Professor Donald Elder: Selecting a Supreme Court Judge

Jul 5, 2018 by

An Interview with Professor Donald Elder: Selecting a Supreme Court Judge

Michael F. Shaughnessy –

  1. Professor Elder, as you know, Anthony Kennedy has just resigned as a Supreme Court Justice. We should first acknowledge his years of service. In your mind, what is his legacy?

In today’s day and age, we commonly use the phrase “swing vote.” That term definitely applies to Justice Kennedy. He served on the Supreme Court of the United States for 30 years, and cast the deciding vote in a number of landmark cases.

For example, in the last case decided during his tenure on the Supreme Court, Kennedy voted with the four most conservative members in deciding that individuals who public unions collectively bargain for do not need to join those organizations. But Kennedy also sided with the four liberal members of the Supreme Court in 2015 in recognizing the legality of same-sex marriages.

He sided more often than not with the conservatives, but cast his lot with the liberals often enough to warrant a reputation as a justice who defied categorization as a certainty on any issue.

2. Now, tell us about the procedure to get a Presidential nomination approved?

By federal law, the president of the United States nominates individuals to serve on the Supreme Court. The Senate, charged by the Constitution to give “advice and consent” on presidential nominations, then takes up consideration of the nominee.

Typically, this means tasking the Senate Judiciary Committee with conducting hearings on the suitability of the nominee to serve as a Supreme Court justice. After concluding the hearing, the committee then forwards a recommendation to the full Senate. That body usually discusses the recommendation, and then votes on it. If the nominee receives a majority of the votes, that person then becomes a member of the Supreme Court.

3. Why is this process sometimes fraught with peril?

For the nation’s first 190 years, the Senate usually confirmed Supreme Court nominations with little discussion. Indeed, the Senate confirmed two of Harry Truman’s four nominations for the Supreme Court by a voice vote, and only briefly debated his two other choices. This unanimity started to change in the 1960s, when Lyndon Johnson wanted to replace Chief Justice Earl Warren with Associate Justice Abe Fortas. While an able lawyer (he had successfully argued the case of Gideon v. Wainwright before the Supreme Court prior to his appointment to that body, for example), but conservatives in the Senate balked at confirming him as Chief Justice because of his support of liberal causes that had come before the court.

This opposition denied Fortas the top position on the Supreme Court, and Fortas eventually resigned his position. From that point on the orientation of a Supreme Court nominee has often led to a similar struggle regarding confirmation.

4. Back in 1776, with our founding fathers, what was their original intent in terms of the Supreme Court?

When the Continental Congress declared the independence of the United States, it then served as the governing body of the new nation. The Articles of Confederation, ratified in 1781, confirmed this arrangement. This document made no provision for a national court, largely due to the hostility of Americans to the manner in which British courts had prosecuted colonists for alleged smuggling activities.

Americans soon recognized the problems that this omission represented, and when the delegates to the Constitutional Convention met in 1787, they chose to rectify this deficiency by creating in Article Three of the document a process by which the new government could create a national court system.

5. Has their mission or charge changed over the years?

In 1789, Congress passed a law creating a Supreme Court, but for the first ten years of its existence the body heard few cases. To make matters worse, Congress undermined its only important ruling during that decade by passing a Constitutional Amendment. This changed in 1801, when John Marshall became the Chief Justice of the Supreme Court.

He chose to view the Supreme Court as a body of equal importance with the Executive and Legislative branches, and helped guide the court to make decisions that gave it an expanded authority. Most famously, the case of Marbury v. Madison established the principle of judicial review, i.e. the power to decide the constitutionality of state and federal laws. Thus, the Supreme Court has had a much broader scope than many Founding Fathers initially could have foreseen.

6. What are some of the issues facing a nominee?

Today, nominees can expect very pointed questions when they appear before the Senate during their confirmation hearings. Rather than asking broad, philosophical questions, senators now refer to specific cases that the nominees have been involved in, or could potentially be asked to decide.

Undoubtedly, senators will question Justice Kennedy’s potential replacement about the case of Roe v. Wade—a situation that would have been unthinkable only 60 years ago.

7. What have I neglected to ask?

In 1791, the Supreme Court issued its first decision. Virtually no American today could name that case. Today, however, any case could assume a landmark status. Clearly, then, the person who replaces Justice Kennedy could become the key vote in a decision that could shape the nation for decades to come.

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