{"id":469,"date":"2015-07-17T18:16:55","date_gmt":"2015-07-17T18:16:55","guid":{"rendered":"https:\/\/courses.candelalearning.com\/masteryusgovernment1x6xmaster\/?post_type=chapter&#038;p=469"},"modified":"2017-04-06T21:23:11","modified_gmt":"2017-04-06T21:23:11","slug":"reading-selecting-federal-judges","status":"publish","type":"chapter","link":"https:\/\/courses.lumenlearning.com\/atd-herkimer-americangovernment\/chapter\/reading-selecting-federal-judges\/","title":{"raw":"G. Reading: Selecting Federal Judges","rendered":"G. Reading: Selecting Federal Judges"},"content":{"raw":"<div id=\"paletz_1.0-ch15_s03_n01\" class=\"learning_objectives editable block\">\r\n<h2 class=\"title\">Learning Objectives<\/h2>\r\n<p id=\"paletz_1.0-ch15_s03_p01\" class=\"para\">After reading this section, you should be able to answer the following questions:<\/p>\r\n\r\n<ol id=\"paletz_1.0-ch15_s03_l01\" class=\"orderedlist\">\r\n \t<li>What factors influence the selection of federal judges?<\/li>\r\n \t<li>What is the confirmation process?<\/li>\r\n \t<li>Under what circumstances are the media important in the confirmation (or not) of Supreme Court nominees?<\/li>\r\n \t<li>Why are some nominations unsuccessful and others successful?<\/li>\r\n<\/ol>\r\n<\/div>\r\n<p id=\"paletz_1.0-ch15_s03_p02\" class=\"para editable block\">The president nominates all federal judges, who must then be approved by the Senate. President George W. Bush\u2019s nominees were screened by a committee of fifteen White House and justice department officials headed by the White House legal counsel. They looked for ideological purity, party affiliation, and agreement with the president on policy issues and often turned to the Federalist Society, a conservative lawyers\u2019 group, for nominees.<\/p>\r\n<p id=\"paletz_1.0-ch15_s03_p03\" class=\"para editable block\">The appointments of judges to the lower federal courts are important because almost all federal cases end there.<span id=\"paletz_1.0-fn15_043\" class=\"footnote\">[footnote]For a study of lower federal court selection, see Sheldon Goldman, <em class=\"emphasis\">Picking Federal Judges<\/em>(New Haven, CT: Yale University Press, 1997).[\/footnote]<\/span> Through lower federal judicial appointments, a president \u201chas the opportunity to influence the course of national affairs for a quarter of a century after he leaves office.\u201d<span id=\"paletz_1.0-fn15_044\" class=\"footnote\">[footnote]From Tom Charles Huston to President Richard Nixon, 25 March 1969, in WHCF ExFG 50, the Judicial Branch (1969\u20131970), Box 1, White House Central Files, FG 50, Nixon Presidential Materials Project, College Park, Maryland.[\/footnote]<\/span><\/p>\r\n<p id=\"paletz_1.0-ch15_s03_p04\" class=\"para editable block\">Once in office, federal judges can be removed only by impeachment and conviction. Unless compelled to retire due to illness or incapacity, judges may time their departures so that their replacements are appointed by a president who shares their political views and policy preferences.<span id=\"paletz_1.0-fn15_045\" class=\"footnote\">[footnote]Lee Epstein and Jeffrey A. Segal, <em class=\"emphasis\">The Politics of Judicial Appointments<\/em> (New York: Oxford University Press, 2005).[\/footnote]\u00a0<\/span>Supreme Court Justice Souter retired in 2009 and Justice Stevens retired in 2010, enabling President Obama to nominate, and the Democratic-controlled Senate to confirm, their successors.<\/p>\r\n\r\n<div id=\"paletz_1.0-ch15_s03_s01\" class=\"section\">\r\n<h2 class=\"title editable block\">Choosing Supreme Court Justices<\/h2>\r\n<p id=\"paletz_1.0-ch15_s03_s01_p01\" class=\"para editable block\">In nominating Supreme Court justices, presidents seek to satisfy their political, policy, and personal goals.<span id=\"paletz_1.0-fn15_046\" class=\"footnote\">[footnote]Michael Comiskey, <em class=\"emphasis\">Seeking Justices: The Judging of Supreme Court Nominees<\/em> (Lawrence: University Press of Kansas, 2004), thinks the confirmation process is acceptable and effective; but Christopher L. Eisgruber, <em class=\"emphasis\">The Next Justice: Repairing The Supreme Court Appointments Process<\/em>(Princeton, NJ: Princeton University Press, 2007), wants the selection process to produce justices with moderate judicial philosophies; and Richard Davis, <em class=\"emphasis\">Electing Justice: Fixing the Supreme Court Nomination Process<\/em> (New York: Oxford University Press, 2005), thinks the process is a mess and proposes various ways of electing Supreme Court justices.[\/footnote]<\/span> They do not always succeed; justices sometimes change their views over time or may surprise the president from the start. \u201cBiggest damfool mistake I ever made,\u201d said President Dwight D. Eisenhower about his appointment of Chief Justice Earl Warren, who led the Supreme Court\u2019s liberal decisions on civil rights and criminal procedure.<\/p>\r\n<p id=\"paletz_1.0-ch15_s03_s01_p02\" class=\"para editable block\">The following are some other factors that can influence presidents\u2019 choices of Supreme Court nominees:<span id=\"paletz_1.0-fn15_047\" class=\"footnote\">[footnote]See David Alistair Yalof, <em class=\"emphasis\">Pursuit of Justices: Presidential Politics and the Selection of Supreme Court Nominees<\/em> (Chicago: University of Chicago Press, 1999), 4\u20137 and 17.[\/footnote]<\/span><\/p>\r\n\r\n<ul id=\"paletz_1.0-ch15_s03_s01_l01\" class=\"itemizedlist editable block\">\r\n \t<li><strong class=\"emphasis bold\">Senate composition.<\/strong> Whether the president\u2019s party has a majority or a minority in the Senate is a factor. In 1990, when the Democrats had a majority, Republican President George H. W. Bush nominated the judicially experienced and reputedly ideologically moderate David H. Souter, who was easily approved.<\/li>\r\n \t<li><strong class=\"emphasis bold\">Timing.<\/strong> The closer to an upcoming presidential election the appointment occurs, the more necessary it is to appoint a highly qualified, noncontroversial figure acceptable to the Senate, or at least someone senators would be reluctant to reject. Otherwise, senators have an incentive to stall until after the election, when it may be too late to obtain confirmation.<\/li>\r\n \t<li><strong class=\"emphasis bold\">Public approval of the president.<\/strong> The higher the president\u2019s approval ratings, the more nominating leeway the president possesses. But even presidents riding a wave of popularity can fail to get their nominees past the Senate, as was the case with Richard Nixon and his failed nominations of Clement Haynesworth and G. Harrold Carswell in 1970. So lacking were Carswell\u2019s qualifications that a senator defended him saying \u201cEven if he were mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation . . . and a little chance.\u201d<span id=\"paletz_1.0-fn15_048\" class=\"footnote\">[footnote]Warren Weaver Jr., \u201cCarswell Nomination Attacked and Defended as Senate Opens Debate on Nomination,\u201d <em class=\"emphasis\">New York Times<\/em>, March 17, 1970, A11.[\/footnote]<\/span><\/li>\r\n \t<li><strong class=\"emphasis bold\">Interest groups.