Who Ranks as Supreme Court Material?

By Yalof, David | Judicature, November/December 2007 | Go to article overview

Who Ranks as Supreme Court Material?


Yalof, David, Judicature


Who ranks as Supreme Court material? by David Yalof Strategic Selection: Presidential Nomination of Supreme Court Justices from Herbert Hoover through George W. Bush, by Christine L. Nemacheck. University of Virginia Press. 2007. 200 pages. $35.

One may presume that the Attorney General of the United States has better things to do than to spend time writing pro forma advisory memos that will never be read. And yet mat's exactly how Nicholas deB. Katzenbach spent most of his working day on July 22, 1965. The previous day, President Lyndon Johnson had met with his attorney general to discuss the first Supreme Court nomination of his presidency. Johnson had engineered this particular vacancy by persuading Arthur Goldberg to leave the bench-by all accounts the president desperately wanted to name close friend and lawyer Abe Fortas in his place. Yet Fortas had already turned down the nomination on July 19, and so Johnson asked his attorney general to draft a memo investigating "all possible options."

In another presidency, such a critically important memo from the attorney general would have laid the foundation for all subsequent discussions. Yet Lyndon Johnson was not like most other presidents-once he set his sights on an appointment, he simply would not accept the word "no." Thus, as Katzenbach later recounted, drafting the memo was probably a waste of his time, and he knew it. Johnson would continue to pursue Fortas for the vacancy. Even Justice Goldberg himself was certain that his anxious clerks would be working for Fortas soon enough, telling them that "the president won't even consider other names."

Ever the loyal soldier, Katzenbach dutifully complied with the president's request, producing a list of 14 qualified alternatives to Fortas accompanied by his own comments and biographies for each. As Katzenbach correctly predicted, President Johnson never read the memo, which arrived at the White House some time on July 23. Less than a week later, on July 28, 1965, Johnson finally got his man; later that day he formally nominated Fortas to the bench. As for the memo itself, it can be found today carefully preserved at the Lyndon Johnson Presidential Library in Austin, Texas. One central question remains: if the memo was never actually used, might it still offer important insights into the ways that presidents in general-and Lyndon Johnson, in particular-select Supreme Court nominees?

In Strategic Selection: Presidential Nomination of Supreme Court Justices from Herbert Hoover through George W Bush, Professor Christine Nemacheck subjects Katzenbach's memo (along with countless other documents and papers spanning 10 different presidencies) to rigorous and systematic scrutiny. Nemacheck's book arises from the premise that research on the selection of Supreme Court justices currently lacks a "systematically tested, multivariate model of a president's choice in selecting a candidate for the Supreme Court." (p. 16). To advance our understanding of the process, Nemacheck thus seeks to quantitatively analyze the short lists for Supreme Court nominations dating back to Hoover, as articulated by leading decision makers in memos and other documents to be found in the archives. (Short lists of the two most recent presidents are pieced together by secondary accounts). Depending on how one chooses to count them, this approach allows her to analyze up to 248 possible candidates for nearly 40 separate nominations (In conducting her analysis, Nemacheck excludes the eight candidates who were lucky enough to find themselves on so-called "single-candidate" short lists).

Nemacheck's effort deserves praise on a number of fronts. The obsession of many social scientists with quantitative analysis of Senate confirmation votes on Supreme Court nominees should not obscure the fact that the Supreme Court selection process itself offers a rich source of data for more rigorous quantitative analysis as well; Nemacheck's work rises to that challenge even where the data are not so public or readily available. …

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