History of Appointments to the Supreme Court

[T h e m e m o ra n d u m w h ic h fo llo w s, p re p a re d by th e O ffice o f L e g a l C o u n se l at th e re q u e st 

o f th e A tto rn e y G e n e ra l, s u rv e y s fo u r g e n e ra l a sp e c ts o f th e p ro c e ss o f a p p o in tin g 

Ju stic e s o f th e S u p re m e C o u rt: (1) th e q u a litie s P re s id e n ts h a v e s o u g h t in S u p re m e 

C o u rt n o m in ees; (2) th e p ro c e ss o f re c ru itin g a n d e v a lu a tin g p o te n tia l a p p o in te e s p rio r 

to n o m in a tio n ; (3) th e m a n n e r in w h ic h th e S e n a te fulfills its re sp o n sib ilitie s in th e 

a p p o in tm e n t p ro c e ss; a n d (4) th e re la tio n s h ip b e tw e e n th e '.'io c e ss o f c h o o s in g a 

c a n d id a te an d a su cc e ssfu l c a n d id a te ’s e v e n tu a l p e rfo rm a n c e o n th e C 'u rt. T h e m e m o ­

ra n d u m p a y s sp ec ia l a tte n tio n to th e ro le s p la y e d in th e a p p o in tm e n t p ro c e s s b y th e 

A tto rn e y G e n e ra l a n d th e D e p a rtm e n t o f J u stic e ]

March 5, 1980

MEMORANDUM FOR TH E ATTORNEY GENERAL

I. Introduction

Aspirants to the Supreme Court, unlike presidential, vice-presidential, 

and congressional candidates, are subject to no constitutional limitations 

regarding age, citizenship, or residency. No statute requires that Justices even be lawyers, although every nominee so far has met this 

criterion. Congress has considered bills to limit Supreme Court appointments either to persons under a particular age or to candidates with 

prior judicial experience; no such limitation has ever been enacted. The 

history of Supreme Court appointments is consequently a history of 

presidential discretion limited formally only by the Senate confirmation 

process, which also proceeds without direct constitutional guidance.

In response to your request, this Office has surveyed some of the vast 

literature relevant to the history of Supreme Court appointments.1 We 

have addressed four general questions: What qualities have Presidents 

sought in Supreme Court nominees? How are potential appointees recruited and evaluated prior to nomination? How does the Senate fulfill 

its responsibilities in the appointment process? Is there a predictable 

relationship between the process of choosing a candidate and a successful candidate’s eventual performance on the Court? In surveying the 

history of nominations and appointments, we have paid special attention

1 Secondary sources are cited in footnotes by author and page number; a bibliography indicating the 

full citation for each source is appended to this memorandum. We found the most useful general 

review of the history o f Supreme C ourt appointments to be H. Abraham, Justices and Presidents: A 

PoliticalH istory o f Appointm ents to the Supreme C ourt (1974).

457
to the roles played in these processes by the Attorney General and the 

Department of Justice.

No one formula for choosing the “best” Supreme Court Justice can 

be deduced from a historical survey. Who are the best candidates with 

respect to any particular vacancy will depend on a host of factors, 

including the President’s political philosophy, his perceptions of the 

role of the Court in American government, the crucial issues facing the 

nation at a given moment in history, and the Court’s changing institutional needs. Neither can a Justice’s post-appointment performance be 

predicted with entire confidence based on his pre-appointment career. 

The uniqueness of the Court’s institutional role, the wide range of vital 

questions that the Justices adjudicate, and the need for each Justice to 

collaborate with eight others in reaching what often are controversial 

results, all necessarily affect any appointee’s eventual record in the 

decision of cases. The aim of this memorandum is consequently not to 

elaborate, in any definitive way, how a great Justice might now be 

chosen; its aim is to identify the range of issues of which the President 

at least ought to be aware in exercising his discretion, and which this 

Department should consider if it is to be helpful in the appointment 

process.

II. The Presidents’ Criteria

Under Article II, § 2, clause 2 of the Constitution, the President 

“shall nominate, and by and with the Advice and Consent of the 

Senate, shall appoint . . . judges of the Supreme Court. . . .” All but 

four Presidents—the exceptions so far including President Carter—have 

successfully nominated at least one Supreme Court Justice. Presidents 

have sometimes made their selection criteria explicit. George 

Washington, for example, insisted on support of the Constitution, distinguished Revolutionary service, active political involvement, prior judicial experience, geographic “suitability,” and either a good general 

reputation or personal ties with the President himself.2 More often, the 

criteria have been tacit and ad hoc. It is possible, however, based on 

the history of, 104 successful Court appointments,3 to examine certain 

factors that have weighed to some degree in all nominations.

A. Ability and Character

President Herbert Hoover asserted that his Supreme Court appointees were “chosen solely on the basis of character and mental 

power,” 4 and every President, in explaining his nominations publicly,

2 Abraham at 64.

3 T he 104 successful appointm ents include three successful “prom otions’* of Associate Justices to 

the post of C hief Justice. T he tola! number of persons to have served so far in the C ourt is 101. 

Abraham at 46-47.

4 T eger at 46.

458
has cited ability and character among his criteria for selection. Some 

minimum of each is thus a sine qua non for a successful appointment. 

The appropriate measure of “objective” merit, however, especially regarding judicial ability, may vary with the needs of the country and of 

the Court when a vacancy occurs. With respect to some appointments, 

the Court’s greatest need may be an exceptional intellectual leader, with 

or without extensive political or administrative experience. At other 

times, the Court may need a catalytic administrator or an effective 

advocate more than it needs a truly brilliant thinker. An ideal candidate, of course, would be both intellectually gifted and politically 

effective; the balance of these talents is likely, however, to vary even 

within the pool of the nation’s best candidates.

Because the number of capable individuals is much greater inevitably 

than the number of places to be filled, few nominations have occurred 

in which a candidate’s outstanding ability alone appears to have decided his nomination. There are, however, exceptions. Although President Hoover wanted a “non-controversial western Republican” to succeed Oliver Wendell Holmes,5 he was persuaded by a long list of labor 

and business leaders, scholars, and Senators that Chief Judge Benjamin 

N. Cardozo of the New York Court of Appeals was the only fit 

successor. The final straw breaking Hoover’s resistance appears to have 

been the emphatic endorsement of Senator William E. Borah of Idaho, 

the Republican chairman of the Foreign Relations Committee, who 

reportedly told Hoover, “Cardozo belongs as much to Idaho as to New 

York,” and “[g]eography should no more bar the judge than the presence of two Virginians—John Blair and Bushrod Washington—should 

have kept President Adams from naming John Marshall to be Chief 

Justice.” 6 When reminded that a Jewish Justice, Louis Brandeis, already sat on the Court, Borah said, “Anyone who raises the question of 

race [sic] is unfit to advise you concerning so important a matter.” 7 A 

similar chorus of support induced President Roosevelt to appoint Felix 

Frankfurter as Cardozo’s successor. Roosevelt, like Hoover, wanted a 

Westerner on the Court, although, had he found one to succeed 

Cardozo, Frankfurter—already a Roosevelt adviser—likely would have 

received a subsequent Roosevelt nomination.

Not only is objective merit rarely the decisive criterion, but some of 

the nation’s greatest Justices were apparently chosen without obvious 

primary regard for their intellectual potential. Joseph Story, for example, who probably ranks second only to John Marshall in his impact on 

American law, was the fourth nomination submitted by President 

Madison for the seat after two confirmed appointees (Levi Lincoln and 

John Quincy Adams) had declined the position and a third nominee had

* A braham at 191.

• A braham al 192.

7 A braham al 192.

459
been rejected by the Senate. In the end, it is uncertain what led 

Madison to Story, although it is known that Story’s uncle was a close 

friend of the President.8

Conversely, some candidates whose pre-appointment careers promised considerable success based on objective merit performed with little 

distinction once appointed. The clearest recent example is Charles Evan 

Whittaker, an outstanding commercial lawyer from Missouri, who had 

served briefly on both the U.S. District Court and Court of Appeals, 

and who had won the strong support of Attorney General Brownell. 

President Eisenhower appointed Whittaker to the Supreme Court in 

1957; he resigned ^ years later with few significant Supreme Court 

opinions to his credit.9

To a President interested in demonstrated merit, prior judicial experience may appear a useful index. Fifty-eight of the 101 individuals to 

serve on the Supreme Court had served earlier on a state or on a lower 

federal tribunal. This asset, in this century, appears to have appealed 

more to Republican than to Democratic Presidents. Of the 23 individuals with prior judicial experience appointed to the Supreme Court 

since 1900, only eight were appointed by Democrats, although, of the 

44 persons named to the Court in this century, Democrats have named 

18. The 43 persons to serve without prior judicial experience on the 

Supreme Court since its inception include John Marshall, Joseph Story, 

Roger Taney, Charles Evans Hughes, Louis Brandeis, Harlan Fiske 

Stone (when appointed Associate Justice), Felix Frankfurter, William 

Douglas, Robert Jackson, and Earl Warren—a list that clearly demonstrates the absence of any necessary correlation between judicial experience and capacity for distinguished service.

Presidents have not viewed judicial service as a prerequisite to nomination. However, all but one of the 101 persons to sit on the Court 

reached the Court after careers in politics or public service of some 

sort.10 Although a record of judicial service may be helpful in facilitating an assessment of a candidate’s performance as a legal thinker, 

Presidents appear historically to have been at least as concerned with a 

person’s demonstrated acquaintance with the nation’s needs and public 

processes, and sustained prior exposure to the pressures of public life. 