<\/strong> Nominees must usually be acceptable to interest groups that support the president and invulnerable (or at least resistant) to being depicted negatively\u2014for example, as ideological extremists\u2014by opposition groups, in ways that would significantly reduce their chances of Senate approval.<\/li>\r\n<\/ul>\r\n<p id=\"paletz_1.0-ch15_s03_s01_p03\" class=\"para editable block\">Nominations go to the Senate Judiciary Committee, which usually holds hearings. Whether senators should concern themselves with anything more than the nominee\u2019s professional qualifications is often debated. Arguably, \u201cnothing in the Constitution, historical experience, political practice, ethical norms, or statutory enactments prohibits senators from asking questions that reveal judicial nominees\u2019 views on political and ideological issues.\u201d<span id=\"paletz_1.0-fn15_049\" class=\"footnote\">[footnote]Albert P. Melone, \u201cThe Senate\u2019s Confirmation Role in Supreme Court Nominations and the Politics of Ideology versus Impartiality,\u201d <em class=\"emphasis\">Judicature<\/em> 75, no. 2 (August\u2013September 1991): 529; also Nancy Scherer, <em class=\"emphasis\">Scoring Points: Political Activists and the Lower Federal Court Confirmation Process<\/em> (Palo Alto, CA: Stanford University Press, 2005).[\/footnote]<\/span><\/p>\r\n<p id=\"paletz_1.0-ch15_s03_s01_p04\" class=\"para editable block\">The next step is for the Judiciary Committee to vote on whether or not to send the nomination to the Senate floor. If it reaches the floor, senators then can vote to confirm or reject the nomination, or filibuster so that a vote is delayed or does not take place. Fewer than half of recent nominees to the federal appeals courts have been confirmed.<span id=\"paletz_1.0-fn15_050\" class=\"footnote\">[footnote]Sarah A. Binder and Forrest Maltzman, <em class=\"emphasis\">Advice and Dissent: The Struggle to Shape the Federal Judiciary<\/em> (Washington, DC: Brookings Institution Press, 2009).[\/footnote]<\/span><\/p>\r\n\r\n<\/div>\r\n<div id=\"paletz_1.0-ch15_s03_s02\" class=\"section\">\r\n<h2 class=\"title editable block\">The Media and Supreme Court Nominees<\/h2>\r\n<p id=\"paletz_1.0-ch15_s03_s02_p01\" class=\"para editable block\">Presidents have few opportunities to nominate Supreme Court justices, so the media provide intensive coverage of every stage of the nomination, from the time an incumbent justice leaves office until a replacement is confirmed by the Senate. The scrutiny is not necessarily damaging. President Clinton\u2019s nominees, Ruth Bader Ginsberg and Stephen Breyer, enjoyed Senate confirmation by votes of 97\u20133 and 87\u20139, respectively.<\/p>\r\n<p id=\"paletz_1.0-ch15_s03_s02_p02\" class=\"para editable block\">Sometimes the media determine a nominee\u2019s fate. President Reagan\u2019s nominee Douglas H. Ginsburg withdrew when news stories reported that he had smoked marijuana with some of his Harvard Law School students. The media were also intimately involved with the fates of Robert H. Bork and Clarence Thomas, particularly through their coverage of the Senate Judiciary Committee\u2019s hearings.<\/p>\r\n\r\n<div id=\"paletz_1.0-ch15_s03_s02_s01\" class=\"section\">\r\n<h2 class=\"title editable block\">The Failed Nomination of Robert H. Bork<\/h2>\r\n<p id=\"paletz_1.0-ch15_s03_s02_s01_p01\" class=\"para editable block\">Bork was a distinguished lawyer who had taught at Yale University, served as solicitor general and acting attorney general of the United States, and was a judge on the U.S. Court of Appeals for the DC Circuit. He opposed civil rights laws and such Supreme Court decisions as <em class=\"emphasis\">Roe v. Wade<\/em> allowing abortion. More than three hundred, mostly liberal, interest groups publicly opposed him.<\/p>\r\n<p id=\"paletz_1.0-ch15_s03_s02_s01_p02\" class=\"para editable block\">The anti-Bork coalition adroitly used the media against him. It barraged two thousand journalists and seventeen hundred editorial writers with detailed packets of material criticizing him. It sponsored television and newspaper advertisements attacking him and asking Americans to urge their senators to vote against him.<span id=\"paletz_1.0-fn15_051\" class=\"footnote\">[footnote]Michael Pertschuk and Wendy Schaetzel, <em class=\"emphasis\">The People\u2019s Rising<\/em> (New York: Thunder\u2019s Mouth Press, 1989), 155; also Ethan Bronner, <em class=\"emphasis\">Battle for Justice: How the Bork Nomination Shook America<\/em> (New York: Norton, 1989).[\/footnote]<\/span><\/p>\r\n\r\n<div id=\"paletz_1.0-ch15_s03_s02_s01_f01\" class=\"figure small editable block\">\r\n\r\n[caption id=\"attachment_470\" align=\"alignright\" width=\"200\"]<a href=\"https:\/\/s3-us-west-2.amazonaws.com\/courses-images-archive-read-only\/wp-content\/uploads\/sites\/607\/2015\/07\/21191954\/Reagan-and-Bork.jpg\"><img class=\"wp-image-470 \" src=\"https:\/\/s3-us-west-2.amazonaws.com\/courses-images-archive-read-only\/wp-content\/uploads\/sites\/607\/2015\/07\/21191954\/Reagan-and-Bork.jpg\" alt=\"Photo of President Reagan standing beside Robert Bork.\" width=\"200\" height=\"304\" \/><\/a> Robert Bork with President Reagan. Self-confident at his public nomination by President Reagan, Bork would be defeated by the campaign waged against him by his opponents.[\/caption]\r\n<p class=\"para\">The nominee, touted by his supporters as urbane, witty, and brilliant, contributed to his demise by the impression he made on national television during five contentious days, during which he candidly testified about his legal and political philosophy, defended his views on issues and cases, and responded to questions from members of the Senate Judiciary Committee. Having refused the practice sessions (known as <span class=\"margin_term\"><a class=\"glossterm\">\u201cmurder boards\u201d<\/a><\/span>) and coaching offered by the White House, the professorial, scraggly bearded Bork was outmaneuvered by his opponents on the committee, who came up with such sound bites\u2014featured on the evening television news\u2014as, \u201cYou are not a frightening man, but you are a man with frightening views.\u201d<span id=\"paletz_1.0-fn15_052\" class=\"footnote\">[footnote]Senator Howard Metzenbaum (D.-Ohio), cited in Mark Gitenstein, <em class=\"emphasis\">Matters of Principle<\/em> (New York: Simon &amp; Schuster, 1992), 239.[\/footnote]<\/span><\/p>\r\n\r\n<\/div>\r\n<p id=\"paletz_1.0-ch15_s03_s02_s01_p04\" class=\"para editable block\">The Senate rejected the nominee on October 23, 1987, by a vote of 58\u201342. The process generated a new verb in politics: <span class=\"margin_term\"><a class=\"glossterm\">\u201cto bork,\u201d<\/a><\/span> which means to unleash a lobbying and public relations campaign, using and facilitated by the media.<\/p>\r\n\r\n<div id=\"paletz_1.0-ch15_s03_s02_s01_n01\" class=\"callout block\">\r\n<h3 class=\"title\">Link:\u00a0The Bork Hearings<\/h3>\r\n<p id=\"paletz_1.0-ch15_s03_s02_s01_p05\" class=\"para\">Watch the <a href=\"http:\/\/www.c-spanarchives.org\/program\/994-2&amp;showFullAbstract=1\">video of the Bork hearings<\/a>.<\/p>\r\n\r\n<\/div>\r\n<\/div>\r\n<div id=\"paletz_1.0-ch15_s03_s02_s02\" class=\"section\">\r\n<h2 class=\"title editable block\">The Successful Nomination of Clarence Thomas<\/h2>\r\n<p id=\"paletz_1.0-ch15_s03_s02_s02_p01\" class=\"para editable block\">When a similar attack was waged against Clarence Thomas in the fall of 1991, the White House and the nominee\u2019s defenders were ready with a highly organized public relations campaign.