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Research Reveals How Presidents
Choose Supreme Court Justices
December 6, 1999

David Yalof was a young writer, working in Washington, D.C., as an intern for the St. Louis Post Dispatch, when Supreme Court Justice Lewis Powell announced he was resigning from the nation's highest court. Thrown into the breach, his head was still spinning less than 24 hours later when President Ronald Reagan announced he was naming Robert Bork to fill the vacancy.

The announcement about Bork and the former Yale University professor's outspokenness sent the American media and dozens of special interest groups into a frenzy for the next two months. And it sent Yalof into the vaults of seven presidential libraries several years later.

"It was surreal," Yalof, now an assistant professor in UConn's political science department, says of the Bork announcement. "I had a feeling that I had walked in on the final act of a play ... I couldn't help wondering - and no reporters asked - what got the process to that point? What made Reagan choose Bork? Everyone said it was because Bork was a solid conservative, but there were plenty of other conservatives he could have chosen."

So Yalof dived into his new passion: why do presidents choose the men and women they select for appointment to the Supreme Court? It was fertile ground, Yalof says, an area previously not considered by reporters, scholars, or even presidents, many of whom seemed determined not to make the same mistakes as their immediate predecessor but who often failed to take heed of errors in judgement made years earlier.

The results of Yalof's research have now been released. In Pursuit of Justices: Presidential Politics and the Selection of Supreme Court Nominees, published by the University of Chicago Press, Yalof reveals what occurred in Washington in the days, weeks, months and, in some cases, years leading up to Supreme Court nominations made by presidents Truman through Reagan. In his epilogue, Yalof also considers nominations made by presidents Bush and Clinton.

"Even today," Yalof says, "when a nominee is not confirmed, court experts focus on the Senate confirmation process for answers. People still are not questioning how the nominee was selected in the first place."

In fact, Yalof has found, some presidents have had very little to do with the selection process, leaving the choice up to their chief of staff or Justice Department officials. Others ran into a buzz saw, with several staffers competing with one another, trumpeting their choice and, in the process, ignoring a candidate's faults so "their" candidate will be chosen, giving them at least a temporary surge in power in the West Wing.

A prime example of that flawed process, Yalof says, occurred when President Reagan - who took a hands-off approach to most matters, including choosing Supreme Court nominees - was blindsided by the positions taken by Sandra Day O'Connor once she arrived on the court. A decade after being confirmed by the Senate,

O'Connor voted with the majority not to overrule Roe v. Wade. Yet Reagan's chief of staff, William French Smith, had a memo hinting that her record on abortion issues was ambiguous. Smith, however, battling for influence in the White House, emphasized other aspects of her record to Reagan.

Yalof says there's no way to tell what process George W. Bush, Al Gore, Bill Bradley or the other candidates vying for the presidency in 2000 will use to pick their candidates, but pick some they will. During the next president's four-year term at least two justices - John Paul Stevens and William Rehnquist - are likely to retire. And Rehnquist is currently chief justice, giving the next president an even better chance to shape future decisions.

"The 2000 election is significant," Yalof says. "The chief justice is a very important replacement. He gets to distribute opinion-writing responsibilities."

Whoever makes those choices, though, would be wise to consider Yalof's recommendations, based on his years of research:

  • The president should rely on a single, trusted advisor for his information, which would remove the minefields Reagan and, to an extent, Clinton encountered;

  • He should avoid floating candidates' names in trial balloons, a strategy Clinton employed and one that saw the president - and his nominees - skewered for months;

  • He should avoid creating too many litmus tests, a tactic used by Dwight Eisenhower, who deemed that nominees must be less than 62 years old, have served previously as a judge, and be neither liberal nor too conservative. Eisenhower's rigid requirements removed too many qualified candidates from the pool, Yalof and other historians say;

  • He should pay some attention to the immediate political environment, a tactic that caused President George Bush some difficulty with his nomination of Clarence Thomas. Stormy though the process was, Yalof says Bush gambled that the Democratic majority in the Senate would not reject an African-American.

Yalof says a president needs to be sensitive to the moment. "Robert Bork might have been a fine candidate in 1983 or even 1985, but he stood less of a chance in 1987 before a Democratic Senate."

The ideal process, Yalof says, would combine the tactics used by Eisenhower - a single trusted advisor conducting a comprehensive search - with those of John F. Kennedy, whose efforts to keep an open mind and consider all possible candidates earned him two stellar appointees: Byron White and Arthur Goldberg.

Ultimately, however, choosing a Supreme Court nominee can be a thankless job, Yalof says, even though it may be the most important decision a president makes.

"There is very little political benefit in naming people to the Court," he says. "The selection is much more relevant to a president's legacy. Picking them is a minefield - you take a false step and everybody remembers you for that. Pick a few good justices, like President Clinton has, and everybody says it's your job, you're supposed to pick good justices, and your part in it is forgotten."

Richard Veilleux