Some history of functioning in a pressurized environment may help 

assure that a nominee’s effectiveness and independence on the Court

8 Abraham at 79-81.

9 Abraham at 247-48.

10 T he one exception is G eorge Shiras, Jr.. a Pittsburgh corporate law yer appointed to the Court in 

1892 by Benjamin Harrison. All five academicians to reach the C ourt (four of them appointed by 

FD R ) had considerable experience in public life in addition to their academic backgrounds. Fourteen 

A ttorneys G eneral have been nominated to the Court. Nine w ere successfully appointed—Taney, 

Clifford, M oody, M cKenna, M cReynolds, Stone, Jackson, M urphy and Clark. T w o were rejected by 

the Senate and tw o w ithdrew before confirm ation. One, Edwin M. Stanton, was confirmed, but died 

before taking his seat. A braham at 52; Schm idhauser at 82-83.

460
will not be overcome by public criticism or the magnitude of the issues 

that the Court confronts.

B. Political and Legal Philosophy

Because intellect is rarely the sole determinant of a Supreme Court 

nomination, and because most Presidents have attached great importance to the Supreme Court’s role in legitimating particular policies or 

national goals, the acceptability of a candidate’s personal philosophy is 

often another sine qua non for nomination. As with “merit,” however, 

what constitutes an acceptable philosophy may depend on the times, on 

the President’s attitude towards the Court, and on a candidate’s fitness 

in other respects. For example, political considerations, such as rewarding partisan activity or defusing potential political opposition, may 

argue in favor of a particular nomination, although the appointing 

President could have identified a more personally compatible choice. In 

the case of Earl Warren, nominated by President Eisenhower for the 

Chief Justiceship in 1953, the President was likely impressed by 

Warren’s political and administrative experience and skill, his positions 

on particular issues (such as the 1937 Court-packing bill and the 1952 

steel seizure case), and his campaign service both to Eisenhower and to 

Thomas E. Dewey before him. However, Warren was also obstructing 

the takeover of California Republican politics by more partisan leadership, including Vice-President Nixon. Perhaps, had it not been for this 

last factor, Eisenhower would have turned to Governor Dewey or to 

Chief Justice Vanderbilt of the New Jersey Supreme Court for the 

vacant post.11 In any event, Eisenhower did not know Warren’s philosophy well (he sent Attorney General Brownell to interview him before 

the nomination), and disagreed with the philosophy eventually manifested in Warren’s decisions.

At particular times in history, the importance of a single issue to the 

nation’s welfare or to a President’s program has seemed so great that a 

candidate’s position on that issue, rather than his philosophy as a whole, 

became the litmus test of his acceptability. Obvious examples include 

the cause of Unionism under Lincoln, the constitutionality of greenbacks as legal tender under Grant, and the legitimacy of extensive 

government regulation under Franklin Roosevelt. The single-issue test, 

however, hardly guarantees a particular justice’s pattern of thought. 

For example, the fervent antitrust position of Attorney General James 

Clark McReynolds undoubtedly recommended the idea of his nomination highly to President Wilson. However, once on the Court, 

McReynolds proved to be an unabashed conservative, and virtually all 

of his other positions were opposed to Wilsonian prpgressivism.

11 Abraham at 235-37.

461
Consequently, those Presidents most deeply interested in appointing 

politically compatible Justices have focused neither on single-issue positions, nor on partisan identification, but on the overall pattern of a 

candidate’s values and opinions. As explained by Theodore Roosevelt 

to Senator Lodge, in a much-quoted 1906 letter discussing the potential 

appointment of Justice Lurton: “[T]he nominal politics of the man has 

nothing to do with his actions on the bench. His real politics are all 

important.” 12

The clearest recent expression of this approach to the selection of 

Supreme Court justices was offered by Presidential candidate Nixon, in 

discussing what he would do to replace Chief Justice Warren:

The President cannot and should not control the decisions 

of the Supreme Court. . . . There are two important 

things I would consider in selecting a replacement to the 

Court. First, since I believe in a strict interpretation of the 

Supreme Court’s role, I would appoint a man of similar 

philosophical persuasion. Second, recent Court decisions 

have tended to weaken the peace forces as against the 

criminal forces in this country. I would, therefore, want 

to select a man who was thoroughly experienced . . . in 

the criminal laws and its [sic] problems.13

Nixon said he wanted:

strict constructionists who saw their duty as interpreting 

and not making law. They would see themselves as caretakers of the Constitution and . . . not super-legislators 

with a free hand to impose their social and political viewpoints on the American people.14

When they are measured against these standards, there is no reason 

to think that, on balance, Nixon would be disappointed with his appointees’ performances on the Court. The most obvious exception may 

be Justice Blackmun’s decision in the abortion cases, a decision no one 

could likely have anticipated.15 Chief Justice Burger also has written or 

joined in strong pro-integration decisions.

One reason why a nominee’s performance may eventually surprise 

the President who appointed him is the potential confusion, in the 

recruitment process, between a candidate’s political and judicial philosophies. Franklin Roosevelt, for example, wanted ardent New Deal 

supporters on the Court. One such clear supporter was Felix Frank12 Schubert at 40.

, 3 Ashby at 366, (quoting Congressional Quarterly Almanac, 91st Cong., 1st Sess. (1969) at 130).

14 id.-

16 It should also be noted that Nixon's ability to appoint a personally compatible Justice was most 

sharply curtailed by the time he nominated Justice Blackmun, because the failure o f the H aynsworth 

and Carswell nominations made it politically necessary to locate a noncontroversia) moderate. 

Abraham at 9.

462
furter. The central theme, however, of Justice Frankfurter’s judicial 

philosophy proved to be judicial restraint. He believed that the constitutional distribution of powers among the branches of the federal 

govenment and between the federal and state governments required the 

Court to avoid decisions that he deemed merely the imposition of its 

own value choices on political authorities who were constitutionally 

empowered to decide the same value questions differently. This deference to the elected branches enabled Frankfurter, as a Justice, fully to 

support the New Deal legislative program. However, Frankfurter’s 

record in interpreting the Bill of Rights would appear far less libertarian than that of other FDR appointees, especially Douglas, Black, and 

Murphy, despite similar personal philosophies, because his judicial philosophy was so much less expansive.

In this vein, it should especially be noted that shorthand labels for 

candidates’ philosophies can be misleading. President Nixon advocated 

“strict constructionism,” but appointed at least one Justice, William 

Rehnquist, whose clear views of the constitutionally mandated distribution of powers, like most theories on the subject, is not compelled 

either by the language of the Constitution or by judicial precedent. For 

this reason, Rehnquist, though politically conservative, has been viewed 

by some as a judicial activist.16 Conversely, Hugo Black, generally 

considered one of the nation’s greatest liberal jurists, reached strongly 

libertarian results through “strict construction” of the First Amendment. 17

A President should also recognize, if his aim is to affect the general 

direction of Court decisions, that his purpose can not always be best 

accomplished by an intellectually gifted person adhering unwaveringly 

to the President’s or to any other doctrinaire point of view.18 Critical 

to any Justice’s potential influence is his ability to function effectively 

in a collegial decisionmaking context. Because a Supreme Court Justice 

is wedded to his colleagues for life, a gift for diplomacy, including a 

willingness to compromise when necessary, will make his presence 

more tolerable and his eventual contributions more persuasive. The 

indicia of political acceptability cannot be viewed wholly apart from 

the criteria of ability. A record of public or civic service; a strong, 

confident, and tolerant personality; and a mature temperament joined 

with legal ability and intellect mark not only the gifted potential judge, 

but also the effective institutional advocate.

16 See generally Shapiro, Mr. Justice Rehnquist: A Preliminary View, 90 Harv. L. Rev. 293 (1976).

17 Rubin, Judicial Review in the United States, 40 La. L. Rev. 67, 77 (1979).

18 For a highly elaborate, mathematically based theory for guiding Presidents in the selection of 

Justices who will influence C ourt dispositions, see S. Teger, Presidential Strategy fo r the Appointment o f

Supreme Court Justices (1976) (unpublished U. of Rochester Ph.D. thesis. Library o f Congress).

463
In narrowing the pool of potential nominees, Presidents have frequently considered what category of individuals might enhance public 

perceptions of the “representativeness” of the Court. The primary 

measure of representativeness, as pursued by the Presidents, has been 

geographical. Although the Constitution does not require regional balance, a desire for it underlies, in part, the constitutional designation of 

the President to nominate Supreme Court Justices. It is recorded that, 

during the debate on this provision, James Madison urged the Constitutional Convention, “The Executive magistrate would be considered as a 

national officer, acting for and equally sympathizing with every part of 

the United States.” 19 In a variety of constitutional provisions, the 

Framers clearly sought to avoid sectional domination of the Government, and it might be argued that, in seeking geographical balance on 

the Court, a President is respecting a value implicit in our constitutional 

system.

Geographic balance was most clearly a presidential consideration 

with respect to Supreme Court appointments through the late 19th 

century. In selecting the original members of the Court, George Washington chose representatives of New York, Pennsylvania, Massachusetts, Virginia, and South Carolina. As the country moved westward, 

each President, starting with Jefferson, began to seek seats first for 

Justices from states west of the Alleghenies, then from west of the 

Mississippi, and finally, with Lincoln’s appointment of Stephen J. Field 

of California, from the Far West. Andrew Jackson, who made seven 

nominations, tried scrupulously to have represented each circuit in the 

nation’s growing judicial system. The balance of Northerners and 

Southerners was also of obvious political significance, both before and 

after the Civil War. Part of President Hayes’ program of 

postreconstruction reconciliation was the appointment of a Southerner 

(although Northern-born), William Woods, to the Court in 1880. The 

symbolism was consummated in 1887 by President Cleveland’s appointment of Lucius Q. C. Lamar, the first “real” Southerner to reach the 

Court since 1853, and a former member of both the Confederate Army 

and the government of the Confederacy.20

In this century, although remaining of some concern, the emphasis on 

regionalism has been less obvious. Some Presidents have more or less 

disavowed its importance. Theodore Roosevelt wrote, “I have grown 

to feel, most emphatically, that the Supreme Court is a matter of too 

great importance to me to pay heed to where a man comes from.” 21

C. Enhancing the Representativeness o f the Court

19 Padover at 405.

20 Abraham at 131.

21 A braham at 146.

464
Roosevelt appointed, within a 4-year period, two Justices from Massachusetts, Oliver Wendell Holmes and William H. Moody. A similar 

“imbalance” occurred under Presidents Coolidge and Hoover, who 

appointed three New York Justices—Chief Justice Hughes and Associate Justices Stone and Cardozo. This imbalance, lasting 8 years, occurred notwithstanding Hoover’s reluctance, before picking Cardozo, 

to choose another New Yorker for the Court.