<\/p>\r\n<p id=\"paletz_1.0-ch15_s03_s02_s02_p02\" class=\"para editable block\">President George H. W. Bush nominated Clarence Thomas for the seat of retiring Justice Thurgood Marshall. Both were African Americans. But in contrast to the liberal Democrat Marshall, Thomas was a conservative Republican. The nomination was opposed by leaders of liberal and feminist organizations, and supported by their conservative counterparts. It divided the civil rights community, which wanted an African American justice, but not one as conservative as Thomas.<\/p>\r\n<p id=\"paletz_1.0-ch15_s03_s02_s02_p03\" class=\"para editable block\">Because the nomination was shrewdly announced on the Monday afternoon preceding the Fourth of July weekend, reporters had time to transmit only the favorable story, spoon-fed from the White House, of the nominee\u2019s rise from poverty to prominence. Later, they reported some of his more controversial decisions during his one-year tenure as a federal appeals court judge.<\/p>\r\n<p id=\"paletz_1.0-ch15_s03_s02_s02_p04\" class=\"para editable block\">News coverage of the nomination resumed with the Senate Judiciary Committee\u2019s hearings during which Thomas, in contrast to Bork, steadfastly avoided taking clear stands on controversial issues. He had been advised by his White House advisors to \u201c(1) stress his humble roots; (2) [not] engage Senators in ideological debate; and (3) stonewall on abortion.\u201d<span id=\"paletz_1.0-fn15_053\" class=\"footnote\">[footnote]Mark Gitenstein, <em class=\"emphasis\">Matters of Principle\u00a0<\/em>(New York: Simon &amp; Schuster, 1992), 337.[\/footnote]<\/span> At the conclusion of the hearings, Senate confirmation seemed narrowly assured. Then law professor Anita Hill accused Thomas of having engaged in sexual improprieties when she worked for him at the Department of Education and the Equal Employment Opportunity Commission.<\/p>\r\n<p id=\"paletz_1.0-ch15_s03_s02_s02_p05\" class=\"para editable block\">With the salacious accusations, media coverage skyrocketed, especially when the hearings reopened featuring Hill\u2019s testimony and Thomas\u2019s rebuttals. Entertainment media made light of the issue: on\u00a0<em class=\"emphasis\">Saturday Night Live<\/em>, Chris Rock observed that \u201cif Clarence Thomas looked like Denzel Washington this thing would never have happened.\u201d Thomas angrily accused his detractors of attempting \u201ca high-tech lynching for uppity blacks.\u201d In the end, most senators voted as they had been leaning prior to Hill\u2019s testimony. Thomas was confirmed by a vote of 52\u201348.<\/p>\r\n\r\n<div id=\"paletz_1.0-ch15_s03_s02_s02_n01\" class=\"callout block\">\r\n<h3 class=\"title\">Link:\u00a0The Thomas Hearings<\/h3>\r\n<p id=\"paletz_1.0-ch15_s03_s02_s02_p06\" class=\"para\">Watch the <a href=\"http:\/\/www.c-spanarchives.org\/program\/Day1Part1\">Thomas hearings online<\/a>.<\/p>\r\n\r\n<\/div>\r\n<\/div>\r\n<div id=\"paletz_1.0-ch15_s03_s02_s03\" class=\"section\">\r\n<h2 class=\"title editable block\">Nomination of John G. Roberts Jr.<\/h2>\r\n<p id=\"paletz_1.0-ch15_s03_s02_s03_p01\" class=\"para editable block\">In July 2005, President George W. Bush made the first Supreme Court nomination in eleven years. He chose John G. Roberts Jr., a federal appeals court judge on the DC Circuit, to replace the moderate Republican Sandra Day O\u2019Connor, who was retiring. Roberts was then nominated to be chief justice after the death of incumbent William H. Rehnquist.<\/p>\r\n\r\n<div id=\"paletz_1.0-ch15_s03_s02_s03_f01\" class=\"figure small editable block\">\r\n\r\n[caption id=\"\" align=\"alignright\" width=\"200\"]<img class=\"\" src=\"http:\/\/2012books.lardbucket.org\/books\/21st-century-american-government-and-politics\/section_19\/356ba7aa7be0c6eb5b3d9f3313d99d0e.jpg\" alt=\"Photo of President George W. Bush in the Oval Room with John Roberts and a small crowd of journalists.\" width=\"200\" height=\"133\" \/> The media\u2019s intense attention to Supreme Court nominees is caught in this photograph showing the gaggle of journalists around John G. Roberts as he meets with the president.[\/caption]\r\n\r\n<\/div>\r\n<p id=\"paletz_1.0-ch15_s03_s02_s03_p02\" class=\"para editable block\">During three days of testifying before the Senate Judiciary Committee, the erudite and engaging Roberts deflected questions by comparing judges to umpires and saying that he would be guided by the law. On September 29, 2005, the Republican-controlled Senate approved him as chief justice of the U.S. Supreme Court by a vote of 78\u201322.<\/p>\r\n\r\n<div id=\"paletz_1.0-ch15_s03_s02_s03_n01\" class=\"callout block\">\r\n<h3 class=\"title\">Link:\u00a0John G. Roberts\u2019 Opening Statement<\/h3>\r\n<p id=\"paletz_1.0-ch15_s03_s02_s03_p03\" class=\"para\">Watch the <a href=\"http:\/\/www.c-spanclassroom.org\/Video\/44\/Judge+John+Roberts+Opening+Statement+at+Confirmation+Hearing+for+US+Chief+Justice.aspx\">opening statement of John G. Roberts<\/a>.<\/p>\r\n\r\n<\/div>\r\n<\/div>\r\n<div id=\"paletz_1.0-ch15_s03_s02_s04\" class=\"section\">\r\n<h2 class=\"title editable block\">Nominations of Harriet Miers and Samuel A. Alito Jr.<\/h2>\r\n<p id=\"paletz_1.0-ch15_s03_s02_s04_p01\" class=\"para editable block\">Bush next turned to fill Sandra Day O\u2019Connor\u2019s vacant seat. He was under pressure, even in public statements from his wife, to appoint a woman to succeed O\u2019Connor. He nominated his White House general counsel and close friend, Harriet Miers. She had never served as a judge, had little expertise on constitutional matters, and held few reported positions on important issues.<\/p>\r\n<p id=\"paletz_1.0-ch15_s03_s02_s04_p02\" class=\"para editable block\">Conservatives, including officeholders, interest-group leaders, columnists, pundits, and bloggers, rejected the president\u2019s assurance that she was a candidate they could trust. Leaders of the Senate Judiciary Committee rejected her answers to their questions as \u201cinadequate, insufficient and insulting.\u201d Senators expressed doubts to the news media about her qualifications and knowledge of the Constitution. After twenty-four days of a ferocious barrage of criticism, all reported and amplified by the media, Ms. Miers withdrew from consideration.<\/p>\r\n<p id=\"paletz_1.0-ch15_s03_s02_s04_p03\" class=\"para editable block\">President Bush then nominated a federal appeals court judge, Samuel A. Alito Jr. The judge had a record from his time in the Reagan administration and from fifteen years of judicial decisions of deferring to the executive branch, favoring business, and rejecting abortion rights.<\/p>\r\n<p id=\"paletz_1.0-ch15_s03_s02_s04_p04\" class=\"para editable block\">In testifying before the members of the Senate Judiciary Committee, Judge Alito followed the stonewalling script. Nothing he said could be used against him by Democratic senators on the committee or by the media. A dramatic moment in his favor, shown on television, occurred when his wife, upset by the questioning directed at him, walked out of the hearings in tears. Soon after the hearings, Judge Alito was approved by 58\u201342 (54 Republicans plus 4 Democrats against 40 Democrats plus 1 Republican and 1 Independent).