates an individual to the Supreme Court when an opening occurs.
    • Typically, the president picks someone from their own party.
    • The president usually picks someone who agrees with their judicial philosophy of either judicial restraint or judicial activism.
    • The president might also choose someone of a varied background in order to bring a greater degree of balance to the court.
  2. The Senate confirms the presidential appointment with a majority vote.
    • While it is not a requirement, the nominee typically testifies before the Senate Judiciary Committee before being confirmed by the full Senate.
    • Rarely is a Supreme Court nominee forced to withdraw. Currently, of the more than 150 people nominated to the Supreme Court, only 30 — including one who was nominated for promotion to Chief Justice — have either declined their own nomination, been rejected by the Senate, or had their nomination withdrawn by the president. The latest nominee to be rejected by the Senate was Harriet Miers in 2005.

    The President's Selections

    Filling vacancies on the Supreme Court of the United States (often abbreviated as SCOTUS) is one of the more significant actions a president can take. The U.S. president's successful nominees will sit on the U.S. Supreme Court for years and sometimes decades after the president's retirement from political office.

    Compared to the appointments the president makes to his (or her—currently all U.S. presidents have been male although that surely will change in the future) Cabinet positions, the president has a great deal of latitude in selecting justices. Most presidents have valued a reputation for selecting quality judges, and typically the president reserves the final selection for himself rather than delegating it to his subordinates or political allies.

    Perceived Motivations

    Several legal scholars and political scientists have studied the selection process in depth, and find that each president makes his choices based a set of criteria. In 1980, William E. Hulbary and Thomas G. Walker looked at the motivations behind presidential nominees to the Supreme Court between 1879 and 1967. They found that the most common criteria used by the presidents to select Supreme Court nominees fell into three categories: traditional, political, and professional.

    Traditional Criteria

    • acceptable political philosophy (according to Hulbary and Walker, 93% of the presidential nominees between 1789–1967 were based on this criterion)
    • geographical balance (70%)
    • the "right age"—appointees in their mid-50s, old enough to have proven records and yet young enough to serve a decade or more on the court (15%)
    • religious representation (15%)

    Political Criteria

    • members of his own political party (90%)
    • placate certain political interests or improve the political climate for the president's policies or personal political fortune (17%)
    • political payoffs for groups or individuals who have been crucial to the president's career (25%)
    • cronyism, people with whom the president has a close political or personal relationship (33%)

    Professional Qualifications Criteria

    • individuals with distinguished credentials as practitioners or scholars of law (66%)
    • superior records of public service (60%)
    • prior judicial experience (50%)

    Later scholarly research has necessarily added gender and ethnicity to the balance choices, and the political philosophy today often hinges on how the nominee feels about the Constitution. But the main categories are still clearly in evidence.

    Kahn, for example, categorizes the criteria into Representational (race, gender, political party, religion, geography); Doctrinal (selection based on someone who matches the political views of the president); and Professional (intelligence, experience, temperament).

    Rejecting the Traditional Criteria

    Interestingly, the best performing justices—based on Blaustein and Mersky, the seminal 1972 ranking of Supreme Court justices—were those that were chosen by a president who did not share the nominee's philosophical persuasion. For example, James Madison appointed Joseph Story and Herbert Hoover selected Benjamin Cardozo.

    Rejecting other traditional requirements also resulted in some great choices: justices Marshall, Harlan, Hughes, Brandeis, Stone, Cardozo, and Frankfurter were all chosen despite the fact that people on the SCOTUS were already in those regions. Justices Bushrod Washington, Joseph Story, John Campbell, and William Douglas were too young, and L.Q.C. Lamar was too old to fit the "right age" criteria. Herbert Hoover appointed the Jewish Cardozo despite there already being a Jewish member of the court—Brandeis; and Truman replaced the vacant Catholic position with the Protestant Tom Clark.

    The Scalia Complication

    The death of long-time Associate Justice Antonin Scalia in February 2016 set off a chain of events that would leave the Supreme Court facing the complicated situation of tied votes for over a year.

    In March 2016, the month after Scalia’s death, President Barack Obama nominated D.C.

    Circuit Judge Merrick Garland to replace him. The Republican-controlled Senate, however, argued that Scalia’s replacement should be appointed by the next president to be elected in November 2016. Controlling the committee system calendar, Senate Republicans succeeded in preventing hearings on Garland’s nomination from being scheduled. As a result, Garland’s nomination remained before the Senate longer than any other Supreme Court nomination, expiring with the end of the 114th Congress and President Obama’s final term in January 2017.

    On January 31, 2017, President Donald Trump nominated federal appeals court Judge Neil Gorsuch to replace Scalia. After being confirmed by a Senate vote of 54 to 45, Justice Gorsuch was sworn in on April 10, 2017. In total, Scalia’s seat remained vacant for 422 days, making it the second longest Supreme Court vacancy since the end of the Civil War.

    Updated by Robert Longley

    Sources