Picking the Most Qualified Nominee

Arguably, there is little that is wrong with that approach. Who is to say what qualities constitute some "best" set of criteria? There are literally hundreds of individuals who could perform acceptably on the Court, even brilliantly. To claim that any one individual is the best qualified is, more often than not, rhetorical overstatement.

There are a few individuals, however, who have achieved the status of "superstars" in the legal or judicial profession. John J. Crittenden was considered a leading contender for an appointment to the Court for more than three decades in the nineteenth century. He was initially nominated in 1828 by John Quincy Adams but became a victim of the Democrats' desire to hold the vacancy over until Andrew Jackson acceded the presidency. In the twentieth century, Judge Learned Hand established a reputation through nearly three decades as a distinguished jurist that outshone most of the Supreme Court justices during his lifetime. As Justice O'Connor has knowingly pointed out from her personal experience, it also takes considerable luck to receive an appointment.

A superstar who did make it to the Court was Benjamin Cardozo. In a remarkable sequence of events really unique in the Court's history, in 1932 President Hoover was subjected to a ground swell of support and bipartisan pressure to name Cardozo to the vacancy created by the retirement of Oliver Wendell Holmes. Using the stature of Holmes as a springboard, Cardozo supporters pressed the necessity of appointing a justice of pre-eminent stature. Cardozo, by then 62 years old, had made his mark as a jurist in New York and scholar with his classic work, The Nature of the Judicial Process. Hoover, in part for representational reasons (two New Yorkers and a Jew already served on the Court) and because Cardozo did not match Hoover's brand of moderately conservative Republicanism, persisted in seeking another nominee. Eventually, however, Hoover yielded to pressure and nominated "the best person for the job," an appointment that he later pointed to with pride.

Despite his initial resistance to Cardozo, Herbert Hoover stands as an example of a president who showed great concern with the quality of his nominees. His nominations of Cardozo, Charles Evans Hughes as Chief Justice, Owen Roberts, and even John J. Parker, whose rejection is generally regarded as denying the Court a valuable member, are among the best of any president. Even for Hoover, however, the foremost concern was finding qualified justices who shared his political views. So it is with most presidents. There is an implicit caveat that whenever they state their nominee is the best qualified that they mean "the best qualified, consistent with those political views, representational interests, reward or support necessities, and any other constraints that may be imposed by the setting."

Adapted from George Watson and John Stookey, Shaping America; The Politics of Supreme Court Appointments, Addison-Wesley, 1995, pp. 64–66.