The Supreme Court currently includes two Minnesotans (both appointed by Nixon), and one Justice each from New Jersey, Ohio, 

Colorado, Maryland,22 Virginia, Arizona, and Illinois. The most recent 

New Englander to serve on the Court was Chief Justice Stone, who 

died in 1946. The most recent representative pf the Deep South was 

Hugo Black, who died in 1971, although in selecting Justice Powell to 

succeed Black, President Nixon emphasized Powell’s southern origins.

Although not explicitly contemplated during the constitutional debates, Presidents, for political reasons or otherwise, have also sought 

“balance” with respect to other criteria as well: partisan affiliation, 

religion, and, most recently, race. There continue to be strong pressures 

to appoint a woman Justice.

It is arguable that such considerations as race, religion, ethnicity, or 

sex are offensive criteria in the choice of Justices, because they distract 

from the idea of simply choosing the “best” persons for the Court or 

from the constitutional grant of total discretion to the nominating 

President. It is also arguable, however, that diversity on the Court 

boosts public confidence in the legitimacy of the Court’s decisions. In 

addition, presidential concerns for diversity may properly affirm egalitarian ideals in the society at large and the value of diversity itself.

As the record now stands, of the 101 people to serve on the Court, 

all have been men, 100 have been white, 95 have been of Anglo-Saxon 

descent, 95 have been native-born, and almost all have been Protestant.23 Roger Taney, a Catholic and the first non-Protestant appointed, 

served from 1836 to 1864. Thereafter, one seat on the Court was held 

by a Catholic from 1894 to the present, except for a 7-year period 

between 1949 and 1956.24 Louis Brandeis, the first Jewish Justice, was 

appointed in 1916. At least one seat on the Court between 1916 and 

1969 was held by a Justice who was Jewish.25 Thus, except for a 

pattern of regional diversity, the history of the Court reveals a largely 

homogeneous membership when measured according to the most obvious criteria of social background.

22 Though appointed from New York, Justice Marshall was bom and started his legal career in 

Baltimore. Ashby at 320-26.

23 Abraham at 53.

24 This group includes Justices E. D. W hite, M cKenna, Butler, M urphy, and Brennan. Abraham at

56-57.

25 This group includes Justices C ardozo, Frankfurter, and G oldberg. Abraham at 58.

465
D. O ther Criteria

Ability, character, and philosophical or representative suitability 

hardly exhaust the list of criteria evident in the nominations made to 

the Court thus far. Age and health, of course, have played major parts. 

The appointment of a younger person to the Court may help assure a 

new Justice’s continued influence over a long period, or at least help 

assure the Court of the continued aid of a physically vigorous individual. In one case, perhaps, a President used old age as a criterion. 

William Howard Taft’s appointment in 1910 of the 66-year-old Edward

D. White to be Chief Justice may have been motivated, in part, by 

Taft’s desire to assure the subsequent occurrence of a vacancy that he 

himself could assume after his Presidency.26

Other considerations in the choice of nominees may include friendship, the rewarding of political partisanship or of particular public 

service, the effective elimination of a political opponent, placating political opposition or securing political support. None of these alone has 

likely secured the position of a Supreme Court Justice; however, each 

has been among the motivations underlying the selection of particular 

nominees from pools of otherwise qualified persons.

The presence of ulterior motives in the nominating process or a close 

association between a nominee and the appointing President of course 

need not correlate with the candidate’s unsuitability on other grounds. 

Among the justices appointed by the Presidents of whom they were 

close personal or political allies are Roger Taney (Jackson), Stephen 

Field (Lincoln), Harlan Fiske Stone (Coolidge), and Felix Frankfurter 

(FDR), all of whom would have qualified under any set of criteria.

However, although no clear formula exists for the selection of a great 

future Justice or one set formula to identify a fit nominee, the President’s thinking perhaps may usefully be guided by a set of general 

principles. With respect to criteria closely related to a person’s likely 

performance on the Court, some high degree of ability, character, 

health, and philosophical compatibility ought to be viewed as a set of 

threshold requirements. Having identified a pool of qualified finalists, 

the President could then—without undermining public confidence in his 

choice—consider other criteria, e.g., geographic suitability, background 

(sex, race), or rewarding public service, that might legitimately play a 

part in his ultimate selection. To the extent his criteria might be considered personal or political favoritism, he should be all the more careful 

that his choice be defensible when measured against other candidates 

and against criteria related to likely performance. Though no President 

can guarantee greatness in his appointees, he can likely avoid serious 

disappointment by soliciting a variety of suggestions for any vacancy, 

evaluating candidates across a wide range of criteria, and, in analyzing

26 Abraham at 159.

466
his personal preferences, bearing in mind the Court’s needs and public 

perceptions of the Court.27

III. Identification and Evaluation of Nominees

Because presidential acquaintance and selection criteria rarely limit 

the pool of eligible candidates for the Supreme Court to one, Presidents 

ordinarily rely to some degree on the assistance and advice of others in 

choosing their nominees. Analytically, such assistance may be viewed 

as coming in two stages: first, the identification of suitable candidates 

for the Court; second, the more exacting evaluation of the serious 

contenders.

A. Identification o f Potential Nominees

Potential sources of information concerning suitable candidates are 

almost endless. Solicited or unsolicited suggestions may come from the 

President’s advisers, both official and unofficial, as well as from Members of Congress, sitting members of the judiciary, legal scholars, state 

bar representatives, concerned private citizens and candidates themselves.

Some instances are known in which Congress pilayed a strong role, 

invited or otherwise, in the candidate identification process. In perhaps 

the most dramatic instance, Thomas Jefferson, in his search for a 

Supreme Court Justice to come from west of the Appalachians, asked 

each Member of Congress to suggest two names. He selected Thomas 

Todd of Kentucky, the one person named as first or second choice by 

every Member of Congress from the new Seventh Circuit, which comprised Kentucky, Ohio, and Tennessee. Later in the 19th century, 

Congress mounted notable, though uninvited campaigns for President 

Lincoln’s 1862 nomination of Samuel M iller28 and for President 

Grant’s 1869 nomination of Edwin M. Stanton.29 Although these are 

exceptional examples of congressional activism, suggestions by individual Members of Congress, particularly from the leadership, are undoubtedly common.

Suggestions from sitting judges or Justices may also be expected. 

Indeed, in one case, the entire incumbent Supreme Court wrote to the 

President to urge the nomination of a particular candidate: John Campbell of Alabama, who was nominated for the Court in 1853 by Presi27 A President should also be aware of the extent to which an appointment may, as a m atter of 

political fact, “change the law.'* T here are issues, such as federalism, affirmative action, the death 

penalty, abortion rights, and school desegregation, on which lawyers and political scientists perceive 

the current Court in flux. The balance o f C ourt opinion on issues in these areas may be affected by a 

new Justice, although Presidents typically have not been successful in making new law through 

individual appointments. This is attributable not only to the unpredictability o f an individual's views 

and behavior, discussed above, but also to the Justices' ordinary adherence to precedent, by which 

most Justices consider themselves guided, if not bound.

28 Schubert at 41-44.

20 Abraham at 118.

467
dent Pierce.30 Chief Justices may more routinely offer their views on 

nominations. The most active campaigner among Chief Justices was 

likely William Howard Taft. Taft had appointed six men to the Court 

during his tenure as President, and appears to have been principally 

responsible for selecting three nominees, including himself as Chief 

Justice, for President Harding.31 More recently, Chief Justice Burger is 

known at least to have supported the nominations of Associate Justices 

Blackmun and Powell.32

Where Presidents have turned to Cabinet officers for advice, it is 

common for the Attorney General to play a major role both in suggesting and in evaluating nominees. George Washington initiated the practice by asking Edmond Randolph to prepare a list of candidates for the 

bench.33 In recent decades, Attorneys General Cummings and Biddle 

(for FDR), Brownell (for Eisenhower), Robert Kennedy (for John 

Kennedy), Mitchell (for Nixon), and Levi (for Ford) all performed 

significant “screening” functions during the nominations process. However, just as no legal provision limits presidential criteria for candidate 

selection, there are no formal limitations or requirements binding the 

President to any particular system of identifying Supreme Court candidates.34

B. Evaluation o f Nominees (Herein, the Roles o f the Department o f Justice

and o f the American Bar Association)

Whoever is responsible for identifying plausible candidates, the function remains of evaluating the serious contenders according to the 

President’s criteria. In 1789, when the Judiciary Act established a 

federal bench comprising 19 judges, the evaluation process could rely 

with some success on the personal knowledge of the President and of 

his close advisers. Even for a nine-member Supreme Court, however, 

this is no longer a wholly satisfactory option. The far greater pool of 

available talent today and the intensity of public scrutiny to which 

nominees are currently subjected make it desirable to follow a more 

rigorous and dependable information-gathering process.

A tradition is now well established of active Attorney General and 

Department of Justice participation in the process of evaluating Supreme Court nominees. The exact pattern of participation has varied 

with different Presidents. The Attorney General, with whatever De30 A braham at 104.

