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December 23, 2008

The virtues of SCOTUS selection serendipity

USA Today has this intriguing new article which spotlights that, even when it comes to Supreme Court nominations, who you know may be just as important as what you know.  And, as in comedy, timing may be more important than all other aspects of one's performance.  The piece is headlined "Timing and luck crucial for seat on high court; Connections will matter as much as credentials if spots open up during Obama's presidency," and here is how it begins:

President-elect Barack Obama is still weeks away from taking the oath of office.  The Supreme Court has no vacancies.  That hasn't stopped rising anticipation about a court opening that could shape the new president's legacy.  When it comes to such vacancies, nothing is ever certain for a president — let alone for a potential nominee.

Justice John Paul Stevens, 88 and in the sights of those watching for court retirements, might not have been appointed in 1975 if President Gerald Ford's attorney general had been someone other than Edward Levi — a Chicago friend and colleague of Stevens'.

Anthony Kennedy, named in 1988, and Samuel Alito, in 2006, won their seats after other presidential choices were rejected or withdrawn.

Sandra Day O'Connor, the first female justice, might not have been tapped in 1981 if she had not, through a fluke, met Chief Justice Warren Burger on a houseboat vacation.  The selection process, O'Connor said later, is a "classic example of being the right person in the right spot at the right time.  Simply stated, you must be lucky."

As winners and losers can attest, Supreme Court appointments — on the surface all about credentials — often come down to good timing and serendipity.  Connections matter, too, as does successfully maneuvering through the Senate, which must confirm high court nominees.  A nominee typically emerges from the consensus of top presidential advisers, so those Obama is choosing for top White House and Department of Justice jobs might, down the road, help determine a high court choice.

It has always struck me as valuable and beneficial that Supreme Court openings and nominations have often proven unpredictable and serendipitous.  Indeed, as some of my prior posts have suggested, I am concerned that the modern selection process has come to predictably favor federal circuit court judges, which I fear can have a skewing impact on both the work of SCOTUS and also the work of some federal circuit court judges.  Perhaps we should also route for more serendipitous stories emerging in the Supreme Court's not-too-distant future.

Some related (and mostly dated) SCOTUS personnel/docket posts:

December 23, 2008 at 11:48 AM | Permalink


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I am not so sanguine about this. To cite just one example, the fact that Henry Friendly was passed over for lesser lights was a great loss to American law.

Posted by: Kent Scheidegger | Dec 23, 2008 1:10:33 PM

Interesting point, though I'm not sure how far it goes. Serendipity plays a role at the very end in picking someone from the short list, but the short list is usually generated in a predictable fashion and mostly includes federal court of appeals judges. Harriet Miers was a bit out of left field, but that was a disaster.

I agree with Kent about Judge Friendly. And if Justice Kennedy is the poster child for serendipity, then that's a strike against it in my view.

Posted by: | Dec 23, 2008 4:23:51 PM

Couldn't Obama consider for SCOTUS a person with training in math, science, engineering or technology? Of the current SCOTUS, only Breyer has ever showed any sophistication in science. The others are all the usual wishy-washy English, History, Poly Sci and International Affairs types, who not only can't do math, but who are also narrowly educated, not speaking a foreign language fluently, for example.

The American people deserve better. There are taxi drivers in Istanbul who are more worldly-wise. And there must be millions of Americans who have gained some math and science sophistication, few of them lawyers, of course.

A sensible nomination is probably too much to ask of a president who is a lawyer and who also does no science or math, and who has not mastered a foreign language.

Posted by: jimbino | Dec 23, 2008 6:16:06 PM

Yes, apparently, if there's one thing SCOTUS needs more than anything, it's is an affirmative action nominee to represent nerds.

Posted by: | Dec 23, 2008 6:32:46 PM

I am a recently-appointed district judge and can assure you that serendipity plays a role in many, if not most, appointments to the federal bench. Justice O'Connor said it best; being the right person in the right place at the right time is the key.

On another note, I regularly read your blog and find it very insightful and always worth my time.

Posted by: janet neff | Dec 26, 2008 9:50:47 AM

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