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A, Appointment and Removal Power.

Edited By: Kermit L. Hall, James W. Ely Jr., Joel B. Grossman

From: The Oxford Companion to the Supreme Court of the United States (2nd Edition)

Edited By: Kermit L. Hall

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 23 November 2020

Appointment and Removal Power.

The Constitution of the United States contains two references to the appointment and removal power. Article II, section 2 provides that the president, “by and with the advice and consent of the Senate, shall appoint Judges of the Supreme Court.” *Article III, section 1 states that “the Judges, both of the supreme and inferior courts, shall hold their offices during good behavior.” Appointment and removal are linked because the framers’ concern about judicial independence determined, in part, the limitations upon executive authority contained in each of these clauses. This concern for judicial integrity, competence, and independence was founded in the experience of British colonial policy in the decade preceding the Revolutionary War. According to Gordon Wood, British judicial appointment policy had become one of “strengthening the court (monarchical) interest” and “advancing to the most eminent stations men without education, and of dissolute manners, … sporting with our persons and estates, by filling the highest seats of justice with bankrupts, bullies, and blockheads …” (Wood, 1969, pp. 78, 145). Ironically, between 1776 and 1787 the mode of judicial selection became an issue in the regional and institutional conflicts that divided convention delegates. Ultimately, the framers did not provide any criteria, professional or otherwise, for the choices of justices, although the delegates did discuss the need for well-qualified jurists.

Institutional power and regional influence over-shadowed judicial qualifications in the Constitutional Convention discussions. Just as support for state legislative judicial appointment authority waned after the revolution, the initial effort to place appointment of the justices in the “national legislature” failed. Conversely, Federalist efforts at placing judicial selection solely under the authority of the president also failed. Selection by the Senate alone also was defeated, although from 13 June to 7 September 1787 a majority of the delegates supported this alternative. The present scheme of presidential nomination and appointment with the advice and consent of the Senate was adopted in the closing days of the Convention.

The necessity of accommodating regional and cultural differences modified nationalistic Federalist ideology. While President George *Washington (p. 49) chose sound Federalists for the Supreme Court, he and his successors carefully distributed the judicial seats regionally, as required by political necessity and by the provisions of the *Judiciary Act of 1789, which assigned the justices to circuit duties within the region from which they were chosen (see circuit riding). Thus the entire Congress rather than the Senate alone initially had some influence, albeit indirect, over presidential selection by linking circuit duty to Supreme Court service, judicial selection to a regional distribution pattern, and the size of the Court’s membership to the number of circuits. This relationship was maintained by Congress for over a century. Additional manifestations of congressional assertiveness took the form of proposed *constitutional amendments in the nineteenth century either to provide the House of Representatives a role equal to that in the Senate (1808) or to eliminate the president’s role and place selection entirely in the two legislative chambers (1818 and 1867, 1868). Of much greater importance to the selection process was the relative influence of senatorial advice and consent upon successive presidential nominations.

The Senate’s practice of defeating nominees because of their political and ideological positions began during the presidency of George Washington. John *Rutledge’s public opposition to the Federalist-sponsored Jay Treaty with Great Britain was the real reason for his defeat, but many senators chose his alleged eccentric behavior as the ostensible reason, thus establishing a tradition of masking partisan objections behind a veneer of fitness qualifications. The Senate has rejected some nominees for lack of ability or probity. President Ulysses S. Grant’s nomination of his corrupt attorney general George H. *Williams is illustrative.

Contemporary debate over the significance of Robert *Bork’s defeat has centered upon whether the Senate introduced novel partisan and ideological considerations. Yet any assessment of such factors must also include an examination of presidential behavior. The historical and contemporary record indicates no significant change. When partisan and ideological differences placed presidents and senators in opposition over judicial nominations, the outcome was determined most frequently on the basis of the relative political strength, tenacity, and strategic ability of the contenders. Thus is not surprising that John *Tyler, who completed a term of a deceased president, was denied the opportunity to fill two long-vacant justiceships. The denial was not because of his succession to the presidency, but his political weakness. Similarly, even presidents who had gained large electoral majorities have been thwarted as lame ducks. Lyndon Johnson’s attempt to elevate Justice Abe *Fortas to chief justice and Ronald *Reagan’s nomination of Bork provide twentieth-century examples. But the constitutional framework also contributes to the relationship of president and Senate in a determinative manner (see nominees, rejection of).

The central institutional factor is the constitutional limitation on arbitrary removal, the guarantee of terms during good behavior. In a frequently cited analysis completed in the late 1950s, Robert Dahl concluded that “the policy views dominant on the Court are never long out of line with the policy views dominant among the lawmaking majorities of the United States” (Dahl, 1957, p. 293). Dahl’s indication that a president could anticipate a new Supreme Court appointment every twenty-two months was based on sound averaging but was of little comfort to presidents who had no opportunity to appoint (Andrew Johnson and Jimmy Carter) or who had below average opportunities (*Jefferson, *Madison, Monroe, John Quincy *Adams, Taylor, Fillmore, Pierce, Buchanan, McKinley, Wilson, Coolidge, Lyndon Johnson, and Ford).