31 A braham at 21, 155.

32 W oodw ard and A rm strong at 87, 160.

33 Rogers at 38.

34 F o r a time, in the early 19th century, the D epartm ent of Stale was assigned the function of 

offering the President recommendations concerning all appointments. Even after Attorney General 

Cushing in 1853 reassumed the assignment for his office with respect to judicial appointments, 

A ttorney G eneral Bates, under Lincoln, was still able to complain that the Secretary of the Treasury 

had been instrumental in making many appointm ents “without any reference to legal and judicial 

qualifications." Rogers at 39.

468
partment assistance he seeks, may initiate a study of potential nominees. 

The Department also plays a special role in marshalling the recommendations of private groups and individuals, most notably—since the Eisenhower Administration—of the American Bar Association (ABA) 

Standing Committee on Federal Judiciary (the ABA Committee).

The practice of soliciting formal ABA views on Supreme Court 

nominations began with President Eisenhower’s 1956 nomination of 

Judge William J. Brennan, Jr. to replace Justice Minton. The President 

had assigned to Attorney General Brownell and the Department of 

Justice the task of recommending a nominee to meet four specific 

criteria: an exemplary personal and professional reputation for legal and 

community leadership; good health; relative youth; and ABA “recognition.” He also expressed a preference for giving most serious consideration to the promotion of an outstanding lower court judge.35 

Brownell, to whom Judge Brennan was strongly recommended by New 

jersey’s Chief Justice Vanderbilt, the New Jersey Bar Association, the 

American Judicature Society, and a host of other organizations,36 submitted Brennan’s name to the Federal Bureau of Investigation for a fullfield investigation and to the ABA Committee for its assessment of 

professional qualifications. The results of the ABA and FBI investigations were presented to the Attorney General for his consideration and 

eventual review with the President.37

FBI full-field checks on proposed nominees are routine. Since the 

Brennan appointment, however, the mode of ABA input has varied 

from nomination to nomination. Through the Johnson Administration, 

it was typical practice to afford the ABA a very brief investigation 

period prior to the announcement of a nomination. The resulting time 

pressure apparently made it difficult for the ABA to rely successfully, 

in its view, on any precise system of ranking nominees. For example, 

with Justice Goldberg’s nomination in 1962, the Committee decided to 

abandon any statement seeming to rank or quantify the nominee’s 

suitability, and instead offered the statement that the nominee was 

“highly acceptable from the point of view of professional qualifications.” 38

For undisclosed reasons, President Nixon abandoned the practice of 

consulting the ABA prior to announcing his nominees, a decision that, 

with respect to the President’s attempts to find a successor to Justice 

Fortas, seemingly contributed to controversial results both for the 

President and for the ABA. The ABA Committee, like the general 

public, learned of the Nixon nominations only from the President’s 

announcements. With the invitation of the Senate Judiciary Committee,

35 Rogers at 39-40; Abraham at 235.

36 Abraham at 245.

37 Rogers at 40.

38 Walsh at 556.

469
the ABA Committee first reviewed the qualifications of Judge Clement

F. Haynsworth, Jr., the first Nixon nominee to the Fortas seat. The 

Committee unanimously found Haynsworth “highly qualified” for the 

post, a conclusion that it later ratified only 8-4 after public disclosures 

during the confirmation process indicated possible insensitivity on 

Judge Haynsworth’s part to financial conflicts of interest.

When the Senate defeated the Haynsworth nomination, President 

Nixon, acting again on the recommendation of Attorney General 

Mitchell, nominated Judge G. Harrold Carswell, a former U.S. district 

judge in the Northern District of Florida who had recently been appointed to the U.S. Court of Appeals for the Fifth Circuit. Mitchell was 

reported to have said of Carswell, “He is almost too good to be 

true.” 39 Sensitized by the Haynsworth debate and apparently hoping 

to avoid dissent on the degree of a nominee’s suitability, the ABA 

Committee, in assessing Carswell’s background, reverted to a “qualified”/ “not qualified” system of evaluation, and reported Carswell 

“qualified.” When Carswell, during the confirmation process, was attacked for mediocre judicial talent and hostility to civil rights, and 

ultimately defeated, the prestige of the ABA also suffered, although 

ABA Committee Chairman Lawrence E. Walsh defended the Committee’s assessment in light of its investigation into Carswell’s performance 

on the Fifth Circuit.40

President Nixon again did not consult the ABA Committee before 

announcing his third nominee to the Fortas seat, Judge Harry A. 

Blackmun of the U.S. Court of Appeals for the Eighth Circuit. Chief 

Justice Burger supported Blackmun’s nomination, and the candidate 

was interviewed by Attorney General Mitchell and the Assistant Attorneys General in charge of the Office of Legal Counsel and the Tax 

Division.41 The ABA Committee again conducted a post-announcement evaluation. It adopted a “not qualified”/ “not opposed”/ “meets 

high standards of integrity, judicial temperament, and professional competence” system of ranking, seeking to avoid the appearance of a 

plenary endorsement for a merely acceptable candidate and emphasizing the assertedly nonideological character of its endorsement for a 

highly qualified candidate.42 The ABA Committee turned in its most 

extensive report ever on a Supreme Court nominee for Judge 

Blackmun, finding that he met “high standards of integrity, judicial 

temperament, and professional competence.” 43 The Senate unanimously confirmed the Blackmun nomination on May 12, 1970.

These events, however, did not conclude the Nixon Administration’s 

history of difficulties with the ABA. In September, 1971, Justices Black

38 A braham at 6.

40 W alsh at 556-57.

41 W oodw ard and A rm strong at 86.

■« W alsh at 560.

« W alsh at 560.

470
and Harlan resigned, leaving the President the task of replacing two of 

the Court’s most highly esteemed members. Attorney General Mitchell 

had written in July, 1970, to ABA Committee Chairman Walsh that the 

Administration would henceforth submit lists of Supreme Court candidates to the Committee for its evaluation prior to nomination, an 

announcement that won high acclaim in light of the ABA’s rigorous 

work on the Blackmun nomination.44 The President’s first suggested 

candidate was Rep. Richard H. Poff of Virginia, who received the 

Committee’s highest recommendation, but the President withdrew his 

name from consideration when the press reported his past anti-civil 

rights statements.

The Administration’s next submission was a list of six names, including California Court of Appeals Judge Mildred Lillie, Arkansas municipal bond lawyer Herschel H. Friday, D.C. Superior Court Judge Sylvia 

Bacon, Sen. Robert C. Byrd of West Virginia, and Judges Charles 

Clark and Paul H. Roney of the U.S. Court of Appeals for the Fifth 

Circuit. The first two were the President’s top choices—Mr. Friday 

was a close friend of Attorney General Mitchell and had been recommended by Chief Justice Burger and Justice Blackmun—and the Committee devoted almost all its investigative work to them.45 The Attorney General had recommended the submission of their names notwithstanding reservations expressed by White House Counsel John Dean 

and Assistant Attorney General Rehnquist concerning their judicial 

experience and lack of constitutional law background.46 The results 

were a unanimous vote of “not qualified” for Judge Lillie and a 6-6 tie 

between “not qualified” and “not opposed” for Mr. Friday. News of 

the ABA actions reached the press within hours of its report to the 

Attorney General; the ABA urged the President to “add some people 

with stature” to his list.47 The Administration informed the ABA in a 

letter from the Attorney General to Chairman Walsh that it could no 

longer rely on the confidentiality of the Committee, and would return 

to its practice of submitting nominations directly to the Senate.48

According to two commentators, Attorney General Mitchell acted 

prior to the ABA Committee’s formal vote to solicit the acceptance by 

another candidate, former ABA president Lewis F. Powell, Jr., of his 

nomination to the Black seat.49 Mitchell and Deputy Attorney General 

Kleindienst recommended to the President his eventual nominee for the 

Harlan seat, Assistant Attorney General Rehnquist.50 Subsequent to the

44 Abraham at 28.

45 Abraham at 10, 29.

46 W oodward and A rm strong at 159.

47 Abraham at 10.

49 Abraham at 30.

49 W oodward and A rm strong at 160.

50 W oodward and A rm strong at 161.

471
President’s announcement of his choices, the ABA Committee voted 

unanimously that Powell met “high standards of integrity, judicial temperament, and professional competence.” Eight members of the Committee voted the same endorsement of Rehnquist, with four voting “not 

opposed.” Powell was confirmed by the Senate almost immediately, 

and Rehnquist, within several weeks.

In contrast to this stormy history, the Department of Justice and the 

ABA enjoyed a smooth relationship during the process of evaluating 

candidates in 1975 to succeed Justice William O. Douglas. President 

Ford and Attorney General Levi returned to the practice of submitting 

names to the Committee for its evaluation prior to nomination. On the 

day of Douglas’ retirement, Levi submitted a list of candidates to the 

ABA Committee.51 The Committee unanimously gave Levi’s first 

choice, Judge John Paul Stevens of Chicago, its highest rating. Judge 

Stevens was subsequently nominated and confirmed without difficulty.

These events underscore significant questions of how best to make 

use of the assistance and resources of private parties in the evaluation of 

Supreme Court candidates and, at the same time, maintain the full 

scope of presidential discretion that the Constitution provides for the 

nomination of Supreme Court Justices. ABA assistance can undoubtedly be helpful in the evaluation of Supreme Court candidates, although how best to accomplish its role has itself been a subject of long 

debate by the ABA Committee. The Committee describes its function 

as limited to an examination of “professional competence, judicial temperament, and integrity,” 52 about which it is undoubtedly able to 

express an educated point of view. As time permits, the Committee’s 

investigation includes interviews with judges, scholars, lawyers, public 

officials, and other parties likely to have information regarding a nominee’s qualifications, plus a review of the nominee’s writings by teams of 

law school professors and practicing lawyers. The ABA Committee’s 

conclusions based on this kind of thorough study may be a useful guide 

to the President or his advisers in applying the President’s criteria 

during the nomination process.

