On April 6, 1994, Associate Justice Harry Blackmun announced his retirement (and assumption of senior status), which ultimately took effect August 3, 1994.[3] President Clinton announced Stephen Breyer as Blackmun's replacement on May 13, 1994, with the United States Senate confirming Breyer on July 29, 1994.[4]
Overview
Throughout much of the history of the United States, the Supreme Court of the United States was considered the least powerful branch of the government, and nominations to that body, although important, were not the source of great political controversy as they are today. Furthermore, Clinton's Supreme Court nominations were the first by a Democratic president since President Lyndon Johnson's controversial and failed nomination of Abe Fortas to be Chief Justice of the United States in 1968.
Politics
When asked about the kind of justices he would appoint to the Supreme Court, President Bill Clinton insisted that he had no litmus test for his justice, but at the same time, that he only wanted justices who would be pro-choice when it came to abortion. "I will appoint judges to the Supreme Court who believe in the constitutional right to privacy, including the right to choose", Clinton said in an interview on April 5, 1992.[5] In an interview on June 18, 1992, Clinton said, "I don't believe in the litmus test for Supreme Court judges, but I do think that the Court has been so politicized by the recent appointments under the last two presidents that we ought to appoint someone who can provide some balance; someone who everybody will say, 'There is someone who can be a great judge and someone who believes in the Constitution, the Bill of Rights and protecting the rights of ordinary citizens to be let alone from undue intrusion by their government.'"[5] In addition, Clinton said he felt it was unhealthy that the court was dominated by former judges, most of whom, he felt, lacked adequate real-world experience. Clinton also made clear he was interested in shifting the dynamics of the court. "Look, the court is totally fragmented and it's dominated by Republican appointees", he said. "It's not enough for someone to vote the right way. We've got to get someone who will move people, who will persuade the others to join them. It's what Warren did. I want someone like that."[6]
Ruth Bader Ginsburg nomination
Ginsburg accepting her nomination from Bill Clinton
After Byron White announced his retirement on March 19, 1993, Clinton began a weeks-long journey through consideration of an unusually large number of candidates. The name that came up that interested Clinton the most was that of New York Governor Mario Cuomo. Clinton offered White's seat first to Cuomo, who initially had told confidants that he was willing to take the seat, but then changed his mind and faxed Clinton a letter telling him that his duty to residents of his state was more important than his desire to serve on the court.
Liberal lawyers wanted Harvard Law professor and constitutional scholar Laurence Tribe, but Clinton and his aides next considered several candidates as "outside-the-box" choices. Clinton played with the idea of nominating a brilliant political philosopher instead of a practicing attorney. Professors Stephen L. Carter of Yale and Michael Sandel of Harvard would have fit the bill, and the wildest fantasy put forth was the nomination of Clinton's wife, Hillary Clinton, but there was a problem associated with such a selection. George Stephanopoulos, a Clinton aide at the time, writes that the idea was dropped because the president's "choice had to be ratified by the Senate, where Republicans hadn't forgotten the rejection of Robert Bork, and Democrats were reeling from their recent encounters with Zoe Baird, Kimba Wood, and Lani Guinier. Sexy was good, but safe was better. We simply couldn't afford another failed nomination." Stephanopoulos quotes Clinton himself saying, "We don't need another gang-that-couldn't-shoot-straight story."[7][8]
Clinton then turned to other politicians. First was U.S. Senator George J. Mitchell of Maine, who declined on the spot, desiring to stay in the Senate and help to pass Clinton's legislation. Clinton next approached his Secretary of Education, Richard Riley, a former Governor of South Carolina who also said no.[5] "I was a mediocre country lawyer", Riley told Clinton. "This isn't my thing."[6] Clinton next considered his Secretary of the Interior, Bruce Babbitt, a former Arizona Governor. Clinton prepared to nominate Babbitt when two problems surfaced – a false published report about gambling debts in Las Vegas and opposition to Babbitt's nomination voiced by Senator Orrin Hatch, who was the ranking Republican on the United States Senate Judiciary Committee. Hatch had told Clinton that Babbitt's strong pro-environmental views had enraged a group of Republican senators in the western United States who might take revenge either on Babbitt's nomination or on the candidate Clinton nominated to replace him in the Department of the Interior. Clinton chose not to proceed with Babbitt's nomination.[5][6][9]