<\/p>\r\n\r\n<div id=\"paletz_1.0-ch15_s03_s02_s04_n01\" class=\"callout block\">\r\n<h3 class=\"title\">Links:\u00a0The Miers Nomination and Alito Nomination<\/h3>\r\n<p id=\"paletz_1.0-ch15_s03_s02_s04_p05\" class=\"para\">Learn more about the <a href=\"http:\/\/www.npr.org\/series\/4933926\/harriet-miers-withdraws-as-high-court-nominee\">Miers nomination<\/a>.<\/p>\r\n<p id=\"paletz_1.0-ch15_s03_s02_s04_p06\" class=\"para\">Learn more about the <a href=\"http:\/\/www.npr.org\/series\/4982475\/alito-s-supreme-court-nomination-confirmed\">Alito nomination<\/a>.<\/p>\r\n\r\n<\/div>\r\n<\/div>\r\n<div id=\"paletz_1.0-ch15_s03_s02_s05\" class=\"section\">\r\n<h2 class=\"title editable block\">Nominations of Sonia Sotomayor and Elena Kagan<\/h2>\r\n<p id=\"paletz_1.0-ch15_s03_s02_s05_p01\" class=\"para editable block\">When Justice Souter resigned from the Court, President Obama, making his first nomination, picked Sonia Sotomayor to replace him. Her confirmation hearings in July 2009 followed the script that had worked for Roberts and Alito. She refused to opine about cases or identify a judicial philosophy other than \u201cfidelity to the law.\u201d Sotomayor would be the first Hispanic and third woman ever appointed to the Court. She would not change its ideological balance, and there were no media revelations to derail her prospects. Since the Democrats had sixty votes in the Senate, it came as no surprise that she was confirmed by a vote of 68\u201331.<\/p>\r\n<p id=\"paletz_1.0-ch15_s03_s02_s05_p02\" class=\"para editable block\">A similar pattern followed the resignation of Justice John Paul Stevens. Obama\u2019s nominee, Solicitor General and former Dean of the Harvard Law School Elena Kagan, was unlikely to change the ideological balance on the Court. She, too, largely stonewalled the hearings and was confirmed by the Senate on August 5, 2010, by a vote of 63\u201337.<\/p>\r\n\r\n<div id=\"paletz_1.0-ch15_s03_s02_s05_n01\" class=\"callout block\">\r\n<h3 class=\"title\">Links:\u00a0The Sotomayor Nomination and Kagan Nomination<\/h3>\r\n<p id=\"paletz_1.0-ch15_s03_s02_s05_p03\" class=\"para\">Learn more about the <a href=\"http:\/\/www.npr.org\/series\/106462774\/sonia-sotomayor-s-supreme-court-nomination\">Sotomayor nomination<\/a>.<\/p>\r\n<p id=\"paletz_1.0-ch15_s03_s02_s05_p04\" class=\"para\">Learn more about the <a href=\"http:\/\/www.npr.org\/series\/126664425\/elena-kagan-s-supreme-court-nomination\">Kagan nomination<\/a>.<\/p>\r\n\r\n<\/div>\r\n<div id=\"paletz_1.0-ch15_s03_s02_s05_n02\" class=\"key_takeaways editable block\">\r\n<h2 class=\"title\">Key Takeaways<\/h2>\r\n<p id=\"paletz_1.0-ch15_s03_s02_s05_p05\" class=\"para\">Presidents usually look to nominate as federal judges people who share their ideological, policy, and partisan views. Nominations attract intense scrutiny from interest groups and the media and can be controversial and contentious. They are subject to confirmation by the Senate, which may delay, block, or approve them. We explain why the nominations of Robert H. Bork and Harriet Miers failed and why those of Clarence Thomas, John G. Roberts Jr., Samuel A. Alito Jr., Sonia Sotomayor, and Elena Kagan were successful.<\/p>\r\n\r\n<\/div>\r\n<\/div>\r\n<\/div>","rendered":"<div id=\"paletz_1.0-ch15_s03_n01\" class=\"learning_objectives editable block\">\n<h2 class=\"title\">Learning Objectives<\/h2>\n<p id=\"paletz_1.0-ch15_s03_p01\" class=\"para\">After reading this section, you should be able to answer the following questions:<\/p>\n<ol id=\"paletz_1.0-ch15_s03_l01\" class=\"orderedlist\">\n<li>What factors influence the selection of federal judges?<\/li>\n<li>What is the confirmation process?<\/li>\n<li>Under what circumstances are the media important in the confirmation (or not) of Supreme Court nominees?<\/li>\n<li>Why are some nominations unsuccessful and others successful?<\/li>\n<\/ol>\n<\/div>\n<p id=\"paletz_1.0-ch15_s03_p02\" class=\"para editable block\">The president nominates all federal judges, who must then be approved by the Senate. President George W. Bush\u2019s nominees were screened by a committee of fifteen White House and justice department officials headed by the White House legal counsel. They looked for ideological purity, party affiliation, and agreement with the president on policy issues and often turned to the Federalist Society, a conservative lawyers\u2019 group, for nominees.<\/p>\n<p id=\"paletz_1.0-ch15_s03_p03\" class=\"para editable block\">The appointments of judges to the lower federal courts are important because almost all federal cases end there.<span id=\"paletz_1.0-fn15_043\" class=\"footnote\"><a class=\"footnote\" title=\"For a study of lower federal court selection, see Sheldon Goldman, Picking Federal Judges(New Haven, CT: Yale University Press, 1997).\" id=\"return-footnote-469-1\" href=\"#footnote-469-1\" aria-label=\"Footnote 1\"><sup class=\"footnote\">[1]<\/sup><\/a><\/span> Through lower federal judicial appointments, a president \u201chas the opportunity to influence the course of national affairs for a quarter of a century after he leaves office.\u201d<span id=\"paletz_1.0-fn15_044\" class=\"footnote\"><a class=\"footnote\" title=\"From Tom Charles Huston to President Richard Nixon, 25 March 1969, in WHCF ExFG 50, the Judicial Branch (1969\u20131970), Box 1, White House Central Files, FG 50, Nixon Presidential Materials Project, College Park, Maryland.\" id=\"return-footnote-469-2\" href=\"#footnote-469-2\" aria-label=\"Footnote 2\"><sup class=\"footnote\">[2]<\/sup><\/a><\/span><\/p>\n<p id=\"paletz_1.0-ch15_s03_p04\" class=\"para editable block\">Once in office, federal judges can be removed only by impeachment and conviction. Unless compelled to retire due to illness or incapacity, judges may time their departures so that their replacements are appointed by a president who shares their political views and policy preferences.<span id=\"paletz_1.0-fn15_045\" class=\"footnote\"><a class=\"footnote\" title=\"Lee Epstein and Jeffrey A. Segal, The Politics of Judicial Appointments (New York: Oxford University Press, 2005).\" id=\"return-footnote-469-3\" href=\"#footnote-469-3\" aria-label=\"Footnote 3\"><sup class=\"footnote\">[3]<\/sup><\/a>\u00a0<\/span>Supreme Court Justice Souter retired in 2009 and Justice Stevens retired in 2010, enabling President Obama to nominate, and the Democratic-controlled Senate to confirm, their successors.<\/p>\n<div id=\"paletz_1.0-ch15_s03_s01\" class=\"section\">\n<h2 class=\"title editable block\">Choosing Supreme Court Justices<\/h2>\n<p id=\"paletz_1.0-ch15_s03_s01_p01\" class=\"para editable block\">In nominating Supreme Court justices, presidents seek to satisfy their political, policy, and personal goals.<span id=\"paletz_1.0-fn15_046\" class=\"footnote\"><a class=\"footnote\" title=\"Michael Comiskey, Seeking Justices: The Judging of Supreme Court Nominees (Lawrence: University Press of Kansas, 2004), thinks the confirmation process is acceptable and effective; but Christopher L. Eisgruber, The Next Justice: Repairing The Supreme Court Appointments Process(Princeton, NJ: Princeton University Press, 2007), wants the selection process to produce justices with moderate judicial philosophies; and Richard Davis, Electing Justice: Fixing the Supreme Court Nomination Process (New York: Oxford University Press, 2005), thinks the process is a mess and proposes various ways of electing Supreme Court justices.