However, extensive ABA input, especially before nomination, may 

lead to criticism that an organization that is not responsible to any 

public political process is exercising undue influence in the presidential 

selection of nominees.53 The ABA Committee currently comprises 14 

members—one member at-large and one practicing lawyer from each of 

the geographic areas covered by the 11 judicial circuits, except for the 

Fifth and Ninth, which areas—because of their size—have two members each. There can be no assurance, however, that it fully represents 

the American public, or even the American bar, given that nearly half

M Am erican Bar Association at 2.

52 American Bar Association at 2.

53 A braham ait 23; Grossm an at 212-15; M urphy and Pritchett at 76-77; Schm idhauser at 28-33.

472
the lawyers in the United States do not belong to the ABA. Neither is 

there any government control over the exhaustiveness of its survey or 

the objectivity of its evaluation. Though consultation with the ABA 

prior to nomination may confer advantages in the evaluation process, it 

may risk the public’s perception that the selection process for the least 

politically accountable branch of government is itself being removed a 

step from public accountability.54

What is not open to question is that, whatever sources are consulted 

prior to nomination, the pre-nomination investigation of any nominee 

should be deep, broad, and disinterested enough to assure an informed 

evaluation of the nominee’s professional qualifications, temperament, 

health, and integrity. So long as the goals of the investigative process 

and the advisory roles of the participants are clearly defined, it should 

be possible to avoid the difficulties encountered during the Nixon 

nominations and make the best possible use of information from all 

sources.

IV. The Confirmation Process

Once the processes of candidate evaluation produce a nominee, the 

President submits his choice for the “advice and consent” of the Senate. 

For the first half of this century, it appeared that the Senate’s role in 

materially influencing the selection of a Justice had ended; its confirmation of presidential nominees was virtually automatic.55 Though equal 

participation by the Senate and the President in choosing Justices may 

be gone, however, the Senate has significantly reasserted its hand in the 

selection of Justices since 1968. Since the conditional resignation of 

Earl Warren from the Chief Justiceship, four presidential nominations 

for the Chief or an Associate Justiceship have been withdrawn or were 

defeated at least in part because of Senate action.56

The Senate’s procedure following nomination is straightforward. 

Except in the cases of two ex-Senators, the Senate has always referred 

Supreme Court nominations to the Senate Judiciary Committee. Since

54 It has been debated since 1973 w hether the reporting and other “sunshine’* provisions of the 

Federal Advisory Committee Act, 5 U.S.C. App. § 10, apply to the ABA Committee in its role of 

advising this Department. The Office o f Legal Counsel concluded in 1973 that the A ct does cover the 

ABA Committee, although the practical effects o f such coverage on the operation o f the Committee 

would be limited. This position was affirmed in a February, 1974, letter from A ttorney G eneral Saxbe 

to the. ABA Committee. A fter further correspondence. A ttorney General Saxbe informed the C om m ittee in October, 1974, that O LC , under then Assistant A ttorney General Scalia, had reexamined the 

issue and found that the A ct did not cover the ABA Committee.

95 Prior to 1968, the Senate failed only once in this century to confirm a presidential nomination to 

the Supreme C ourt: President H oover’s 1930 nomination o f Judge John J. Parker to be an Associate 

Justice. Swindler at S36.

56 Justice Fortas w ithdrew his nomination for the C hief Justiceship in O ctober, 1968, after the 

Senate failed to end a filibuster preventing a vote on his elevation. His action eliminated the 

prospective vacancy to which President Johnson had nominated Judge Hom er T hornberry o f the 

Fifth Circuit. In 1969, the Senate defeated President Nixon's first nominee to succeed Justice Fortas, 

Judge Clement F. Haynsworth, Jr. In 1970, it defeated his second nominee. Judge G. H arrold 

Carswell. Abraham at 266; Sw indler at 536.

473
President Coolidge’s nomination in 1925 of Harlan Fiske Stone to an 

Associate Justiceship, the committee has usually interviewed the nominee in person.57 It is modern practice, since President Roosevelt’s 1938 

nomination of Stanley Reed, for the committee to hold public hearings 

on the nomination.58 If the committee recommends approval, as it 

invariably has in recent decades, the nomination is sent to the floor for 

debate and an eventual vote by the entire Senate. Confirmation requires 

a majority vote.

The factors that may affect the results of a Senate confirmation vote 

are innumerable; long and complex explanations have been written 

concerning the politics of the confirmation process. Although the history is fascinating, this memo will only briefly consider the politics of 

confirmation to underline the one relevant and perhaps obvious point 

that Senators’ opposition to a candidate may not relate in any way to 

the President’s criteria for choosing a suitable candidate for the Court. 

This is understandable because Senators may well decide their votes 

based on partisanship, individual animosity, opposition to a nomination 

by constituent or special interest groups, ideological differences, or 

intraparty politics.59

One commentator has usefully divided the reasons for Senate opposition to a candidate into three categories: reasons related to the character, ability, or integrity of the candidate; reasons related to partisanship 

or the candidate’s ideology; and reasons related to a candidate’s prior 

identification with the unpopular side of a significant political controversy.60 The stronger the opposition to a candidate, the more likely the 

nominee is to face detractors on all of these grounds.

Relatively few nominees have been credibly opposed on grounds of 

outright inability. Perhaps the nominee to fare worst in this respect was 

George H. Williams, an undistinguished lawyer nominated unsuccessfully by President Grant in 1873. Most recently, Judge Carswell was 

opposed in part because of alleged lack o f ability, although it would be 

difficult to determine the relative importance to his defeat of the Senate’s evaluation of his judicial performance and its reaction to his 

record of apparent insensitivity to civil rights.

Opposition on ethical grounds was a factor in the defeat of both the 

nomination of Justice Fortas to be Chief Justice and the nomination of 

Judge Haynsworth to succeed Justice Fortas. The filibuster against

57 Stone's nomination was controversial chiefly because, having succeeded a Harding appointee, 

H arry M. Daugherty, as A ttorney General, he refused to drop a D epartm ent of Justice case brought 

by D augherty, a figure in the Teapot Dom e scandal, against Senator W heeler o f Montana. Frank at 

491.

58 T he Judiciary Committee decided to enci its practice o f conducting its nomination debates 

entirely in executive session after the controversy engendered by public revelation of the past Ku Klux 

Klan membership of Justice Hugo Black, whose nomination it had approved by a vote o f 13-4 in 1937. 

Abraham at 201; Ashby at S3.

59 See generally GofT; Swindler.

60 Ashby at 29-31.

474
Fortas may have succeeded chiefly because of opposition to his judicial 

philosophy and opposition to President Johnson as a lameduck President in 1968. However, Fortas was also opposed for accepting paid 

employment by American University while on the Court and for maintaining a close advisory relationship with President Johnson, which 

seemed to some an inappropriate breach of separation of powers.61 

When Fortas later resigned under charges of ethical insensitivity (he 

had received and returned, while on the Court, fees from investor 

Louis Wolfson and the Wolfson family’s foundation), President Nixon’s 

first designated successor, Judge Haynsworth, faced opposition based 

on his participation in lower court cases in which he arguably had or 

created a financial conflict of interest.62

Considerations of personal or judicial ideology were clearly grounds 

for Senate opposition to the nominations of Justice Fortas and Judges 

Haynsworth and Carswell. Senators opposed Fortas’ liberal stands on 

desegregation, criminal procedure, and free speech. Civil rights and 

labor groups attacked the allegedly hostile positions of Judge 

Haynsworth. Judge Carswell’s opponents emphasized his statement in 

support of “the principles of White Supremacy” during his 1948 campaign for the Georgia legislature.63

Partisan opposition, whether or not “ideological,” may also defeat a 

candidate. Of the 14 presidents whose nominees were rejected or otherwise “killed” by the Senate, six—John Quincy Adams, Tyler, Polk, 

Fillmore, Buchanan, and Andrew Johnson—held office in the face of 

overwhelming congressional opposition. At the times they lost their 

respective nomination fights, it is doubtful that they could have secured 

the nomination of almost any individual to the Court.

Interestingly, the most “venerable” ground historically for Senate 

opposition to a nominee is the nominee’s prior identification with the 

losing side in a national controversy. The first rejected nomination was 

that of John Rutledge for Chief Justice in 1795, based largely on his 

attack on the Jay Treaty, which the Federalists vigorously supported. 

No one-issue debate has loomed as large in the defeat of any Supreme 

Court nominee in this century.

The role of the Attorney General and the Department of Justice in 

the appointment process has generally been to identify and evaluate 

candidates according to the President’s criteria. Department of Justice 

witnesses, however, have occasionally played a role in confirmation 

hearings either to elaborate on the Administration’s evaluation of a

61 Ashby at 338-41.

62 Abraham at 4-5; Ashby, at 387-88.

93 Ideological opposition to a candidate may, of course, backfire. T he overall career record on civil 

rights and labor issues o f Fourth Circuit Judge John J. Parker, whose Suprem e C ourt nomination was 

defeated in 1930, was undoubtedly m ore progressive or liberal then the Supreme C ourt voting record 

o f President Hoover's subsequent successful nominee, Owen J. Roberts, although Parker’s nomination 

was defeated primarily through the pressure of labor and civil rights groups. Schubert at 49-50.

