Friday, June 18, 2010

Supreme Court Nominations in Historical Perspective (Part One)

As the opening day of hearings on Elena Kagan’s nomination to the Supreme Court approaches, some historical reflections on the processes of nomination and confirmation seem appropriate. As any historian will tell you about essentially everything, it wasn’t always this way, and yet there is nothing new under the sun.

1. I’ve been struck by two novel features of the process – the presidential interview and the courtesy calls on Senators. I don’t know precisely when these practices started, although I suspect that exploring the question might make for a nice short paper. Here are some speculations about these practices. My speculations are clearly large-scale generalizations, and there will inevitably be exceptions, but my guess is that they are largely accurate.

Interviews and courtesy calls didn’t happen earlier because presidents and senators knew the nominees – not just knew of them by reputation, but actually knew them personally because the nominees were part of a national political class the members of which interacted with each other with some regularity. (Some exceptions might fit into a subcategory, in which nominees were thought to be representatives of particular regions; in these instances the hypothesis would be that senators from the relevant region knew the nominees.) Nominees today are not known to presidents and senators because the national political class has expanded enormously.

Another reason for the interviews and courtesy calls might be something like the “professionalization” of the Supreme Court, evidenced by the widely observed facts that every sitting justice today (and all but one if Kagan is confirmed) will have served as a federal appellate judge, and that every one has a law degree from an elite law school. Exactly why professionalization has occurred – if it has – remains obscure, but may have something to do with the precise form that the politics of nomination and confirmation take today. More on that in the next post.