The opportunity to fill a vacancy is a real plum for the President, for it provides him with the opportunity to shape the Court and, perhaps, with some luck greatly influence the interpretation of the Constitution and American law. The President is the only person who truly knows why someone has been nominated to the Supreme Court. Historical practice reveals four primary considerations: objective merit, personal friendship, balancing representativeness on the Court, and political and ideological compatibility. Among these considerations, the concern to balance representation—geographic, religious, race and gender—have become prominent in the reasoning of Presidents from both political parties. The interest in race and gender, no doubt, carry some political weight. President Ronald Reagan, for example, was heralded by advocates of gender equality for nominating Justice Sandra Day O’Connor to the Supreme Court, the first time that a woman had been nominated to the Court. The death of Justice Thurgood Marshall, a liberal icon and the first African-American named to the Court, created another historic opportunity for President George H.W. Bush to nominate a second African-American jurist, Clarence Thomas, which he did, and immediately received political kudos for his wisdom and vision. President Barack Obama’s nomination to the Court of Sonia Sotomayor, an eminently well-qualified lawyer and federal court jurist, and the first Latina to be nominated to the High Bench, was perceived to promote the Obama Administration’s standing among the Hispanic Community.
While Presidents strive to nominate those who might share his world view and approach to constitutional interpretation, which would be key to an effort to “pack the Court,” the effort has been uneven at best. On several occasions, Presidents have publicly expressed their disappointment in those whom they have sent to the Court. President Theodore Roosevelt did not mince words in his criticism of Justice Oliver Wendell Holmes, declaring that he “could carve out of a banana a judge with more backbone than Holmes’.” President Dwight D. Eisenhower’s disappointment in two of his nominees may be unrivaled. Asked by a reporter what he considered to be his biggest mistake as President, Eisenhower barely paused: “The biggest damn mistake I ever made was naming Earl Warren to the Supreme Court.” Chief Justice Warren, with Justice William Brennan, another Eisenhower “mistake,” led what has been known as the Warren Court Revolution, a dramatic shift in the Supreme Court’s interpretation of civil rights and civil liberties. A presidential search for ideological and philosophical compatibility in a nominee is one thing, but the predictions of how a Justice will perform is made more difficult by a variety of factors, including the emergence of new issues; a sense of heightened responsibility as a member of the Supreme Court to chisel precedents, rather than following them as a lower court judge; and perhaps, among other considerations, a changing world view that encourages a Justice to take a broader view of duties. Several Justices have seemed to move to the left once they arrived at the Court, leaving behind a more narrow view of the Court and the Constitution. Justice Harry Blackmun, a Nixon appointee, was viewed as a rock-ribbed conservative, widely expected to stay within the shadow of his equally conservative Minnesota twin, Chief Justice Warren Burger, also a Nixon nominee. But after a few years on the Court, Justice Blackmun found his own voice and, by the end of his distinguished career on the Court, had become one of the more liberal Justices. When, in a post-retirement interview, he was asked to explain his move to the left, Blackmun replied: “I didn’t move to the left; the Court moved to the right.”
The disappointment that Presidents have harbored about the decisions of their nominees to the Supreme Court may be viewed from another angle: judicial implementation of checks and balances on the exercise of executive power. While the Court has exhibited broad deference to the President in the area of foreign affairs and national security for the past 80 years, it does, at least occasionally, check the executive branch, more so in domestic than foreign affairs, as reflected in landmark cases. The Steel Seizure and Watergate Tapes Case are illustrative.
In 1952, in Youngstown Sheet & Tube v. Sawyer Co. (Steel Seizure Case), the Court declared President Truman’s seizure of the steel mills unconstitutional. Truman, a Democrat, was surprised, even angered by the Court’s ruling. All nine members of the Court had been appointed by either Truman or his predecessor, Franklin D. Roosevelt. As a long-time friend and poker-playing buddy with the Justices, Truman thought he was on solid ground in seizing the steel industry as a means of preventing a nationwide strike that he believed would undermine America’s ability to fight the war in Korea and rebuild Europe through the Marshall Plan. What’s more, he had been told by two members of the Court, Chief Justice Fred Vinson and Associate Justice Tom Clark, both of whom he had nominated, that his action would be upheld by the Court. But his assertion of inherent presidential power was rebuffed by the High Tribunal. The Court’s rebuke chilled the friendly relations between the Justices and the Presidents. Months later, at a reception, Truman told his old friend, and fellow New Dealer, Justice Hugo Black: “I don’t agree with your jurisprudence, but by golly I sure do like your bourbon.” To his credit, Truman complied with the Court’s decision, acknowledging his duty to faithfully execute the laws.
In United States v. Nixon (Watergate Tapes Case) in 1974, Chief Justice Warren Burger wrote for a unanimous Court in rejecting President Nixon’s claim of absolute executive privilege to withhold recorded conversations of White House deliberations from disclosure in a criminal trial. Burger was, of course, nominated to the Court by Nixon, as were Harry Blackmun and Lewis Powell. While Nixon disagreed with the Court’s ruling, he nonetheless exhibited respect for it and complied with the ruling. The Court’s check on Truman and Nixon were delivered at a crucial juncture in American history when the citizenry was deeply concerned about the implications of their respective claims to executive power. Each claim—Truman’s assertion of inherent power and Nixon’s argument about absolute executive privilege—threatened the doctrine of checks and balances and the rule of law. As critics have pointed out, if Truman and Nixon and prevailed in their contentions, it would have been difficult to draw boundaries around the scope of presidential authority.