475
nominee’s record or to comment on legal issues raised by a particular 

appointment. Not including former Assistant Attorney General 

Rehnquist’s testimony at his own confirmation hearing, Department of 

Justice Representatives have testified with respect to only two of the 

nine persons nominated to the Supreme Court since 1968. Attorney 

General Levi testified in support of the 1975 nomination of Judge John 

Paul Stevens. Nomination o f John Paul Stevens to be a Justice o f the

Supreme Court: Hearings Before the Senate Comm, on the Judiciary, 94th 

Cong., 1st Sess. 3 (1975). During the hearings on Justice Fortas’ nomination to the Chief Justiceship, Attorney General Clark testified regarding whether Chief Justice Warren’s conditional resignation legally created a vacancy on the Court, Nominations o f Abe Fortas and Homer

Thornberry: Hearings Before the Senate Comm, on the Judiciary, 90th 

Cong., 2d Sess. 8 (1968), and Deputy Attorney General Warren Christopher testified regarding a memorandum he had prepared at the request of committee member Senator Hart concerning the meaning and 

impact of the Supreme Court opinions of Justice Fortas. Id., at 315.64

V. Conclusion: The Appointment Process and Post-Appointment

Performance

Unsurprisingly, the measures of success on the Court vary as widely 

as the criteria for selection.65 In considering what process of candidate 

selection is most likely to yield a successful Justice, it must first be 

borne in mind that, like other virtues, judicial excellence is significantly 

in the eye of the beholder, varying with time and place.

If a President’s measure of success is the predictability of his appointee’s decisions, no selection process can guarantee a happy result. 

Even a President’s intimate familiarity with the opinions of a nominee 

cannot assure that their views will coincide as the appointed Justice 

grows in his position and faces novel questions unforeseen at the time 

of his appointment. There are notable examples of presidential dissatisfaction with the performance of an appointee, e.g., Madison, with the 

Federalist Story; Teddy Roosevelt, with Holmes’ vote in the Northern

6* A D epartm ent of Justice A ttorney, N orman Knopf, testified under subpoena in a private capacity 

during the hearings on Judge C arsw ell concerning his experiences with Judge Carswell while a 

member o f the Law Students Civil Rights Research Council, prior to his employment with the 

D epartm ent of Justice. George Harrold Carswell: Hearings Before the Senate Comm, on the Judiciary,

91st Cong., 2d Sess. 174 (1970).

65 T w o com m entators have written that success on the Court is:

the result o f several qualities in combination: scholarship; legal learning and analytical 

powers; craftsmanship and technique; wide general knowledge and learning; character, 

moral integrity and impartiality; diligence and industry; the ability to express oneself 

with clarity, logic and compelling force; openness to change; courage to take unpopular positions; dedication to the C ourt as an institution and to the office o f Supreme 

Court Justice; ability to carry a proportionate share of the C ourt's responsibility in 

opinion writing; and finally, the quality o f statesmanship.

Dennis, Overcoming Occupational Heredity at the Supreme Court. 66 A.B.A. J. 41, 43 (1980) (quoting A. 

Blaustein and R. M ersky, The First One Hundred Justices: Statistical Studies o f the Supreme Court o f the

United States (\91%)).

476
Securities case; Wilson, with the conservative McReynolds; and Eisenhower, with Warren.66

It is likely that those Presidents who measured success more by the 

craftsmanship of their appointees were better pleased than those counting on predictable votes. The average Justice has been one who has 

reliably made substantial contributions to acceptable adjudications of 

difficult issues over a significant period of time. Not every Justice, of 

course, possesses the creativity, intellect, political acumen, and perhaps 

longevity, to achieve not only excellence, but “greatness.” However, 

those candidates with the potential to be truly exceptional and extraordinary rarely stand out clearly from the pool of excellent candidates, 

and a process seeking to identify the “potentially great” might prove 

more whimsical than practical. While the eminence of John Marshall or 

Brandeis was perhaps predictable, no prognosticator could confidently 

have predicted the careers of Harlan Fiske Stone, Hugo Black, or Earl 

Warren. Whether a process aimed at finding “great” future jurists 

would have focused on them originally cannot be known.

History gives much reason for optimism that, whatever the President’s criteria, a potentially successful member of the Court meeting 

those criteria can be found with proper care. A clear set of standards, 

input from numerous sources, a broad-based search for candidates, and 

time enough for a thorough evaluation are the elements necessary and 

sufficient to find the appropriate nominee.

APPENDIX

DATA ON SUPREME COURT APPOINTMENTS

1. Succession of the Justices of the Supreme Court 

of the United States

2. Supreme Court Nominations Rejected or Refused

3. Prior Judicial Experience of U.S. Supreme Court 

Justices and Their Subsequent Service

4. Occupations of Supreme Court Designees at Time 

of Appointment

5. Acknowledged Religion of the 100 Individual 

Justices of the Supreme Court (at time of appointment)

6. The 31 States From Which the 103 Supreme 

Court Appointments Were Made

7. Occupational Backgrounds of Supreme Court 

Nominees Since 1937

66 Abraham at 62-63.

477

Table 1

TA B LE O F SUCCESSION O F TH E JUSTICES O F TH E SUPREME C O UR T O F THE U N ITE D STATES 

Showing Yean « f A d n t Srrvict on the Court

Judiciary A il of I W provided Im a Chief imtrar and 5 AtmciaU Juttim

John Jay PRO-1795 John Ruttedpr 

17*9-17*1

William Cuihina 

1 719-IRIO Jamn Irrdell 

1790- 1 7<M

Jamet Vihon 

1 7R9.1 **a

John blaa 

|7*9|7%

Jithn R u IM p 179$ 

Olr**r ElliworlH

|79t».»799

Thofflu JofcfKon

I79|.|7<*J 

William Patmon 

|79t.|ROh

Alfred Moorr

Buthrad Wathtnfton 

I79R.1RJ9

Samuel Oiaw 

|79*-|RII

John M inliill 

1K0|.»R»5 Hrnry B. 1 mngMnn 

IROhlR.'.l

William Johnwn 

IftfM IR U

J w p h Story 

IR II1 M 5 C.jhnrl Duvil 

INI M «»*

Smith Thnmpvw 

l* M IK4I

IWnry Baldwin

Rnfrr | Taney 

IN 1ft |N*4

lamn M Waynr

IN.UIRftT

IK10-IH44

fillip P Rirhftii 

i m Wiina i

Samuel Nchon 

i M M r ;

Levi Wpndhurv 

|R4*n |RH

Rnhert ( (.riei 

IR 4t.lR ’ i)

Peter V Dan»1 

IH4I IMM)

Beniamin R Curti* 

IK M IR 5 ’

Nathan Clifford 1

Z. 5

3 S

Salmon P Chav 

i H M i n

s * i s

a ? 

\ \

8 « Wilham Stroma

Samuel F Millet 

|Bfi ’ Ht'Ht

M m non R V m « 

IR74-IRRR

Ward Hunt 

ir ?m r m :

; s

3 ;

Is» e

1*70 IRRU 

William B Wood*

MelmllrW Fuller 

IRRR-1910

Samuel Blatchford 

IHRJIRUI

Horave C n y 

1RRM90.' M i

•- s

" c

iNRtyiRR?'

Lw iim O C Lamar 

IRRN IR41 Hrnry B Brown

Edward 0 White

J IR94 

<1 1 9 |0 -l»:i <

Howell E Jk I w i

IR9.1 |R«H 

Rufus W Peikham 

|R<*S 191)9

IR90l90n

Edward D Vhiic Wtdti V n Dt*afilrr

Oti»tr Wendrll H o inn

i«* o :i9 i:

M ono H Lurtm 

|909.|g<4

William H Moody 

|9Qf> 1910

lovph R Lamar

JIR94 

( J 1910-19:1

1910-19.17

Jam nC McRrynnMt 

I9 I4 I9 4 I

|9|(v I9ir*

Loun D Brandrn

lvtn-1919

William H Taft 

I9.M-I9.M) Benjamin N Cardoro 

I9 IM 9 JH 

F rln Frankfurt"

I 9 i9 i« r ,j

1910-1941

Hugo L BIk I

|917. | 'IT ( William O Doufta* 

1919

J I9JS * 

( J 1941 |94A

Fnd M Vim m

I94A-I9JJ

Jamn F Byfnei 

1941.1942 

Wiley Rutlrd^ 

|V4.M*49 

Sherman Hinton

Karl V a rm

|9<M<*9

" |<*4U.|«<*

Willim J Brennan 

I9*h

Warrrn E Burfrr 

|9fi9

Arthur J ( « l d M f 

! % M % <

Ahr Fortas 

I9M -I9A9

1 r a n E Powell. Jt

l« 7 : |U70

'Succeeded by Justice John Paul Stevens. December 19, 1975.

From Abraham at 292-93.
Febnwy. 1973

TABLE OF SUCCESSION O F THF JUSTICES O F THE SUPtEM E COURT O F TH E UNITED STATES

j c l >11

i ii'-J

u!

T tw m a Todd 

1807-1826

| '

1

t

g . i

i i i

=11 

“ o E

| 21 1

i l l

2 1 |

Robert Tum ble 

John M k U ti)

x

o J

w<

« !o 

S i

a r

X

8

e

5 i i 

0

John Catron 

IR tT -lftM

John M cK uilty 

1 8 V 1852

o

<

6

« -

o !

5*

5 S

'S*

“ 1

John A Campbell 

IN V t lA M

i i

&

Noah H S va yn r 

1*62 1*81 h |

i l l

O and Dana 

I8 6 M 8 7 7 Stephen J Field 

1863-1897

!

I -

5

- Joaepto P. Bradley — 

1870-1892 n i * 

?«5 John M Hartan

l«-r? .| Q i i

Stanley Matthew* 

1M I I 889

D and J B i t x i

1889-19)0

- ^ 

* e

O

<

ioaeph McKenna 

1898-192)

C r a r p Shine. Jr 

1892 1903

Chartei E Hughes

W ilK «n R. O n 

>903-1922

1910-1916

Jofin H Clarkr 

19(^-1922

Mahkm Pitney 

19121922

GfOfft Swlhrrland -

1922-19,18 F d v if d T Sanford

I9 2 .V I9 J0 H irlt* F . Slone 

J 192)

C J 1941-1946

Pierce Bvftet

1922-1939

Stanley F Heed 

I9 JR I9 S 7

I9 .W 19 4 5

Frank Murphy

H irn M H . Burton 

I9 4 J-I9 M I

Robert H . Jact ton 

1941-19)4

Tom C. C M 

1949-1967

C h artn E Whittaker

19)7-1062 Poller Stewart 

1959

John M Htrtan

1955-1971

Byron It While

|9f>2

Thvrfo od Manhall 

1967

Wm H . Rrhnqim t 

197’

1789

IT9 0

1800

t l to

1820

1 8)0

1840

1 8)0

18*0

1870

1880

1890

1900

1910

1920

1930

1940

1950

l«6 0

1970

1980

478
T able 2.— S u p r e m e C o u r t N om inations R ejected o r R efused

(In the following tabulation, details on the nominations to the Supreme Court of the United States 

which were declined by the nominees or acted on adversely by the Senate have been summarized. 