\" id=\"return-footnote-469-4\" href=\"#footnote-469-4\" aria-label=\"Footnote 4\"><sup class=\"footnote\">[4]<\/sup><\/a><\/span> They do not always succeed; justices sometimes change their views over time or may surprise the president from the start. \u201cBiggest damfool mistake I ever made,\u201d said President Dwight D. Eisenhower about his appointment of Chief Justice Earl Warren, who led the Supreme Court\u2019s liberal decisions on civil rights and criminal procedure.<\/p>\n<p id=\"paletz_1.0-ch15_s03_s01_p02\" class=\"para editable block\">The following are some other factors that can influence presidents\u2019 choices of Supreme Court nominees:<span id=\"paletz_1.0-fn15_047\" class=\"footnote\"><a class=\"footnote\" title=\"See David Alistair Yalof, Pursuit of Justices: Presidential Politics and the Selection of Supreme Court Nominees (Chicago: University of Chicago Press, 1999), 4\u20137 and 17.\" id=\"return-footnote-469-5\" href=\"#footnote-469-5\" aria-label=\"Footnote 5\"><sup class=\"footnote\">[5]<\/sup><\/a><\/span><\/p>\n<ul id=\"paletz_1.0-ch15_s03_s01_l01\" class=\"itemizedlist editable block\">\n<li><strong class=\"emphasis bold\">Senate composition.<\/strong> Whether the president\u2019s party has a majority or a minority in the Senate is a factor. In 1990, when the Democrats had a majority, Republican President George H. W. Bush nominated the judicially experienced and reputedly ideologically moderate David H. Souter, who was easily approved.<\/li>\n<li><strong class=\"emphasis bold\">Timing.<\/strong> The closer to an upcoming presidential election the appointment occurs, the more necessary it is to appoint a highly qualified, noncontroversial figure acceptable to the Senate, or at least someone senators would be reluctant to reject. Otherwise, senators have an incentive to stall until after the election, when it may be too late to obtain confirmation.<\/li>\n<li><strong class=\"emphasis bold\">Public approval of the president.<\/strong> The higher the president\u2019s approval ratings, the more nominating leeway the president possesses. But even presidents riding a wave of popularity can fail to get their nominees past the Senate, as was the case with Richard Nixon and his failed nominations of Clement Haynesworth and G. Harrold Carswell in 1970. So lacking were Carswell\u2019s qualifications that a senator defended him saying \u201cEven if he were mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation . . . and a little chance.\u201d<span id=\"paletz_1.0-fn15_048\" class=\"footnote\"><a class=\"footnote\" title=\"Warren Weaver Jr., \u201cCarswell Nomination Attacked and Defended as Senate Opens Debate on Nomination,\u201d New York Times, March 17, 1970, A11.\" id=\"return-footnote-469-6\" href=\"#footnote-469-6\" aria-label=\"Footnote 6\"><sup class=\"footnote\">[6]<\/sup><\/a><\/span><\/li>\n<li><strong class=\"emphasis bold\">Interest groups.<\/strong> Nominees must usually be acceptable to interest groups that support the president and invulnerable (or at least resistant) to being depicted negatively\u2014for example, as ideological extremists\u2014by opposition groups, in ways that would significantly reduce their chances of Senate approval.<\/li>\n<\/ul>\n<p id=\"paletz_1.0-ch15_s03_s01_p03\" class=\"para editable block\">Nominations go to the Senate Judiciary Committee, which usually holds hearings. Whether senators should concern themselves with anything more than the nominee\u2019s professional qualifications is often debated. Arguably, \u201cnothing in the Constitution, historical experience, political practice, ethical norms, or statutory enactments prohibits senators from asking questions that reveal judicial nominees\u2019 views on political and ideological issues.\u201d<span id=\"paletz_1.0-fn15_049\" class=\"footnote\"><a class=\"footnote\" title=\"Albert P. Melone, \u201cThe Senate\u2019s Confirmation Role in Supreme Court Nominations and the Politics of Ideology versus Impartiality,\u201d Judicature 75, no. 2 (August\u2013September 1991): 529; also Nancy Scherer, Scoring Points: Political Activists and the Lower Federal Court Confirmation Process (Palo Alto, CA: Stanford University Press, 2005).\" id=\"return-footnote-469-7\" href=\"#footnote-469-7\" aria-label=\"Footnote 7\"><sup class=\"footnote\">[7]<\/sup><\/a><\/span><\/p>\n<p id=\"paletz_1.0-ch15_s03_s01_p04\" class=\"para editable block\">The next step is for the Judiciary Committee to vote on whether or not to send the nomination to the Senate floor. If it reaches the floor, senators then can vote to confirm or reject the nomination, or filibuster so that a vote is delayed or does not take place. Fewer than half of recent nominees to the federal appeals courts have been confirmed.<span id=\"paletz_1.0-fn15_050\" class=\"footnote\"><a class=\"footnote\" title=\"Sarah A. Binder and Forrest Maltzman, Advice and Dissent: The Struggle to Shape the Federal Judiciary (Washington, DC: Brookings Institution Press, 2009).\" id=\"return-footnote-469-8\" href=\"#footnote-469-8\" aria-label=\"Footnote 8\"><sup class=\"footnote\">[8]<\/sup><\/a><\/span><\/p>\n<\/div>\n<div id=\"paletz_1.0-ch15_s03_s02\" class=\"section\">\n<h2 class=\"title editable block\">The Media and Supreme Court Nominees<\/h2>\n<p id=\"paletz_1.0-ch15_s03_s02_p01\" class=\"para editable block\">Presidents have few opportunities to nominate Supreme Court justices, so the media provide intensive coverage of every stage of the nomination, from the time an incumbent justice leaves office until a replacement is confirmed by the Senate. The scrutiny is not necessarily damaging. President Clinton\u2019s nominees, Ruth Bader Ginsberg and Stephen Breyer, enjoyed Senate confirmation by votes of 97\u20133 and 87\u20139, respectively.<\/p>\n<p id=\"paletz_1.0-ch15_s03_s02_p02\" class=\"para editable block\">Sometimes the media determine a nominee\u2019s fate. President Reagan\u2019s nominee Douglas H. Ginsburg withdrew when news stories reported that he had smoked marijuana with some of his Harvard Law School students. The media were also intimately involved with the fates of Robert H. Bork and Clarence Thomas, particularly through their coverage of the Senate Judiciary Committee\u2019s hearings.<\/p>\n<div id=\"paletz_1.0-ch15_s03_s02_s01\" class=\"section\">\n<h2 class=\"title editable block\">The Failed Nomination of Robert H. Bork<\/h2>\n<p id=\"paletz_1.0-ch15_s03_s02_s01_p01\" class=\"para editable block\">Bork was a distinguished lawyer who had taught at Yale University, served as solicitor general and acting attorney general of the United States, and was a judge on the U.S. Court of Appeals for the DC Circuit. He opposed civil rights laws and such Supreme Court decisions as <em class=\"emphasis\">Roe v. Wade<\/em> allowing abortion. More than three hundred, mostly liberal, interest groups publicly opposed him.