Judicial appointments and Senate confirmation processes are now highly politicized affairs able to mobilizes elites and ordinary citizens alike. They are occasions for intense political maneuvering and debate, and have become considerable factors in election campaigns and electoral calculations. These appointments now influence political fundraising and spending as well as plays of intrigue and power politics. Professional considerations play an important role, with nominees generally having prior judicial experience (especially for Supreme Court appointments) or extensive legal experience. Each of the nine current Supreme Court justices (including Elena Kagan, confirmed August 2010) attended either Harvard or Yale law school. And both sides of the ideological divide can muster enough judicial talent. Until 2001, however, presidents submitted their nominations to the American Bar Association’s (ABA) Standing Committee on Federal Judiciary. The Bush administration in 2001 dispensed with this practice, arguing that the ABA had become too liberal in their assessments. The Obama administration returned to the established practice with the nomination of Sonia Sotomayor to the Supreme Court, thus reintroducing an element of professional review. With Elena Kagan, currently the solicitor general, who replaced outgoing liberal Justice John Paul Stevens, President Obama had his second chance to leave an imprint on the court. The appointment will not immediately alter the ideological balance of the court. Kagan, an eminently qualified jurist, previously was dean of the Harvard Law School, but never served as a judge.
The politicization of the appointment process is not due to a malfunctioning institutional design, but to the powerful political role of the Supreme Court. A de-politicization of the appointment system along the lines of the Missouri Plan, where a bipartisan commission would present the president with a list of candidates to choose from, would be blocked by any president. In recent years, the presidential-opposition party in the Senate (e.g., the Republicans during the Democratic Obama administration) has demonstrated a willingness to filibuster judicial appointments, resulting in an effective requirement for 60 (out of 100) positive votes to achieve confirmation. Although the filibuster produces some pressure for relatively moderate appointments, the main factor moderating recent Supreme Court decisions has been the frequency of highly contentious 5-4 decisions, with the moderate conservative Anthony Kennedy casting the pivotal vote. Depending on the timing of deaths and retirements on the Court and election results, the Supreme Court could swing very sharply, either to the left or the right, in the near future.
Joel B. Grossman, Paths to the bench: Selecting Supreme Court Justices in a “juristocratic” world, in Kermit L. Hal/Kevin T. Mcguire (eds.), The Judicial Branch, Oxford, New York 2005, 142-173.
American Bar Association, Standing Committee on Federal Judiciary. See http://www.abanet.org/scfedjud/home .html.
Kagan would emphasize Supreme Court moving in new direction, in: Washington Post, May 11, 2010, available on http://www.washingtonpost.com/wp-dy