T H E S O T O M A Y O R A N D K A G A N N O M I N A T I O N S
A N D T H E U S S U P R E M E C O U R T
C H R I S T I N E N ...
Obama’s Supreme Court Nominations
•50 years old
•Solicitor General of the United States, 2009-2010
•Dean of Harvard Law Sc...
The Retirements
 Associate Justice John Paul Stevens
 Appointed by President Ford in 1975
 Third longest serving justic...
Presidential Strategy in Appointing Supreme Court Justices
 Informational & Political strategies
 Limit uncertainty abou...
Choosing a Nominee
There are certain factors that constrain all presidents in
making an appointment to the Supreme Court
...
The Recent Vacancies
 Justice Souter
 Early indications of his plan to retire came when he didn’t hire
law clerks for th...
Political Context in which Vacancies Arose
 Souter vacancy
 President had near super-majority in the Senate when he
chos...
What Can We Learn from the Sotomayor
Appointment?
 Justice Sonia Sotomayor
 Assistant District Attorney New York County ...
What Can We Learn from the Kagan
Appointment?
 Justice Elena Kagan
 University of Chicago Law School 1991-1995
 Clinton...
Important Implications of Changes on the Court
 Ideological Change?
 For the first time, there are no Protestants on the...
Potential for Vacancies in Near-Term
The Current Court:
 Ruth Bader Ginsburg, 77
 Antonin Scalia, Anthony Kennedy, 74
 ...
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Christine Nemacheck - Choosing Justices The Sotomayor and Kagan Nominations and the US Supreme Court

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  • Kagan confirmed in March 2009 to SG post—61-31 vote.
  • Ginsburg—appointed by Clinton 1993; 77 years old; January 2009—pancreatic cancer; 1999—colon cancer

    3rd longest serving justice behind William O. Douglas, Steven Field (1860s through late 1890s)—1 day short of tie w/ Field.

    Stevens is second oldest—Holmes was oldest—90 years 10 months
  • Traditional factors thought to be important fit into these categories to a large degree—competence (judicial or governmental experience), ideology or policy preferences, rewards (personal and/or political relationship), pursuit of political support, religion and region are clearly not as important as they once were
  • As of April 14—Obama approval ratings (per Gallup) is at 49%, disapproval is 45% (three-day rolling average)
  • Shortlist for Sotomayor Appointment (according to Totenberg, NPR 5.28.09):
    Judge Diane Wood
    SG Elena Kagan
    Judge Sonia Sotomayor
    Janet Napolitano, Dept. Homeland Security

    Selection process: managed by small group of senior advisers; this is substantially different than his preferred method on other issues.
    Biden is a key part of the process—former chair of the Senate Judiciary Committee
    Rahm Emanuel (WH CoS), counsel Greg Craig and deputy counsel Cassandra Butts (Obama’s classmate at Harvard Law)—this time around Bob Bauer, new White House Counsel, replaces Craig; Butts left shortly after Craig—Susan Davies is slated to handle day-to-day stuff w/ new appointment
    Obama has reached out to Republican and Democratic Senate leaders
  • Short List was likely Merrick Garland US COA District of Columbia, Diane Wood (7th Circuit), and Kagan

    Focused process—Bob Bauer replaced Greg Craig as WH Counsel and process managed by Susan Davies in WH Counsel’s office (previously Ron Klain and Cynthia Hogan from Biden’s staff and Stephanie Cutter who was brought in as a senior manager)

    Confirmation vote—only 5 republicans supported (compared to 8 supporting Sotomayor)—lowest number of yes votes for candidate ever appointed by a Democratic president—Ginsburg was confirmed 96-3—no way that Kagan is more liberal than Ginsburg

    Stevens announced his retirement April 9, the White House has rushed from one unexpected event to another: fallout from a deadly coal mining accident; an oil rig explosion in the Gulf Coast; an attempted car bombing in Times Square; an economic meltdown and riots in Greece.
  • 6 Catholics—Roberts, Scalia, Thomas, Kennedy, Alito, Sotomayor; 3 Jewish: Ginsburg, Breyer, Kagan
  • Christine Nemacheck - Choosing Justices The Sotomayor and Kagan Nominations and the US Supreme Court

