A vacancy on the Supreme Court hands the President a chance to leave an indelible mark on American society long after his or her term has ended. President Nixon once declared “the most important appointments a President makes are those to the Supreme Court of the United States.” Nominating the right person often means presidents have to consult with various interest groups, the Justice Department, and the American Bar Association (ABA), among others. Those candidates who are fortunate enough to receive recommendations from the aforementioned groups and organizations then receive questionnaires about their personal lives, which they return to the Justice Department. If a candidate receives a good recommendation from the ABA (which then informs the Justice Department) the FBI runs a security check and the ABA issues a formal report (which includes the votes of its members.) The President might make the final decision, but usually the attorney general makes the selection for vacancies in lower courts. The White House then transmits the nomination to the Senate, which in turn refers the nomination to its Committee on the Judiciary. After hearings at which the candidate and other interested parties may testify, the Committee takes a vote; if favorable, it sends the nomination to the full Senate with a formal recommendation to confirm the candidate.
The judicial branch is the only branch whose members do not have to meet a constitutional requirement. In addition, members of the Supreme Court serve a lifetime appointment on the bench. Though there are no constitutional requirements, there are certain essential informal requirements that potential justices must fulfill: professional competence, political qualifications, education, self-selection, an element of luck, among others. Using the current members of the Supreme Court as a case study, let's see if these “informal qualifications” holds true.
Justice Sandra Day O'Connor's decision to end her illustrious career on the bench before the start of the fall term in 2005 coupled with the death of Chief Justice William Rehnquist meant two crucial seats were suddenly open. The vacancies gave President Bush a chance to leave a very important impact on the judicial system since Rehnquist and O'Connor were leaving a lasting legacy on the history of the Court. Bush initially nominated John Roberts to fill O'Connor's seat, but withdrew his nomination after Rehnquist's death. So in keeping with the gender makeup of the Court, Bush nominated Harriet Myers to fill O'Connor's seat. Myers subsequently withdrew her nomination due to widespread criticism about her competence as a justice due to her lack of judicial experience. John Roberts was nominated to fill Rehnquist's seat as Chief Justice and Samuel Alito was successfully nominated to fill O'Connor's seat. And so for the first time since 1994, the makeup of the Court was changed.
In the course of research, I noted that most of the justices fulfill the “informal qualifications.” Of the nine justices, John Paul Stevens is the only one without an Ivy League law degree having graduated first in his class at Northwestern Law School. Justices Scalia, Souter, Breyer, Roberts and Kennedy all earned their law degrees from Harvard. Justices Alito and Thomas are Yale Law alumni while Ruth Bader Ginsburg graduated from Columbia Law School. In addition to a degree from an elite law school, a qualification that is becoming essential for every aspiring justice is a seat on one of the nine Courts of Appeals. Every current justice served as an appellate judge before their elevation to the Supreme Court. Justices Thomas, Roberts, Scalia, and Ginsburg served on the DC Circuit, Breyer and Souter sat on the First Circuit, Kennedy on the Ninth Circuit, Stevens on the Seventh Circuit and Alito on the Third Circuit.
In a term, the Supreme Court receives thousands of petitions for a writ of certiorari-a writ issued by the Supreme Court to order a lower court to prepare the record of a case and send it to the Court for review-but most petitions are turned down because the Court decides less than 100 cases a year. Since most appeals never reach the Supreme Court, a seat on the Appeals Court essentially qualifies one as competent enough to sit on the Supreme Court since the Appeals Court is often the last stop for most cases.
Another informal qualification is symbolic representation. Throughout the history of the Supreme Court, the vast majority of the justices have been white protestant males. The tide changed when Louis Brandeis became the first Jew to sit on the Supreme Court in 1916 and was followed by Benjamin Cardozo in 1932. During President Reagan's campaign for the presidency in 1980, he promised that should a vacancy arise on the Court during his time in office, he would appoint the first woman to the Supreme Court. When Potter Stewart announced his retirement from the Court, Reagan kept his promise and nominated Sandra Day O'Connor to become the first female Supreme Court justice in American history. Following an overwhelming majority vote in the Senate, she took her seat in the fall of 1981. When Tom C. Clark retired from the Court in 1967, President Johnson nominated Thurgood Marshall, a former Solicitor General and an Appeals Court judge who had successfully argued many cases before the Supreme Court, notably Brown v. Board, to become the first African American to sit on the Court. When he retired in 1991, Justice Clarence Thomas was successfully nominated to fill his seat on the Court in order to keep the racial makeup. There is growing voice in academic circles that the time is ripe for a Latino or Asian justice.