Choosing Justices: A Political Appointments Process and the Wages of Judicial Supremacy

William H. Rehnquist is not going to be Chief Justice forever – much to the chagrin of Republicans, no doubt. In the last century, Supreme Court Justices have retired, on average, at the age of seventy-one after approximately fourteen years on the bench. By the end of the term of the President we elect this November, Chief Justice Rehnquist will have served on the Supreme Court for thirty-two years and reached the age of eighty. The law of averages suggests that Chief Justice Rehnquist is likely to retire in the next presidential term. In addition to replacing Chief Justice Rehnquist, the next President may also enjoy the opportunity to select at least two other Justices. Justice John Paul Stevens, the next most senior member of the Court, will turn eighty-four by the end of the next presidential term and will have served on the Court for thirty years. Justice Sandra Day O’Connor, the third most senior member of the Court, will have turned seventy-four and have served for twenty-three years. This Review is not intended to be a morbid exercise in the actuarial sciences. Rather, these numbers serve only to suggest that after six years in mothballs, the Supreme Court appointments process will be returning to active duty in relatively short order. This event will not be universally welcomed because many believe that the confirmation process has become too political or has failed to live up to the original constitutional design. The relatively uncontroversial appointments of Justices Stephen G. Breyer and Ruth Bader Ginsburg notwithstanding, the political struggles over the nominations of Justice Clarence Thomas and Judge Robert H. Bork, and of Justice Rehnquist to be Chief Justice, suggest that future nominations will be contentious. If, as Professor Robert Nagel has observed, judicial power has expanded such that “in one direction or another, the Court will be a pervasive influence on a wide range of issues that can only in a partial and peripheral way be considered legal rather than political,” it is only inevitable that players in the political process will seek to advance their preferences via Supreme Court nominations. Political attention in the next few years may even be greater than usual because the next President’s appointments may well determine the Court’s direction on high-profile issues, such as federalism, race, religion, and criminal procedure, that have been decided only by five-to-four votes.