Clinton then turned to existing judges. He considered Eighth Circuit judge Richard S. Arnold, who was not a close friend of Clinton's but who was from Clinton's home state of Arkansas. The President very much wanted to nominate Arnold but feared the nomination might be viewed as cronyism. He then weighed Sixth Circuit judge Gilbert S. Merritt, who was a family friend of Vice President Al Gore. However, a problem surfaced relating to Merritt's tenure as a U.S. attorney in the 1960s, and Clinton decided not to proceed with him. Clinton then asked his staff about Janie Shores, who had been the first woman to serve on the Alabama Supreme Court but who was not well known in Washington, D.C. legal circles. In addition, Shores' constitutional views were completely unknown to Clinton or anyone else on his team. "You are not nominating Janie Shores to the Supreme Court", White House counsel Bernard W. Nussbaum told Clinton. "No one knows who she is. This is insane."[6]
The next name Clinton considered was that of First Circuit judge Stephen Breyer. Clinton's staff had liked Breyer, but given an injury that he had sustained just a few days earlier, Breyer was in a significant amount of pain. During his interview with Clinton, Breyer was short of breath and in pain. Clinton ultimately decided that Breyer seemed "heartless." "I don't see enough humanity", Clinton told his staff. "I want a judge with soul."[6]
Clinton then considered a list of "firsts" for diversity purposes: David Tatel, a Washington lawyer who had served in the Carter Administration who would be the first blind justice; José A. Cabranes, a district court judge who would be the first Hispanic justice, and D.C. Circuit judge Ruth Bader Ginsburg, who, Stephanopoulos writes, "would be the first Jewish justice since Abe Fortas, and the first woman to be appointed by a Democrat. More important, she was a pioneer in the legal fight for women's rights – a female Thurgood Marshall."[7][8] In addition, Ginsburg was noted as moderate-to-conservative on criminal matters and had a different rationale for supporting Roe v. Wade than most liberals: she considered laws banning abortion a form of sex discrimination rather than a violation of privacy. Hatch told Clinton that he would support Ginsburg as well.[6]
At that point, however, Cuomo's oldest son who served as an official in the Clinton Administration, Andrew Cuomo, contacted Clinton's staff to inquire if the President had made a final decision yet. Mario Cuomo, his son said, believed that Clinton was about to name Breyer to the court and as a result thought that Clinton would not name two white males in a row. As such, the governor believed that his own chances were now or never. Clinton still was interested in nominating Cuomo, telling his staff that the governor "will sing the song of America. It'll be like watching Pavarotti at Christmas time." Clinton then interviewed Ginsburg, and then took a phone call from Cuomo, who backed out of consideration for a second time. The next day, on June 15, 1993, Clinton announced that he had chosen Ginsburg.[6] The Senate confirmed Ginsburg in a 96–3 vote on August 3, 1993.[10] Senators Jesse Helms (R-NC), Don Nickles (R-OK) and Bob Smith (R-NH) voted against the nomination. Donald Riegle (D-MI) did not vote.[10]
Stephen Breyer nomination
After Harry Blackmun announced his retirement on April 6, 1994, Clinton again asked Mitchell, who had announced that he would not stand for reelection in November 1994, to be his nominee. Mitchell told Clinton that he did not want to be a Supreme Court Justice. Clinton also asked Babbitt, who asked not to be considered.[6]
At that point, Clinton again considered Arnold, who had been recommended by over 100 federal judges in a joint letter written after Blackmun had retired. Clinton's willingness to proceed with Arnold, however, was complicated by the fact that Arnold had been diagnosed with low-grade non-Hodgkin's lymphoma in 1976 and had since suffered from tumors that had spread to other parts of his body. Although Arnold was functioning normally, his doctor told the President that Arnold had cancer all through his body and that there was no way he could say that Arnold's disease "would not interfere" with Supreme Court duties.[6]
Following is a list of individuals who were mentioned in various news accounts and books as having been considered by Clinton or being the most likely potential nominees for a Supreme Court appointment under Clinton:
Stephen Gerald Breyer is an American lawyer and jurist who served as an associate justice of the U.S. Supreme Court from 1994 until his retirement in 2022. He was nominated by President Bill Clinton, and replaced retiring justice Harry Blackmun. Breyer was generally associated with the liberal wing of the Court. He is now the Byrne Professor of Administrative Law and Process at Harvard Law School.
Bruce Edward Babbitt is an American attorney and politician who served as the 47th United States Secretary of the Interior from 1993 to 2001 under President Bill Clinton. He previously served as the 16th governor of Arizona from 1978 to 1987 and was a candidate for President of the United States in the 1988 Democratic primaries.
Harry Andrew Blackmun was an American lawyer and jurist who served as an associate justice of the Supreme Court of the United States from 1970 to 1994. Appointed by President Richard Nixon, Blackmun ultimately became one of the most liberal justices on the Court. He is best known as the author of the Court's opinion in Roe v. Wade.
Clement Furman Haynsworth Jr. was a United States circuit judge of the United States Court of Appeals for the Fourth Circuit. He was also an unsuccessful nominee for the United States Supreme Court in 1969.