The political composition of the Senate at ihc time of such action is shown by major parlies only: 

F.— Federalist; A .-F.—Anti-Federalist; D.R. — D emocratic Republican: N.R. — National Republican; 

W .—Whig; D .—Democratic; R. —Republican.]

President and 

Supreme Court 

nominee

G eorge W ashington 

Robert H. Harrison 

William Paterson1 

John Rutledge, 

C J .2 

William Cushing,

C.J.

John Adams

John Jay, C .J...........

James Madison

Levi Lincoln...........

Alexander W olcott.

John Q. A dam s.......

John Q. Adams

John J. C rittenden.. 

A ndrew Jack'son 

Roger B. T aneyn ....

William S m ith.........

John Tyler 

John C. Spencer 

Reuben H.

W alworth 

Edw ard K in g..........

John M. R ea d .........

James K. Polk 

G eorge W. 

W oodward 

Millard Fillmore 

Edw ard A.

Bradford 

G eorge E. B adger.. 

William C. Micou... 

James Buchanan 

Jeremiah S. B lack... 

Andrew Johnson

Henry S tan b ery ......

Ulysses S. Grant 

Ebenezer R. Hoar... 

Edwin M. S tanton..

G eorge H.

Williams, C.J. 

Caleb Cushing, C.J. 

R utherford B. Hayes 

Stanley M atthews4 . 

C hester A. A rthur 

Roscoe C onkling.... 

G rover Cleveland 

William B.

Hom blow er 

W heeler H. 

Peckham 

Herbert H oover 

John J. P arker.........

Senate

composition

Date of 

nomination

Action on 

nomination Nature of action

F. 17; A.-F. 9...

F. 17; A.-F. 13.

F. 1^; A.-F. 13.

F. 19; A.-F. 13.

F. 19; D.R. 13.

D.R. 28; F 6... 

D.R. 28; F. 6... 

D.R. 28; F. 6...

Sept. 26, 1789.... 

Feb. 23, 1793.....

Sept. 24. 1789....

Feb. 27. 1793.....

July I. 1795 ! Dec. 15. 1795 

Nov. 5. 1795 

Jan. 26. 1796...... Jan. 27, 1796..

Dec. 18. 1800...

Jan. 2, 1811... 

Feb. 4, 1811... 

Feb. 21. 1811.

D.R. 28; N.R. 20..! Dec. 17, 1828...

D. 20; W. 20 . 

D. 30; W. 18 .

W. 28; D. 25 . 

W. 28; D. 25 .

W. 28; D. 25 . 

W. 28; D. 25 .

Jan. 15. 1835.. 

Mar. 3, 1837..

Jan. 9, 1844......

Mar. 13, 1844..

June 5. 1844.. 

Dec. 4. 1844. 

Feb. 7, 1845..

D. 31; W. 2 5 ......... Dec. 23. 1845 .

D. 35; W. 2 4 ......... Aug. 16. 1852.

D. 35; W. 2 4 ......... | Jan. 10. 1853....

D. 35; W. 2 4 .........1 Feb. 24. 1853..

Dec. 19. 1800....

Jan. 13, 1811.. 

Feb. 13, 1811. 

Feb. 22, 1811.

Feb. 12, 1829..

Mar. 3, 1835. 

Mar. 8, 1837.

Jan. 31, 1844.. 

Jan. 15. 1845.. 

Jan. 27, 1845.. 

Jan. 15, 1845.. 

Feb. 7, 1845...

Jan. 22, 1846..

D. 36; R. 26.

R. 36; D. 26 .

R. 56; D. 11 . 

R. 56; D. II .

R. 49; D. 19.

R. 49; D. 19.

D. 42; R. 33.

R. 37; D. 37 .

D. 44; R. 38 .

D. 44; R. 38 .

Feb. 5, 1861.... 

Apr. 16, 1866..

Dec. 15. 1869... 

Dec. 20. 1869...

Dec. I. 1873 ......

Jan. 10. 1874......

Jan. 26, 1881......

Feb. 24, 1882....

Sept. 17. 1893.... 

Jan. 22, 1893......

R. 56: D. 3 9 .......... Mar. 21, 1930.... May 5, 1930....... Rejected. 39-41

Feb. 1 1. 1853.

Feb. 21. 1861.

Feb. 3. 1870.......

Dec. 20, 1869...

Jan. 8. 1874.... 

Jan. 13, 1874..

Mar. 2, 1882... 

Jan. 15, 1894... 

Feb. 16, 1894..

Confirmed; declined. 

W ithdrawn.

Rejected. 10-14.

Confirmed; declined.

Confirmed; declined.

Confirmed; declined. 

Rejected. 9-24. 

Confirm ed; declined.

“ Postponed. “

“ Postponed.” 24-21. 

Confirmed; declined.

Rejected, 21-26. 

"Postponed.“ 

W ithdrawn. 

“ Postponed.** 

W ithdrawn.

Nu action.

Rejected, 20-29.

No action.

“ Postponed."

No action.

Rejected, 25-26.

No action.

Rejected, 46-11. 

Confirmed (d. Dec.

24, 1869). 

W ithdrawn.

W ithdraw n.

No action.

Confirmed; declined. 

Rejected, 24-30. 

Rejected, 32-41.

479
T able 2.— S u p r e m e C o u r t N o m in a tio n s R eje c te d o r R efu se d — Continued

[In the following tabulation, details on the nominations to the Supreme Court of the United States 

which were declined by the nominees or acted on adversely by the Senate have been summarized. 

The political composition of the Senate at the time of such action is shown by major parties only: 

F.—Federalist: A .-F.—Anti-Federalist: D .R .—D em ocratic Republican; N .R .—National Republican: 

W .—Whig; D .—D em ocratic; R.—Republican.]

President and 

Supreme Court 

nominee

Senate

composition

D ate of 

nomination

Action on 

nomination Nature of action

Lyndon B. Johnson

Abe Fortas. C .J.........

Homer 

T hornberryr> 

Richard M. Nixon 

Clement F.

Haynsw orth, Jr.

G. Harrold 

Carswell

D. 64; R. 36 

D. 64; R. 36

D. 58; R. 42 

D. 58; R. 42

June 27. 1968 

June 27, 1968

Sept. 4, 1969......

Jan. 19. 1970

Oct. 7. 1968 

Oct. 7. 1968

Nov. 21, 1969... 

April 7, 1970

W ithdrawn,

W ithdrawn.

Rejected, 45-55. 

Rejected, 45-51.

1 Paterson's name was inadvertently submitted before his term as Senator had expired, he having 

been a member of the Senate which created the Court positions under the Judiciary Act of 1789, I 

Stat. 73.

2 Rutledge was commissioned, sworn in and presided over the August, 1795. Term of the Court.

3 The Senate rejected the nomination as an attem pt to control the Court through Taney's Cabinet 

affiliation. In the 1836 election, with six additional states voting, the D em ocrats won control of the 

Senate. Taney was renominated, this time for C hief Justice, and was confirmed. 29-15.

4 The nomination, caught between Dem ocratic control of the Senate and Senator Conkling’s fight 

with Hayes, was pigeonholed. In the new Senate. D em ocrats and Republicans were evenly divided. 

Garfield prom ptly resubmitted M atthew s' name, and he was confirmed. 24-23.

5 The Senate never reached this nomination, as it was tied to the effort to advance Fortas to Chief 

Justice.

From Swindler at 536.

T a b le 3.— P rior J u d ic ia l E x p e r ie n c e o f U.S. S u p r e m e C o u r t

