Appointing Justices
Filling a Supreme Court vacancy ranks among the most important decisions a president can make. It's one of the few opportunities he has to influence the policy debate beyond his time in office. Over the past two decades, the composition of the Supreme Court has become an increasingly prominent issue in the presidential election. During the 2000 campaign, George W. Bush promised supporters that he would appoint “strict constructionists” to the high Court, while Al Gore made it known that he favored more activist jurists.
Clarence Thomas received the narrowest confirmation margin in history, 52–48. Thomas's nomination was nearly derailed when a former colleague named Anita Hill alleged that he had sexually harassed her while the two worked together at the Equal Employment Opportunity Commission. Thomas riveted the country with his testimony, at one point referring to the proceedings as a “high-tech lynching.”
When choosing a nominee to the Supreme Court, presidents take into consideration several factors, including the following:
Ideology. Over the past two decades, ideology has become the predominant consideration. President Clinton's appointments of Ruth Bader Ginsburg and Steven Breyer, jurists generally considered moderate, reflected his centrist approach to governing. Not surprisingly, Ronald Reagan appointed Justice Antonin Scalia, considered by many to be the most conservative member of the current court. President George H. W. Bush nominated Clarence Thomas, in part to make amends with his conservative base after appointing David Souter a year earlier.
Confirmability. Given the increased politicization of the confirmation process, confirmability — the likelihood of the nominee being confirmed by the Senate — is a factor that has grown in importance. George H. W. Bush's primary motive for choosing David Souter, a little-known judge on the New Hampshire Supreme Court, was that he lacked a “paper trail” of views. The Senate had little choice but to confirm him.
Age. Because it's a lifetime appointment, age can be the deciding factor if two candidates are otherwise equally matched. In addition to being a reliably conservative vote, Clarence Thomas's relative youth — he was forty-three at the time of his nomination — made him an attractive appointment. Should he remain in good health, it's conceivable that Thomas could spend the greater part of his life on the bench.
Race and gender. It's undeniable that both race and gender play a role in today's nominating process. President Clinton's appointment of Ruth Bader Ginsburg was in keeping with a campaign promise to make his administration look more like America. It was no coincidence that an African-American, Clarence Thomas, replaced Thurgood Marshall, the court's first black justice. Many court-watchers expect President George W. Bush to make White House counsel Alberto Gonzales the first Hispanic nominee to the court.