<\/p>\n<p id=\"paletz_1.0-ch15_s03_s02_s01_p02\" class=\"para editable block\">The anti-Bork coalition adroitly used the media against him. It barraged two thousand journalists and seventeen hundred editorial writers with detailed packets of material criticizing him. It sponsored television and newspaper advertisements attacking him and asking Americans to urge their senators to vote against him.<span id=\"paletz_1.0-fn15_051\" class=\"footnote\"><a class=\"footnote\" title=\"Michael Pertschuk and Wendy Schaetzel, The People\u2019s Rising (New York: Thunder\u2019s Mouth Press, 1989), 155; also Ethan Bronner, Battle for Justice: How the Bork Nomination Shook America (New York: Norton, 1989).\" id=\"return-footnote-469-9\" href=\"#footnote-469-9\" aria-label=\"Footnote 9\"><sup class=\"footnote\">[9]<\/sup><\/a><\/span><\/p>\n<div id=\"paletz_1.0-ch15_s03_s02_s01_f01\" class=\"figure small editable block\">\n<div id=\"attachment_470\" style=\"width: 210px\" class=\"wp-caption alignright\"><a href=\"https:\/\/s3-us-west-2.amazonaws.com\/courses-images-archive-read-only\/wp-content\/uploads\/sites\/607\/2015\/07\/21191954\/Reagan-and-Bork.jpg\"><img loading=\"lazy\" decoding=\"async\" aria-describedby=\"caption-attachment-470\" class=\"wp-image-470\" src=\"https:\/\/s3-us-west-2.amazonaws.com\/courses-images-archive-read-only\/wp-content\/uploads\/sites\/607\/2015\/07\/21191954\/Reagan-and-Bork.jpg\" alt=\"Photo of President Reagan standing beside Robert Bork.\" width=\"200\" height=\"304\" \/><\/a><\/p>\n<p id=\"caption-attachment-470\" class=\"wp-caption-text\">Robert Bork with President Reagan. Self-confident at his public nomination by President Reagan, Bork would be defeated by the campaign waged against him by his opponents.<\/p>\n<\/div>\n<p class=\"para\">The nominee, touted by his supporters as urbane, witty, and brilliant, contributed to his demise by the impression he made on national television during five contentious days, during which he candidly testified about his legal and political philosophy, defended his views on issues and cases, and responded to questions from members of the Senate Judiciary Committee. Having refused the practice sessions (known as <span class=\"margin_term\"><a class=\"glossterm\">\u201cmurder boards\u201d<\/a><\/span>) and coaching offered by the White House, the professorial, scraggly bearded Bork was outmaneuvered by his opponents on the committee, who came up with such sound bites\u2014featured on the evening television news\u2014as, \u201cYou are not a frightening man, but you are a man with frightening views.\u201d<span id=\"paletz_1.0-fn15_052\" class=\"footnote\"><a class=\"footnote\" title=\"Senator Howard Metzenbaum (D.-Ohio), cited in Mark Gitenstein, Matters of Principle (New York: Simon &amp; Schuster, 1992), 239.\" id=\"return-footnote-469-10\" href=\"#footnote-469-10\" aria-label=\"Footnote 10\"><sup class=\"footnote\">[10]<\/sup><\/a><\/span><\/p>\n<\/div>\n<p id=\"paletz_1.0-ch15_s03_s02_s01_p04\" class=\"para editable block\">The Senate rejected the nominee on October 23, 1987, by a vote of 58\u201342. The process generated a new verb in politics: <span class=\"margin_term\"><a class=\"glossterm\">\u201cto bork,\u201d<\/a><\/span> which means to unleash a lobbying and public relations campaign, using and facilitated by the media.<\/p>\n<div id=\"paletz_1.0-ch15_s03_s02_s01_n01\" class=\"callout block\">\n<h3 class=\"title\">Link:\u00a0The Bork Hearings<\/h3>\n<p id=\"paletz_1.0-ch15_s03_s02_s01_p05\" class=\"para\">Watch the <a href=\"http:\/\/www.c-spanarchives.org\/program\/994-2&amp;showFullAbstract=1\">video of the Bork hearings<\/a>.<\/p>\n<\/div>\n<\/div>\n<div id=\"paletz_1.0-ch15_s03_s02_s02\" class=\"section\">\n<h2 class=\"title editable block\">The Successful Nomination of Clarence Thomas<\/h2>\n<p id=\"paletz_1.0-ch15_s03_s02_s02_p01\" class=\"para editable block\">When a similar attack was waged against Clarence Thomas in the fall of 1991, the White House and the nominee\u2019s defenders were ready with a highly organized public relations campaign.<\/p>\n<p id=\"paletz_1.0-ch15_s03_s02_s02_p02\" class=\"para editable block\">President George H. W. Bush nominated Clarence Thomas for the seat of retiring Justice Thurgood Marshall. Both were African Americans. But in contrast to the liberal Democrat Marshall, Thomas was a conservative Republican. The nomination was opposed by leaders of liberal and feminist organizations, and supported by their conservative counterparts. It divided the civil rights community, which wanted an African American justice, but not one as conservative as Thomas.<\/p>\n<p id=\"paletz_1.0-ch15_s03_s02_s02_p03\" class=\"para editable block\">Because the nomination was shrewdly announced on the Monday afternoon preceding the Fourth of July weekend, reporters had time to transmit only the favorable story, spoon-fed from the White House, of the nominee\u2019s rise from poverty to prominence. Later, they reported some of his more controversial decisions during his one-year tenure as a federal appeals court judge.<\/p>\n<p id=\"paletz_1.0-ch15_s03_s02_s02_p04\" class=\"para editable block\">News coverage of the nomination resumed with the Senate Judiciary Committee\u2019s hearings during which Thomas, in contrast to Bork, steadfastly avoided taking clear stands on controversial issues. He had been advised by his White House advisors to \u201c(1) stress his humble roots; (2) [not] engage Senators in ideological debate; and (3) stonewall on abortion.\u201d<span id=\"paletz_1.0-fn15_053\" class=\"footnote\"><a class=\"footnote\" title=\"Mark Gitenstein, Matters of Principle\u00a0(New York: Simon &amp; Schuster, 1992), 337.\" id=\"return-footnote-469-11\" href=\"#footnote-469-11\" aria-label=\"Footnote 11\"><sup class=\"footnote\">[11]<\/sup><\/a><\/span> At the conclusion of the hearings, Senate confirmation seemed narrowly assured. Then law professor Anita Hill accused Thomas of having engaged in sexual improprieties when she worked for him at the Department of Education and the Equal Employment Opportunity Commission.<\/p>\n<p id=\"paletz_1.0-ch15_s03_s02_s02_p05\" class=\"para editable block\">With the salacious accusations, media coverage skyrocketed, especially when the hearings reopened featuring Hill\u2019s testimony and Thomas\u2019s rebuttals. Entertainment media made light of the issue: on\u00a0<em class=\"emphasis\">Saturday Night Live<\/em>, Chris Rock observed that \u201cif Clarence Thomas looked like Denzel Washington this thing would never have happened.\u201d Thomas angrily accused his detractors of attempting \u201ca high-tech lynching for uppity blacks.\u201d In the end, most senators voted as they had been leaning prior to Hill\u2019s testimony. Thomas was confirmed by a vote of 52\u201348.<\/p>\n<div id=\"paletz_1.0-ch15_s03_s02_s02_n01\" class=\"callout block\">\n<h3 class=\"title\">Link:\u00a0The Thomas Hearings<\/h3>\n<p id=\"paletz_1.0-ch15_s03_s02_s02_p06\" class=\"para\">Watch the <a href=\"http:\/\/www.c-spanarchives.org\/program\/Day1Part1\">Thomas hearings online<\/a>.<\/p>\n<\/div>\n<\/div>\n<div id=\"paletz_1.0-ch15_s03_s02_s03\" class=\"section\">\n<h2 class=\"title editable block\">Nomination of John G. Roberts Jr.