J ustices a n d T h e ir S u b s e q u e n t S er v ic e

Justice Y ear N om inated

N um ber o f Y ears o f P rio r Judicial 

E xperience

Y ears o f 

S ervice on 

Suprem e 

Federal State T otal C ourt

J a y ‘......................... 1789 ......................... 0 2 2 6

J. R utledge**....... '1789 and 1795..... 0 6 6 “ 2

C u s h in g ................. 1789......................... 0 29 29 21

1789 .................... 0 0 0 9

1789................... .*... 0 11 11 7

1 790......................... 0 Vz Vz 9

1791......................... 0 l>/2 1 >/2 2

1793 ......................... 0 0 0 13

1796......................... 0 8 8 15

1796......................... 0 5 5 4

W a sh in g to n .......... 1798......................... 0 0 0 31

1799......................... 0 1 1 5

1801......................... 0 0 0 34 Vi

1804......................... 0 6 6 30

L iv in g sto n ............ 1806......................... 0 0 0 17

T o d d ....................... 1807......................... 0 6 6 20

S to ry ....................... 1811......................... 0 0 0 34

1811......................... 0 6 6 24

T h o m p s o n ............ 1823 ......................... 0 16 16 20

T rim b le .................. 1826......................... 9 2 11 2

480
T able 3.—Prior J udicial E xperience of U.S. Supreme Court

J ustices and T heir Subsequent Service—Continued

Justice Y ear N om inated

N um ber o f Y ears o f P rio r Judicial 

E xperience

Y ears of 

Service on 

Suprem e 

Federal State T otal C ourt

18 2 9......................... 0 6 6 32

1830......................... 0 0 0 14

1835 ......................... 0 5 5 32

1836......................... 0 0 0 28

1836 ......................... 6 2 8 5

1837 ......................... 0 10 10 28

1837 ......................... 0 0 0 15

1841......................... 4 0 0 19

1845 ......................... 0 22 22 27

1845 ......................... 0 6 6 6

1846......................... 0 13 13 24

1851......................... 0 0 0 6

1853 ......................... 0 0 0 8

C liffo rd .................. 1858 ......................... 0 0 0 23

1862 ......................... 0 0 0 19

1862......................... 0 0 0 28

1862......................... 0 14 14 15

F ie ld ..................... 1863......................... 0 6 6 34'/2

1864......................... 0 0 0 9

1870......................... 0 11 11 10

1870......................... 0 0 0 22

1872 ......................... 0 8 8 10

1874......................... 0 0 0

1

14

1877 ......................... 0 1 34

1880......................... 12 0 12 7

1881......................... 0 4 4 8

1881......................... 0 18 18 21

1882 ......................... 15 0 15 II

L. Q. C. L am ar... 1888 ......................... 0 0 0 5

1888.......................... 0 0 0 22

1889......................... 6 22 28 21

1890......................... 16 0 16 16

1892 ......................... 0 0 0 11

1893......................... 7 0 7 '2

W hite*................... ‘ 1894 and 1910..... 0 l'/2 P/2 27

1895......................... 0 9 9 14

1898 ......................... 5 0 5 27

1902......................... 0 20 20 1 30

1903......................... 4 3 7 19

1906......................... 0 0 0 4

1909........ ................ 16 10 26 5

'1910 and 1930..... 0 - 0

1

0 17

1910......................... 7 8 27

1910......................... 0 2 2 6

1912......................... 0 11 11 10

1914......................... 0 0 0 27

1916......................... 0 0 0 23

1916......................... 2 0 2 6

T a ft’........................ 1921......................... 8 5 13 9

1922......................... 0 0 0 16

B utler..................... 1922......................... 0 0 0 17

481
T able 3.—Prior J udicial E xperience of U.S. Supreme Court

J ustices and T heir Subsequent Service—Continued

Justice Y ear N om inated

N um ber o f Y ears o f P rior Judicial 

E xperience

Y ears o f 

S ervice on 

Suprem e 

Federal State T otal C ourt

1923 ......................... 14 0 14 7

'1923 and 1941..... 0 0 0 23

1930......................... 0 0 0 15

1932 ......................... 0 18 18 6

1937 ........................ 0 l ‘/2 l ‘/2 34

1937 ......................... 0 0 0 19

1939......................... 0 0 0 23

1939 ......................... 0 0 0 36

1940 ...................... 0 7 7 9

1 941......................... 0 0 0 1

1941 .......................... 0 0 0 13

1943 ......................... 4 0 4 6

1945......................... 0 0 0 13

1946......................... 5 0 5 7

1949 ........................ 0 0 0 18

1949......................... 8 0 8 7

1953 ......................... 0

1

0 0

1

16

1955 ......................... 0 16

1956 0 7 7

1957 ......................... 3 0 3 5

1958 4 0 4

W h ite ...................... 1962......................... 0 0 0

1962......................... 0 0 0 3

1965......................... 0 0 0 4

1967......................... 3 '/2 0 3'/2

1969......................... 13 0 13

1970......................... 11 0 11

1971 ....................... 0 0 0

1971......................... 0 0 0

1975 ....................... 5 0 5

‘ Indicates C h ief Justice and d ate o f his appointm ent o r prom otion.

* R utled g e's nom ination w as rejected by the Senate in D ecem b er 1795, but he had 

served as C h ief Justice und er a recess appointm ent for four m onths.

“ A ctually R utledge never served as A ssociate Justice, alth o u g h he did perform circuit 

du ty before his resignation in 1791.

n Indicates no judicial experience w hen appointed as Associate Justice.

From A braham at 45-47.

482
T ab le 4.— O c c u pa t io n s * o f S u p r e m e C o u r t D esig n ees a t T im e o f

A pp o in t m e n t +

Federal O fficeholder in E xecutive B ra n c h ...................................................................... 22

Judge o f Inferior Federal C o u r t........................................................................................... 21

Judge o f State C o u rt................................................................................................................. 21

Private Practice o f L a w .............................................................................................:............ 18

U.S. S en ato r.................................................................................................................................. 8

U.S. R epresentative............................................................... .................................................... 4

State G o v e rn o r............................................................................................................................ 3

Professor o f L a w ........................................................................................................................ 3

A ssociate Justice o f U.S. Suprem e C ourt " ..................................................................... 2

Justice o f the Perm anent C ourt o f International J u s tic e ............................................ 1

' M any o f the appointees had held a variety o f federal o r state offices, o r even both, 

prior to their selection.

* In general the appointm ents from state office are clustered at the beginning o f the 

C o u rt’s existence; those from federal office are m ore recent.

“ Justices W hite and Stone, w ho w ere promoted to the C hief Justiceship in 1910 and 

1930, respectively.

D oes not include Justice John Paul Stevens, appointed 1975, form erly a ju d g e o f the 

U.S. C ourt o f A ppeals for the Seventh C ircuit.

From A braham at 53.

T able 5.— A c k n o w l e d g e d R eligio n o f t h e 100 I n d iv id u a l

J ustices o f t h e S u p r e m e C o u r t (a t t im e o f a p p o in t m e n t )*

E p isco p alian ............................................................................................................................................. 26

Unspecified P ro testan t.......................................................................................................................... 24

P resbyterian.............................................................................................................................................. 17

Rom an C a th o lic ...................................................................................................................................... 6

U n itarian .................................................................................................................................................... 6

B ap tist........................................................................................................................................................ 5

J e w is h ......................................................................................................................................................... 5

M ethodist................................................................................................................................................... 4

C ongreg atio n alist................................................................................................................................... 3

D isciples o f C h r is t................................................................................................................................. 2

L u th e ra n .................................................................................................................................................... 1

Q uaker........................................................................................................................................................ ............ 1

100

•D o es not include Justice Jo h n Paul Stevens, appointed 1975.

From A braham at 57.

483
T ab le 6.— T h e 31 S t a t e s from W h ich t h e 103 S u p r e m e C o u r t

A pp o in t m e n t s W e r e M a d e

N ew Y o rk ................................................ 15

O h io ............................................................ 9

M a ssach u setts......................................... 8

V irg in ia ..................:................................. 7

T e n n e sse e ................................................. 6

P en nsylvania........................................... 6

K en tu ck y ..........

M a ry lan d ..........

N ew J e rs e y ......

S outh C arolina

C o n n e c tic u t......

G e o r g ia .............

A la b a m a ............

C a lifo rn ia .........

Illinois.................

L o u isian a ..........

M innesota ................................................. 2

N orth C a ro lin a ...................................... 2

Io w a ................................................................2

M ic h ig a n .................................................. ....2

N ew H am pshire.........................................1

M aine ......................................................... ....1

M ississippi....................................................1

K a n s a s...........................................................1

W yom ing .................................................. ....1

U ta h ................................................................1

T e x a s......................................................... ....1

In d ian a...........................................................I

M issouri.........................................................1

C o lo r a d o .................................................. ....1

A rizo n a..........................................................1

•Jo h n Paul Stevens, w h o received the 104th successful presidential appointm ent to the 

C o u rt, w as from Illinois, thus raising that S tate’s total to four.

From A braham at 56.

484
T a b l e 7.— O c c u p a t i o n a l B a c k g r o u n d s o f S u p r e m e C o u r t

N o m i n e e s S i n c e 1937

N om inee Last occupation before 

appointm ent M ajor occupation

D o u g la s.......................... Securities and E xchange 

Com m ission

L aw and teaching.

R eed ................................. Solicitor G en eral................. E xecutive branch and private practice.

Ja c k so n ........................... A tto rn ey G e n e ra l................ E xecutive branch and private practice.

S to n e ................................ Suprem e C ourt J u s tic e ..... E xecutive branch and private practice.

B yrnes.............................. U.S. S e n a to r......................... Politics.

M u rp h y........................... A tto rn ey G en eral................ Politics.

R u tle d g e ......................... A ppellate c o u r t................... L aw school dean and instructor.

B urton.............................. U.S. S e n a to r......................... Politics and private practice.

V in so n ............................ S ecretary o f T re a su ry ....... Politics.

M in to n ............................ A ppellate c o u r t................... Politics.

C la rk ................................ A tto rn ey G en era)................ E xecutive b ranch and private practice.

H a rla n .............................. A ppellate c o u r t................... P riv ate practice.

B ren n an .......................... State c o u r t............................. P riv ate practice and State judge.

S te w a rt........................... A ppellate c o u r t................... P riv ate practice.

W h itta k e r....................... A ppellate c o u r t................... P rivate practice.

W h ite ............................... A ssistant A ttorney 

G eneral

P rivate practice.

G o ld b e rg ........................ S ecretary o f L a b o r............ P rivate practice.

F o r ta s .............................. P riv ate p ra c tic e ................... P rivate practice w ith som e experience 

in executive branch.

M arshall.......................... Solicitor G e n e ra l................. N A A C P atto rn ey and F ederal bench.

T h o rn b e rry .................... A ppellate c o u r t................... Politics.

B urger.............................. A ppellate c o u r t................... P rivate practice.

H a y n s w o rth .................. A ppellate c o u r t................... P rivate practice.

C a rs w e ll......................... A ppellate c o u r t................... P rivate practice.

B lac k m u n ...................... A ppellate c o u r t................... P rivate practice.

P o w e ll............................ P rivate p ra c tic e ................... P rivate practice.

R e h n q u ist....................... A ssistant A tto rn ey 

G eneral

P rivate practice.

S te v e n s........................... A ppellate c o u r t................... P riv ate practice.

Adapted from A shby at 453.

485
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486