    1. 1. T H E S O T O M A Y O R A N D K A G A N N O M I N A T I O N S A N D T H E U S S U P R E M E C O U R T C H R I S T I N E N E M A C H E C K D E P A R T M E N T O F G O V E R N M E N T T H E C O L L E G E O F W I L L I A M & M A R Y O C T O B E R 2 8 , 2 0 1 0 Choosing Justices
    2. 2. Obama’s Supreme Court Nominations •50 years old •Solicitor General of the United States, 2009-2010 •Dean of Harvard Law School, 2003-2009 Sonia Sotomayor Elena Kagan •56 years old •Judge, US Court of Appeals, Second Circuit 1998-2009 •Judge, US District Court, Southern District of New York 1992-1998
    3. 3. The Retirements  Associate Justice John Paul Stevens  Appointed by President Ford in 1975  Third longest serving justice  Retired June 2010  Associate Justice David Souter  Appointed by President Bush (41) in 1990  Retired June 2009
    4. 4. Presidential Strategy in Appointing Supreme Court Justices  Informational & Political strategies  Limit uncertainty about the future behavior of nominee (informational strategy)  Limit uncertainty about the nominee’s confirmation prospects (political strategy)
    5. 5. Choosing a Nominee There are certain factors that constrain all presidents in making an appointment to the Supreme Court  Informational Strategy Factors  Presidents choose ideologically proximate nominees, particularly when they are less constrained by the Senate confirmation process  Experience in public service provides presidents useful information  Political activism makes a candidate less likely to be chosen by the Court  Politically Strategic Factors  Presidents are more likely to choose candidates endorsed by members of Congress  Public sector experience makes presidents less likely to choose a candidate when they are more constrained by the Senate
    6. 6. The Recent Vacancies  Justice Souter  Early indications of his plan to retire came when he didn’t hire law clerks for the October Term 2008  Announced his retirement on May 1, 2009  Justice Stevens  Only hired one clerk for October Term 2009  Announced his plan to retire on April 9, 2010
    7. 7. Political Context in which Vacancies Arose  Souter vacancy  President had near super-majority in the Senate when he chose Sotomayor; super-majority by confirmation hearings  Obama approval ratings higher than in first 100 days—66% approval ratings  Willingness to expend political capital?  Stevens vacancy  Senate Democrats lost their super-majority with Scott Brown’s election to replace Sen. Ted Kennedy  In week in which Stevens announced retirement approval ratings had dropped to 47%  Decreasing political capital
    8. 8. What Can We Learn from the Sotomayor Appointment?  Justice Sonia Sotomayor  Assistant District Attorney New York County (prosecutor) from 1979- 1984  Nominated to U.S. District Court SDNY by Pres. George H.W. Bush in 1991  Nominated to 2nd Circuit Court of Appeals by Pres. Clinton in 1998  Pres. Obama nominated Sotomayor to USSC May 26, 2009  The Selection Process  Very tightly controlled in the White House—becoming more common  Political calculations  Consultations with senators  The Confirmation Process  The hearings  Filibuster threats?  The confirmation vote 68-31
    9. 9. What Can We Learn from the Kagan Appointment?  Justice Elena Kagan  University of Chicago Law School 1991-1995  Clinton White House 1995-1999 (Associate Counsel, Deputy Assistant for Domestic Policy, Deputy Director of Domestic Policy Council)  Harvard Law School (Professor 1999-2003, Dean 2003-2009)  Solicitor General of the United States 2009-2010  The Selection Process  Obama had been through the process only one year earlier  Already had a list of candidates to consider  More focused process  The Confirmation Process  The hearings  Confirmation vote 63-37
    10. 10. Important Implications of Changes on the Court  Ideological Change?  For the first time, there are no Protestants on the Supreme Court  Stevens was a strong voice for the minority viewpoint  Stevens was an effective coalition builder  Justice Kennedy could now be the senior justice in a five person majority that does not include Chief Justice Roberts
    11. 11. Potential for Vacancies in Near-Term The Current Court:  Ruth Bader Ginsburg, 77  Antonin Scalia, Anthony Kennedy, 74  Stephen Breyer, 72  Clarence Thomas, 62  Samuel Alito, 60  John Roberts, 55 Political Factors:  2010 midterm elections  Potential for successful nominations in 4th year of term  Obama’s success generally with judicial nominations  The confirmation environment
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