<\/h2>\n<p id=\"paletz_1.0-ch15_s03_s02_s03_p01\" class=\"para editable block\">In July 2005, President George W. Bush made the first Supreme Court nomination in eleven years. He chose John G. Roberts Jr., a federal appeals court judge on the DC Circuit, to replace the moderate Republican Sandra Day O\u2019Connor, who was retiring. Roberts was then nominated to be chief justice after the death of incumbent William H. Rehnquist.<\/p>\n<div id=\"paletz_1.0-ch15_s03_s02_s03_f01\" class=\"figure small editable block\">\n<div style=\"width: 210px\" class=\"wp-caption alignright\"><img loading=\"lazy\" decoding=\"async\" class=\"\" src=\"http:\/\/2012books.lardbucket.org\/books\/21st-century-american-government-and-politics\/section_19\/356ba7aa7be0c6eb5b3d9f3313d99d0e.jpg\" alt=\"Photo of President George W. Bush in the Oval Room with John Roberts and a small crowd of journalists.\" width=\"200\" height=\"133\" \/><\/p>\n<p class=\"wp-caption-text\">The media\u2019s intense attention to Supreme Court nominees is caught in this photograph showing the gaggle of journalists around John G. Roberts as he meets with the president.<\/p>\n<\/div>\n<\/div>\n<p id=\"paletz_1.0-ch15_s03_s02_s03_p02\" class=\"para editable block\">During three days of testifying before the Senate Judiciary Committee, the erudite and engaging Roberts deflected questions by comparing judges to umpires and saying that he would be guided by the law. On September 29, 2005, the Republican-controlled Senate approved him as chief justice of the U.S. Supreme Court by a vote of 78\u201322.<\/p>\n<div id=\"paletz_1.0-ch15_s03_s02_s03_n01\" class=\"callout block\">\n<h3 class=\"title\">Link:\u00a0John G. Roberts\u2019 Opening Statement<\/h3>\n<p id=\"paletz_1.0-ch15_s03_s02_s03_p03\" class=\"para\">Watch the <a href=\"http:\/\/www.c-spanclassroom.org\/Video\/44\/Judge+John+Roberts+Opening+Statement+at+Confirmation+Hearing+for+US+Chief+Justice.aspx\">opening statement of John G. Roberts<\/a>.<\/p>\n<\/div>\n<\/div>\n<div id=\"paletz_1.0-ch15_s03_s02_s04\" class=\"section\">\n<h2 class=\"title editable block\">Nominations of Harriet Miers and Samuel A. Alito Jr.<\/h2>\n<p id=\"paletz_1.0-ch15_s03_s02_s04_p01\" class=\"para editable block\">Bush next turned to fill Sandra Day O\u2019Connor\u2019s vacant seat. He was under pressure, even in public statements from his wife, to appoint a woman to succeed O\u2019Connor. He nominated his White House general counsel and close friend, Harriet Miers. She had never served as a judge, had little expertise on constitutional matters, and held few reported positions on important issues.<\/p>\n<p id=\"paletz_1.0-ch15_s03_s02_s04_p02\" class=\"para editable block\">Conservatives, including officeholders, interest-group leaders, columnists, pundits, and bloggers, rejected the president\u2019s assurance that she was a candidate they could trust. Leaders of the Senate Judiciary Committee rejected her answers to their questions as \u201cinadequate, insufficient and insulting.\u201d Senators expressed doubts to the news media about her qualifications and knowledge of the Constitution. After twenty-four days of a ferocious barrage of criticism, all reported and amplified by the media, Ms. Miers withdrew from consideration.<\/p>\n<p id=\"paletz_1.0-ch15_s03_s02_s04_p03\" class=\"para editable block\">President Bush then nominated a federal appeals court judge, Samuel A. Alito Jr. The judge had a record from his time in the Reagan administration and from fifteen years of judicial decisions of deferring to the executive branch, favoring business, and rejecting abortion rights.<\/p>\n<p id=\"paletz_1.0-ch15_s03_s02_s04_p04\" class=\"para editable block\">In testifying before the members of the Senate Judiciary Committee, Judge Alito followed the stonewalling script. Nothing he said could be used against him by Democratic senators on the committee or by the media. A dramatic moment in his favor, shown on television, occurred when his wife, upset by the questioning directed at him, walked out of the hearings in tears. Soon after the hearings, Judge Alito was approved by 58\u201342 (54 Republicans plus 4 Democrats against 40 Democrats plus 1 Republican and 1 Independent).<\/p>\n<div id=\"paletz_1.0-ch15_s03_s02_s04_n01\" class=\"callout block\">\n<h3 class=\"title\">Links:\u00a0The Miers Nomination and Alito Nomination<\/h3>\n<p id=\"paletz_1.0-ch15_s03_s02_s04_p05\" class=\"para\">Learn more about the <a href=\"http:\/\/www.npr.org\/series\/4933926\/harriet-miers-withdraws-as-high-court-nominee\">Miers nomination<\/a>.<\/p>\n<p id=\"paletz_1.0-ch15_s03_s02_s04_p06\" class=\"para\">Learn more about the <a href=\"http:\/\/www.npr.org\/series\/4982475\/alito-s-supreme-court-nomination-confirmed\">Alito nomination<\/a>.<\/p>\n<\/div>\n<\/div>\n<div id=\"paletz_1.0-ch15_s03_s02_s05\" class=\"section\">\n<h2 class=\"title editable block\">Nominations of Sonia Sotomayor and Elena Kagan<\/h2>\n<p id=\"paletz_1.0-ch15_s03_s02_s05_p01\" class=\"para editable block\">When Justice Souter resigned from the Court, President Obama, making his first nomination, picked Sonia Sotomayor to replace him. Her confirmation hearings in July 2009 followed the script that had worked for Roberts and Alito. She refused to opine about cases or identify a judicial philosophy other than \u201cfidelity to the law.\u201d Sotomayor would be the first Hispanic and third woman ever appointed to the Court. She would not change its ideological balance, and there were no media revelations to derail her prospects. Since the Democrats had sixty votes in the Senate, it came as no surprise that she was confirmed by a vote of 68\u201331.<\/p>\n<p id=\"paletz_1.0-ch15_s03_s02_s05_p02\" class=\"para editable block\">A similar pattern followed the resignation of Justice John Paul Stevens. Obama\u2019s nominee, Solicitor General and former Dean of the Harvard Law School Elena Kagan, was unlikely to change the ideological balance on the Court. She, too, largely stonewalled the hearings and was confirmed by the Senate on August 5, 2010, by a vote of 63\u201337.<\/p>\n<div id=\"paletz_1.0-ch15_s03_s02_s05_n01\" class=\"callout block\">\n<h3 class=\"title\">Links:\u00a0The Sotomayor Nomination and Kagan Nomination<\/h3>\n<p id=\"paletz_1.0-ch15_s03_s02_s05_p03\" class=\"para\">Learn more about the <a href=\"http:\/\/www.npr.org\/series\/106462774\/sonia-sotomayor-s-supreme-court-nomination\">Sotomayor nomination<\/a>.<\/p>\n<p id=\"paletz_1.0-ch15_s03_s02_s05_p04\" class=\"para\">Learn more about the <a href=\"http:\/\/www.npr.org\/series\/126664425\/elena-kagan-s-supreme-court-nomination\">Kagan nomination<\/a>.<\/p>\n<\/div>\n<div id=\"paletz_1.0-ch15_s03_s02_s05_n02\" class=\"key_takeaways editable block\">\n<h2 class=\"title\">Key Takeaways<\/h2>\n<p id=\"paletz_1.0-ch15_s03_s02_s05_p05\" class=\"para\">Presidents usually look to nominate as federal judges people who share their ideological, policy, and partisan views. Nominations attract intense scrutiny from interest groups and the media and can be controversial and contentious. They are subject to confirmation by the Senate, which may delay, block, or approve them. We explain why the nominations of Robert H. Bork and Harriet Miers failed and why those of Clarence Thomas, John G. Roberts Jr., Samuel A. Alito Jr., Sonia Sotomayor, and Elena Kagan were successful.