The demographics of the Supreme Court of the United States encompass the gender, ethnicity, and religious, geographic, and economic backgrounds of the 116 people who have been appointed and confirmed as justices to the Supreme Court. Some of these characteristics have been raised as an issue since the court was established in 1789. For its first 180 years, justices were almost always white male Protestants of Anglo or Northwestern European descent.
Richard Allen Griffin is a United States circuit judge of the United States Court of Appeals for the Sixth Circuit. Previously, he was a judge on the Michigan Court of Appeals.
Gilbert Stroud Merritt Jr. was an American lawyer and jurist. He served as a United States circuit judge of the United States Court of Appeals for the Sixth Circuit from 1977 to 2022.
The Thurmond rule in U.S. politics posits that, at some point in a U.S. presidential election year, the U.S. Senate should not confirm the president's nominees to the federal judiciary, except under certain circumstances. The basic premise is that the President and the Senate majority usually are of opposite political ideologies, and as such the Judiciary Committee will not allow an appointee to receive a floor vote from the entire Senate during a presidential election year.
Helene N. White is a senior United States circuit judge of the United States Court of Appeals for the Sixth Circuit. Previously, she was a judge on the Michigan Court of Appeals.
During President Jimmy Carter's presidency, he nominated four people for four different federal appellate judgeships who were not processed by the Democratic-controlled Senate Judiciary Committee before Carter's presidency ended. None of the four nominees were renominated by Carter's successor, President Ronald Reagan. Three of the nominees who were not processed were nominated after July 1, 1980, the traditional start date of the unofficial Thurmond rule during a presidential election year. All four seats eventually were filled by appointees of President Ronald Reagan.
During President Lyndon B. Johnson's presidency, federal judicial appointments played a central role. Johnson appointed Abe Fortas and Thurgood Marshall to the Supreme Court of the United States in just over five years as president.
Speculation abounded over potential nominations to the Supreme Court of the United States by Ronald Reagan even before his presidency officially began, due to the advanced ages of several justices, and Reagan's own highlighting of Supreme Court nominations as a campaign issue. Reagan had promised "to appoint only those opposed to abortion and the 'judicial activism' of the Warren and Burger Courts". Conversely, some opposed to Reagan argued that he could "appoint as many as five Justices" and would "use the opportunity to stack the Court against women, minorities and social justice".
President Richard Nixon entered office in 1969 with Chief Justice Earl Warren having announced his retirement from the Supreme Court of the United States the previous year. Nixon appointed Warren E. Burger to replace Earl Warren, and during his time in office appointed three other members of the Supreme Court: Associate Justices Harry Blackmun, Lewis F. Powell, and William Rehnquist. Nixon also nominated Clement Haynsworth and G. Harrold Carswell for the vacancy that was ultimately filled by Blackmun, but the nominations were rejected by the United States Senate. Nixon's failed Supreme Court nominations were the first since Herbert Hoover's nomination of John J. Parker was rejected by the Senate.
With the advice and consent of the United States Senate, the president of the United States appoints the members of the Supreme Court of the United States, which is the highest court of the federal judiciary of the United States. Following his victory in the 2016 presidential election, Republican Donald Trump took office as president on January 20, 2017, and faced an immediate vacancy on the Supreme Court due to the February 2016 death of Associate Justice Antonin Scalia.
Donald Trump, President of the United States from 2017 to 2021, entered office with a significant number of judicial vacancies, including a Supreme Court vacancy due to the death of Antonin Scalia in February 2016. During the first eight months of his presidency, he nominated approximately 50 judges, a significantly higher number than any other recent president had made by that point in his presidency. By June 24, 2020, 200 of his Article III nominees had been confirmed by the United States Senate. According to multiple media outlets, Trump significantly impacted the composition of the Supreme Court and lower courts during his tenure.
Toby Jay Heytens is an American attorney and law professor who is a United States circuit judge of the United States Court of Appeals for the Fourth Circuit. He served as the solicitor general of Virginia from 2018 to 2021.
Candace Rae Jackson-Akiwumi is an American attorney who has served as a United States circuit judge of the United States Court of Appeals for the Seventh Circuit since July 2021. She was previously a staff attorney at the federal defender program in the Northern District of Illinois from 2010 to 2020 and a partner at Zuckerman Spaeder in Washington, D.C., from 2020 to 2021.
On February 25, 2022, President Joe Biden announced that he would nominate Ketanji Brown Jackson to the position of associate justice of the Supreme Court of the United States to fill the vacancy by Stephen Breyer, who announced his retirement on January 27, 2022, at the age of 83. Jackson, a former law clerk of Breyer, was a judge on the United States Court of Appeals for the District of Columbia Circuit, having been appointed by Biden in 2021. Jackson is the first Black woman in U.S. history to be nominated to serve on the U.S. Supreme Court.
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