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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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