Removal has not been available to thwarted presidents. Eight articles of *impeachment were adopted by the House of Representatives in 1804 against Justice Samuel *Chase, but the Senate acquitted him. The failure of that early attempt at establishing judicial partisanship as a basis of removal meant in practice that health and personal inclination were the only limits on a justice. As a result, the tension between presidential desire to make judicial appointments consistent with an individual president’s policy preferences and judicial inclination to remain on the Supreme Court becomes especially great after periods of fundamental electoral change such as critical elections (see party system). Death and severe illness have been the inexorable involuntary factors that have concluded judicial careers.

Throughout the Court’s history, an over-whelming number of members have either voluntarily left the Court during a presidential administration of their own political party or remained on the Court as long as possible. The major twentieth-century exception, Chief Justice Earl *Warren’s 1968 announcement of retirement after President Johnson decided against another run for the presidency, underscored the generally unspoken assumption. Subsequent attacks on Warren by Republican senators and vice-presidential candidate Spiro Agnew were followed, after the November 1968 election, by District of Columbia Circuit Judge John A. Danaher’s December announcement that he would retire after 20 January 1969, so that president-elect Nixon could fill the vacancy. Danaher believed that it was entirely fitting for him to return the vacancy to the Republican party.

(p. 50) In sum, presidential choice is limited by tenure during good behavior and, assuming good health, the extent to which justices prefer to remain on the Court. Despite several dramatic senatorial rejections (Judge John J. *Parker, Justice *Fortas, and, as a result, Judge Homer *Thornberry, and Judges Bork and *Ginsburg), the proportion of Senate rejections by vote or forced withdrawals has diminished in the twentieth century in comparison to the nineteenth century (see nominations, controversial).

One major long-term problem related to both the presidential and the senatorial roles in the selection of justices has been the availability of basic information about nominees. From the era of the robber barons until the advent of public hearings by the *Senate Judiciary Committee, there were recurrent attempts by Populist and Progressive senators to show the alleged influence by corporate interests in Supreme Court selections through public disclosure of the communications received by a president. Conversely, the Senate maintained its procedure of handling all nominations in closed sessions until 1929. The *Brandeis (1916) and *Stone (1925) nominations were the only exceptions before the adoption of Senator Robinson’s 1929 rule change, which provides that nomination sessions are public unless made closed by majority vote.

Senate Judiciary Committee practice changed in 1939 when nominees, beginning with Felix *Frankfurter, were questioned by the committee. Such questioning obviously provided greater opportunities for critics of presidential nominees to either embarrass a president or contribute to the defeat of the nominee. Senator Strom Thurmond’s shouted taunt, “Mallory! Mallory! I want that name to ring in your ears,” to Justice Fortas dramatized the extent to which doctrinal issues are often openly invoked by protagonists and opponents in Supreme Court nomination controversies. The basic question is whether senatorial opponents are willing to be as candid about the doctrinal or ideological basis of their opposition as Thurmond’s South Carolina colleague was in the Fortas controversy. Senator Fritz Hollings flatly argued that a vote to confirm Fortas as chief justice was tantamount to approving his brand of judicial philosophy. Ironically, most intense conflicts over the ideological or doctrinal basis of nomination support or rejection are characterized by lack of candor on the part of the major contestants. For example, most Senate opponents of Bork denied rejection on liberal doctrinal grounds, just as President Reagan and Attorney General Meese denied employing a conservative litmus test to screen potential judicial nominees.

An additional and very important dimension of selecting Supreme Court members involves the special role of the American Bar Association. At least as early as the administration of President Herbert Hoover, the ABA was granted an important informal role in the nomination and appointment process. Because the ABA’s key committees frequently opposed *New Deal legislation, the then conservative organization was out of favor during Franklin D. *Roosevelt’s presidency. After years of informal but highly visible advice, the American Bar Association House of Delegates in 1952 asked the platform committees of both the Democratic and Republican parties to adopt planks requiring the president to consult with the *American Bar Association Standing Committee on Federal Judiciary (which had been created in 1946). President Eisenhower did so and in subsequent years the ABA committee increased its influence. The high point in presidential-ABA relationship was reached under President *Nixon, when the ABA’s reputation was involved in behalf of the president’s nominee, Clement *Haynsworth. During the decades of ABA influence in the Supreme Court selection process, it was initially criticized for bias against liberal candidates and for conservative ones. After the Bork nomination controversy, conservatives bitterly denounced the ABA committee. Regardless of whether the charges of bias came from liberals or conservatives, there has always been a serious underlying constitutional question about the appropriateness of the extraordinary delegation of executive constitutional power to a small private organization. President George W. Bush’s substitution of the secretive Federalist Society for the ABA as the informal gatekeeper for federal judicial appointments has underscored the intensifying seriousness of this constitutional issue.

See also selection of justices.

Robert A. Dahl, “Decision-Making in a Democracy: The Supreme Court as a National Policy Maker,” Journal of Public Law 6 (1957): 279–295. Paul A. Freund, “Appointment of Justices: Some Historical Perspectives,” Harvard Law Review 101 (1988): 1146–1163. John R. Schmidhauser, Judges and Justices, the Federal Appellate Judiciary (1979). Gordon Wood, The Creation of the American Republic, 1776–1787 (1969).

John R. Schmidhauser