<\/p>\n<\/div>\n<\/div>\n<\/div>\n\n\t\t\t <section class=\"citations-section\" role=\"contentinfo\">\n\t\t\t <h3>Candela Citations<\/h3>\n\t\t\t\t\t <div>\n\t\t\t\t\t\t <div id=\"citation-list-469\">\n\t\t\t\t\t\t\t <div class=\"licensing\"><div class=\"license-attribution-dropdown-subheading\">CC licensed content, Shared previously<\/div><ul class=\"citation-list\"><li>21st Century American Government. <strong>Authored by<\/strong>: Anonymous. <strong>Provided by<\/strong>: Lardbucket. <strong>Located at<\/strong>: <a target=\"_blank\" href=\"http:\/\/2012books.lardbucket.org\/books\/21st-century-american-government-and-politics\/s19-03-selecting-federal-judges.html\">http:\/\/2012books.lardbucket.org\/books\/21st-century-american-government-and-politics\/s19-03-selecting-federal-judges.html<\/a>. <strong>License<\/strong>: <em><a target=\"_blank\" rel=\"license\" href=\"https:\/\/creativecommons.org\/licenses\/by-nc-sa\/4.0\/\">CC BY-NC-SA: Attribution-NonCommercial-ShareAlike<\/a><\/em><\/li><\/ul><div class=\"license-attribution-dropdown-subheading\">Public domain content<\/div><ul class=\"citation-list\"><li>Robert Bork with President Reagan. <strong>Authored by<\/strong>: Unknown. <strong>Located at<\/strong>: <a target=\"_blank\" href=\"https:\/\/commons.wikimedia.org\/wiki\/File:Reagan_with_Robert_Bork_1987.jpg\">https:\/\/commons.wikimedia.org\/wiki\/File:Reagan_with_Robert_Bork_1987.jpg<\/a>. <strong>License<\/strong>: <em><a target=\"_blank\" rel=\"license\" href=\"https:\/\/creativecommons.org\/about\/pdm\">Public Domain: No Known Copyright<\/a><\/em><\/li><li>George W. Bush and John Roberts. <strong>Authored by<\/strong>: Paul Morse. <strong>Provided by<\/strong>: White House. <strong>Located at<\/strong>: <a target=\"_blank\" href=\"https:\/\/commons.wikimedia.org\/wiki\/File:Johnroberts3.jpeg\">https:\/\/commons.wikimedia.org\/wiki\/File:Johnroberts3.jpeg<\/a>. <strong>License<\/strong>: <em><a target=\"_blank\" rel=\"license\" href=\"https:\/\/creativecommons.org\/about\/pdm\">Public Domain: No Known Copyright<\/a><\/em><\/li><\/ul><\/div>\n\t\t\t\t\t\t <\/div>\n\t\t\t\t\t <\/div>\n\t\t\t <\/section><hr class=\"before-footnotes clear\" \/><div class=\"footnotes\"><ol><li id=\"footnote-469-1\">For a study of lower federal court selection, see Sheldon Goldman, <em class=\"emphasis\">Picking Federal Judges<\/em>(New Haven, CT: Yale University Press, 1997). <a href=\"#return-footnote-469-1\" class=\"return-footnote\" aria-label=\"Return to footnote 1\">&crarr;<\/a><\/li><li id=\"footnote-469-2\">From Tom Charles Huston to President Richard Nixon, 25 March 1969, in WHCF ExFG 50, the Judicial Branch (1969\u20131970), Box 1, White House Central Files, FG 50, Nixon Presidential Materials Project, College Park, Maryland. <a href=\"#return-footnote-469-2\" class=\"return-footnote\" aria-label=\"Return to footnote 2\">&crarr;<\/a><\/li><li id=\"footnote-469-3\">Lee Epstein and Jeffrey A. Segal, <em class=\"emphasis\">The Politics of Judicial Appointments<\/em> (New York: Oxford University Press, 2005). <a href=\"#return-footnote-469-3\" class=\"return-footnote\" aria-label=\"Return to footnote 3\">&crarr;<\/a><\/li><li id=\"footnote-469-4\">Michael Comiskey, <em class=\"emphasis\">Seeking Justices: The Judging of Supreme Court Nominees<\/em> (Lawrence: University Press of Kansas, 2004), thinks the confirmation process is acceptable and effective; but Christopher L. Eisgruber, <em class=\"emphasis\">The Next Justice: Repairing The Supreme Court Appointments Process<\/em>(Princeton, NJ: Princeton University Press, 2007), wants the selection process to produce justices with moderate judicial philosophies; and Richard Davis, <em class=\"emphasis\">Electing Justice: Fixing the Supreme Court Nomination Process<\/em> (New York: Oxford University Press, 2005), thinks the process is a mess and proposes various ways of electing Supreme Court justices. <a href=\"#return-footnote-469-4\" class=\"return-footnote\" aria-label=\"Return to footnote 4\">&crarr;<\/a><\/li><li id=\"footnote-469-5\">See David Alistair Yalof, <em class=\"emphasis\">Pursuit of Justices: Presidential Politics and the Selection of Supreme Court Nominees<\/em> (Chicago: University of Chicago Press, 1999), 4\u20137 and 17. <a href=\"#return-footnote-469-5\" class=\"return-footnote\" aria-label=\"Return to footnote 5\">&crarr;<\/a><\/li><li id=\"footnote-469-6\">Warren Weaver Jr., \u201cCarswell Nomination Attacked and Defended as Senate Opens Debate on Nomination,\u201d <em class=\"emphasis\">New York Times<\/em>, March 17, 1970, A11. <a href=\"#return-footnote-469-6\" class=\"return-footnote\" aria-label=\"Return to footnote 6\">&crarr;<\/a><\/li><li id=\"footnote-469-7\">Albert P. Melone, \u201cThe Senate\u2019s Confirmation Role in Supreme Court Nominations and the Politics of Ideology versus Impartiality,\u201d <em class=\"emphasis\">Judicature<\/em> 75, no. 2 (August\u2013September 1991): 529; also Nancy Scherer, <em class=\"emphasis\">Scoring Points: Political Activists and the Lower Federal Court Confirmation Process<\/em> (Palo Alto, CA: Stanford University Press, 2005). <a href=\"#return-footnote-469-7\" class=\"return-footnote\" aria-label=\"Return to footnote 7\">&crarr;<\/a><\/li><li id=\"footnote-469-8\">Sarah A. Binder and Forrest Maltzman, <em class=\"emphasis\">Advice and Dissent: The Struggle to Shape the Federal Judiciary<\/em> (Washington, DC: Brookings Institution Press, 2009). <a href=\"#return-footnote-469-8\" class=\"return-footnote\" aria-label=\"Return to footnote 8\">&crarr;<\/a><\/li><li id=\"footnote-469-9\">Michael Pertschuk and Wendy Schaetzel, <em class=\"emphasis\">The People\u2019s Rising<\/em> (New York: Thunder\u2019s Mouth Press, 1989), 155; also Ethan Bronner, <em class=\"emphasis\">Battle for Justice: How the Bork Nomination Shook America<\/em> (New York: Norton, 1989). <a href=\"#return-footnote-469-9\" class=\"return-footnote\" aria-label=\"Return to footnote 9\">&crarr;<\/a><\/li><li id=\"footnote-469-10\">Senator Howard Metzenbaum (D.-Ohio), cited in Mark Gitenstein, <em class=\"emphasis\">Matters of Principle<\/em> (New York: Simon &amp; Schuster, 1992), 239. <a href=\"#return-footnote-469-10\" class=\"return-footnote\" aria-label=\"Return to footnote 10\">&crarr;<\/a><\/li><li id=\"footnote-469-11\">Mark Gitenstein, <em class=\"emphasis\">Matters of Principle\u00a0<\/em>(New York: Simon &amp; Schuster, 1992), 337. <a href=\"#return-footnote-469-11\" class=\"return-footnote\" aria-label=\"Return to footnote 11\">&crarr;<\/a><\/li><\/ol><\/div>","protected":false},"author":923,"menu_order":11,"template":"","meta":{"_candela_citation":"[{\"type\":\"cc\",\"description\":\"21st Century American Government\",\"author\":\"Anonymous\",\"organization\":\"Lardbucket\",\"url\":\"http:\/\/2012books.lardbucket.org\/books\/21st-century-american-government-and-politics\/s19-03-selecting-federal-judges.html\",\"project\":\"\",\"license\":\"cc-by-nc-sa\",\"license_terms\":\"\"},{\"type\":\"pd\",\"description\":\"Robert Bork with President Reagan\",\"author\":\"Unknown\",\"organization\":\"\",\"url\":\"https:\/\/commons.wikimedia.org\/wiki\/File:Reagan_with_Robert_Bork_1987.jpg\",\"project\":\"\",\"license\":\"pd\",\"license_terms\":\"\"},{\"type\":\"pd\",\"description\":\"George W. 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