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Planting the Seed. Choosing High Court Judges

Sandra Day O’Connor announced her plan to retire as a US Supreme Court justice in July 2005. She had served since 1981 when President Ronald Reagan appointed her. She was the first female appointed to the Court and was widely viewed as a moderate by the end of her time on the bench.1 In the united States a candidate is nominated by the president but can only be appointed with the “advice and consent” of the Senate.2 Choosing O’Connor’s successor fell to President George W. Bush, and he turned to Harriet Miers, White House counsel with whom he had a long-time close relationship. She had been his personal lawyer, and he had appointed her to a range of positions over the years as governor and then president.3

The nomination drew immediate criticism from both conservatives and liberals. Many Republicans felt she was not conservative enough.4 Others

  • 1. Julian Borger, “Bush Offers Crucial Supreme Court Seat to His Former Lawyer,” The Guardian (October 4, 2005), online: www.theguardian.com/world/2005/oct/04/usa.topstories3 [“Bush Offers Crucial”]; “Bush Picks White House Counsel for Supreme Court,” CNN.com (October 4, 2005), online: http://www.cnn.com/2005/POLITICS/10/03/scotus.miers/ [“Bush Picks White House”].
  • 2. Denis Steven Rutkus, ed, Supreme Court Appointment Process: Roles of the President, Judiciary Committee, and Senate (New York: Nova Science, 2005) (Congressional Research Service) [“Appointment Process”] at 2.
  • 3. “Who Is Harriet Miers,” ABC News (October 27, 2005), online: abcnews.go.com/Politics/ SupremeCourt/story?id=1170572.
  • 4. Borger,“BushOffersCrucial”,supranote1;CharlesBabington&ThomasB.Edsall,“Conservative Republicans Divided Over Nominee,” Washington Post (October 4, 2005), online: www. washingtonpost.com/wp-dyn/content/article/2005/10/03/AR2005100301468.html; David Corn, “Harriet Miers: Supreme Court Choice with Few Footprints,” The Nation (October 3, 2005), online: www.thenation.com/blog/156205/harriet-miers-supreme-court-choice-few-footprints;

Commitment and Cooperation on High Courts. Benjamin Alarie and Andrew J. Green.

© Oxford University Press 2017. Published 2017 by Oxford University Press.

worried she was only appointed because she was a close personal friend of Bush.5 The debate was important as O’Connor had been the “swing justice” on many cases, casting the deciding vote on decisions split between liberals and conservatives.6 Her replacement could give the advantage for one side or the other. In the face of the strong reaction, Miers eventually withdrew her name and Bush nominated, and the Senate later confirmed, a more clearly conservative Samuel Alito.

The Miers story is not the only controversial episode in the US appointment process: Robert Bork, one of Ronald Reagan’s nominees, was vilified in the press, which led to his rejection by the Senate; Clarence Thomas, nominated by George H.W. Bush, was accused of sexual harassment by a former colleague; Sonia Sotomayor, nominated by Barack Obama, was criticized for controversial views on judging—and the list goes on. The battle over who gets the nod is hard-fought because the war is seen as so important—the US Supreme Court obviously decides critical questions, often closely divided on ideological grounds. In one of the most famous examples, the Court split 54 on a central issue in the 2000 decision in Bush v. Gore about the constitutionality of a recount in Florida during the 2000 presidential election, with the five majority judges being conservative members of the Court appointed by Republican presidents.7 The Court has been firmly divided into ideological blocs in recent years, and appointments can bolster one side or the other.8

And the United States is not the only nation where selection of judges is controversial. In Canada, the appointments process is more straightforward with

Thomas Lifson, “Critiques of Miers,” American Thinker (October 3, 2005), online: www. americanthinker.com/blog/2005/10/critiques_of_miers.html.

  • 5. See e.g. “The Great Miers Mystery; The Supreme Court,” The Economist (October 8, 2005); Randy Barnett, “Cronyism,” Wall Street Journal (2005), online: www.cato.org/publications/ commentary/cronyism; Charles Krauthammer, “Withdraw This Nominee,” Washington Post (October 7, 2005), online: www.washingtonpost.com/wp-dyn/content/article/2005/10/06/ AR2005100601468.html (arguing that “[i]f Harriet Miers were not a crony of the president of the United States, her nomination to the Supreme Court would be a joke, as it would have occurred to no one else to nominate her”).
  • 6. Borger, “Bush Offers Crucial,” supra note 1; “Bush Picks White House,” supra note 1.
  • 7. Note, however, that two of the dissenting justices were also appointed by Republican presidents.
  • 8. Neal Devins & Lawrence Baum, “Split Definitive: How Party Polarization Turned the Supreme Court into a Partisan Court” (2014) (William & Mary Law School Research Paper No 09-276) at 38, online: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=24321n [Devins & Baum].

the power to appoint Supreme Court judges residing in the hands of the prime minister. Canadians often perceive the process at least as less overtly political than in the united States, and in fact Canada has had fewer large-scale controversies over Supreme Court appointments. However, the Supreme Court was recently in the unusual position of having to decide on the constitutionality of an appointment by Conservative prime minister Stephen Harper. Harper appointed Marc Nadon, a Federal Court of Appeal judge with conservative views, to the Supreme Court in October 2013. His appointment was immediately criticized as Canada has a constitutional requirement that three of the nine justices be Quebec judges or advocates from Quebec. Nadon had previously been a lawyer in Quebec but was not at the time of appointment. The Supreme Court eventually declared the appointment unconstitutional.[1] Despite this setback, Harper had a considerable opportunity to shape the Court, appointing seven of its current nine members.

The process can become politicized even where nominations are not made by political actors. The chief justice of India and the four most senior Supreme Court judges—known as the “collegium”—nominate candidates for the Supreme Court of India. In 2014, the collegium nominated Gopal Subramanium for a position on the Court. However, shortly after, a new party came into power in India and apparently requested the collegium to reconsider. Among other things, the government claimed Subramanium had ties to corporate lobbyists. Subramanium later withdrew his name, claiming the government was unfairly criticizing him for his independence.[2]

Appointments, and the power to make them, are contested because they have the potential to embed a set of views that will influence future law and policy. The natural question to ask is whether how one decides which judges should be on the court makes a difference to how the judges decide. Are more political processes a recipe for more political, divisive judges, pushing courts with such processes toward the Attitudinal (upper left) sector of CC Space? Much of the literature on appointment processes seems to assume such a connection. If judges decide at least in part based on political preferences or identity, the rules around appointment help determine what the preferences or identities are on the court or the judge’s trade-off across factors. To see if there is a connection, we first need to examine how the appointment processes differ across countries.

Average tenure, standard deviation, and range of years on the bench for judges on each court between 1970 and early 2000s

Figure 3-1 Average tenure, standard deviation, and range of years on the bench for judges on each court between 1970 and early 2000s. uS judges stayed on the bench the longest by far on average and India the shortest. Moreover, both the united States and India had narrower ranges in how long judges stayed on the court than the other three countries.

  • [1] Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21; [2014] 1 SCR 433.
  • [2] Vishnu Som & A Vaidyanathan, “Why Gopal Subramanium Is No Longer Running forSupreme Court Judge”, NDTV (25 June, 2014), online: http://www.ndtv.com/india-news/why-gopal-subramanium-is-no-longer-running-for-supreme-court-judge-581019.
 
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