How To Pick a Supreme Court Justice

Read everything they’ve written, then call the FBI.

Supreme Court Justice Sandra Day O’Connor retired today, giving President Bush the chance to name the first new justice in 11 years. A handful of possible replacements have already been tossed around. So, how will the White House pick its nominee?

Each administration has its own vetting methods, but the overall process is the same no matter who’s in the Oval Office. The president relies on the White House counsel and the attorney general to help make the decision. A list of perhaps 50 candidates gets whittled down on the basis of their job history, legal opinions, published articles, and willingness to submit to an extensive background check. Each finalist must fill out a lengthy questionnaire about their finances, where they’ve lived, what clubs they’ve joined, whether they’ve ever taken drugs or cheated on their taxes, and so on. Each candidate must also submit to an off-the-record interview. The president typically meets with the final candidates himself. The whole process can take months (although the Bush administration has suggested it will act before Congress takes off for the summer).

Judges usually won’t state their attitudes on particular issues (like abortion) if asked directly. Consequently, the White House will make sure a candidate has a long record of decisions that are in accord with official policy. Lawyers in the administration will also review media reports on the candidate and any private, unpublished documents that he or she provides.

The Clinton administration outsourced the early vetting stages from the Justice Department to a team of 200 private, volunteer lawyers whose identities were kept secret. Each candidate was assigned a team of lawyers, and each team member was assigned a different task—one might read through legal opinions, while another reviewed personal history. (Before the Clinton years, the vetting process was somewhat less involved. The Ford administration recruited a small group of academics to study the candidates’ legal positions, but did nothing on the scale of Clinton’s team.) The Bush Administration will get vetting help from an outside group called the Committee for Justice that’s headed by former White House Counsel C. Boyden Gray.

Gray helped coordinate the nomination of David Souter by George H. W. Bush in 1990. According to a Washington Post article from the time, Gray stashed Souter and the other finalist, Edith Jones, in “safe houses” (the homes of administration officials) to avoid the prying eyes of the press. Gray then went to the houses to conduct final face-to-face interviews about their backgrounds. The next day, he brought Souter and Jones to the White House for meetings with President Bush.

Opinions vary on whether the meetings with the president are important. President Reagan’s White House meeting with Sandra Day O’Connor seems to have been a formality. Official reports say the two spoke for an hour, but O’Connor later reported that it was closer to 15 minutes. Clinton met for long lunches with Ruth Bader Ginsburg and Stephen Breyer before making his first nomination; officials claimed that the deciding factor was his rapport with Ginsburg, and not the fact that Breyer had failed to pay social security taxes for his hired help. Apparently, Clinton and Ginsburg just “clicked.” (He nominated Breyer on the next go-round.)

Next question?

Explainer thanks James Hamilton of Swidler Berlin and Ron Klain of Revolution.