Characteristics of Those Selected to Sit on the Court: An Overview

Document Outline
Career Paths
Implications of the Career Paths

A recent children's book about Justice O'Connor concludes with a set of suggestions “if you want to be a Supreme Court justice.” While other observers might add or delete specific suggestions, the list underlines an important reality: because of the workings of the selection process, certain kinds of people are more likely to reach the Supreme Court than others.

Career Paths

The Legal Profession.

The Constitution does not require that Supreme Court justices be attorneys. In practice, however, this restriction has been absolute. Most of those involved in the selection process assume that only a person with legal training can serve effectively on the Court. If a president nominated a non-lawyer to the Court, this assumption—and the large number of lawyers in the Senate—probably would prevent confirmation.

Thus the willingness and ability to obtain a law degree constitute the first and least flexible requirement for recruitment to the Court. Most of the justices who served during the first century of the Court's history had followed what was then the standard practice, apprenticing under a practicing attorney. In several instances, the practicing attorney was a leading member of the bar. James Byrnes (chosen in 1941) was the last justice to study law through apprenticeship; all his successors have taken what is now the conventional route of law school training. A high proportion of justices have graduated from the more prestigious schools. Of the nine justices sitting in 2000, seven received their law degrees from Harvard, Yale, or Stanford.

High Positions.

If legal education is a necessary first step in the paths to the Court, almost equally important as a last step is attaining a high position in government or the legal profession. Obscure private practitioners or state trial judges might be superbly qualified for the Court, but their qualifications would be questioned because of their lowly positions. A high position in government or the legal profession also makes a person more visible to the president and to others involved in the nomination process.

At the time they were selected, the thirty-three justices appointed since 1937 held positions of four types. Ten justices served in the federal executive branch, seven in the Justice Department. The other three justices served as chair of the Securities and Exchange Commission (Douglas), secretary of the Treasury (Vinson), and secretary of labor (Goldberg).

Sixteen of the justices appointed in this period were appellate judges at the time of selection. Fourteen of them served on the federal courts of appeals; the other two (Brennan and O'Connor) served on state courts. Five of the fourteen federal judges (Rutledge, Burger, Scalia, Thomas, and Ginsburg) came from the District of Columbia circuit, which is particularly visible to the president and to other officials in Washington.

Of the other seven justices appointed since 1937, four held high elective office; three were senators (Black, Byrnes, and Burton) and the fourth was governor of California (Warren). The other three held positions outside government. Each had attained extraordinary success and respect—as a legal scholar (Frankfurter), a Washington lawyer (Fortas), and a leader of the legal profession (Powell). Frankfurter and Fortas had also been informal presidential advisers.

The Steps Between.

The people who have become Supreme Court justices took a variety of routes from legal education to the high positions that made them credible candidates for the Court. Frankfurter, Fortas, and Powell illustrate one simple route: entry into legal practice or academia, followed by a gradual rise to high standing in the legal profession. Some justices took a similar route through public office. Earl Warren held a series of appointive and elective offices, leading to his California governorship. Clarence Thomas held a series of nonelected positions in government, culminating in positions as chair of the federal Equal Employment Opportunity Commission and then as judge on a federal court of appeals.

Since 1975, the most common route to the Court has been through private practice or law teaching, often combined with some time in government, before appointment to a federal court of appeals. Antonin Scalia, Stephen Breyer, and Ruth Bader Ginsburg were law professors. John Paul Stevens and Anthony Kennedy went directly from private practice to a court of appeals. During their careers, all five had held government positions or participated informally in the governmental process.

The path that Sandra Day O'Connor took was unusual. She spent time in private practice and government legal positions, with some career interruptions for family reasons, before becoming an Arizona state senator and majority leader of the senate. O'Connor left the legislature for a trial judgeship. Her promotion to the state court of appeals through a gubernatorial appointment put her in a position to be considered for the Supreme Court.

O'Connor's career underlines the multiplicity of paths to the Court. Justices have brought to the Court a broad range of career experiences. What they have shared is their credential as lawyers and their success in reaching the higher levels of the legal profession or government that make them candidates for nomination to the Court.

Implications of the Career Paths

The paths to the Supreme Court help to explain some significant characteristics of the justices. They also underline the role of chance in determining who becomes a justice.

Age.

Young people are not appointed to the Supreme Court. Most of the justices selected in the twentieth century were in their fifties when they joined the Court; of the remainder, most were over the age of sixty. William Douglas was the youngest appointee, at age forty; only three other appointees—Potter Stewart, Byron White, and Clarence Thomas—were under forty-five.

In one sense, this pattern is surprising. We might expect presidents to select relatively young candidates in order to maximize the length of time “their” justices would serve. The main reason they do not do so is the time required to achieve the high positions that most justices hold when they are selected and to attain the eminence that makes one a serious candidate for selection.

Within this constraint, most recent presidents have sought to select justices who are relatively young. Thomas was forty-three when selected; the other four Reagan and Bush appointees were all aged fifty or fifty-one. This pattern reflects strong presidential interest in the Court's future direction. In this respect Clinton's selection of sixty-year-old Ruth Bader Ginsburg—the oldest appointee in more than twenty years—stands out.

Class, Race, and Gender.

The Supreme Court's membership has been quite unrepresentative of the general population in terms of social class; most justices grew up in families that were relatively well off. One study found that one-third of the justices were from the upper class and one-quarter were from the upper middle class. Only one-quarter were from the lower middle class or below.

Since the 1930s, an unusually high percentage of appointees to the Court have had lower-status backgrounds; this is especially true of Democrats. Still, the recent justices as a group grew up in better than average circumstances. The 2000 Court included one justice from the upper class (John Paul Stevens), four from the upper middle class, three from the middle class, and one (Clarence Thomas) whose family was impoverished.

The predominance of higher-status backgrounds can be explained by the career paths that most justices take. First and most important, a justice must obtain a legal education. To do so is easiest for individuals of high status, because of the cost of legal training and the education that necessarily precedes it. Second, individuals of high status have a variety of advantages in their posteducational careers. Those who can afford to attend elite law schools, for instance, have the easiest time obtaining positions in successful law firms.

The partial deviation from this pattern since the 1930s reflects the increasing availability of legal education. In addition, the increase in size of the legal profession, the judiciary, and the federal government has made high positions in these sectors more accessible to individuals with lower-status backgrounds who previously might have been excluded. If these explanations have some validity, then we should expect that the proportion of justices with lower-status backgrounds will remain relatively large and may increase in the future.

Until 1967 all the justices were white men. This pattern is not difficult to understand. Women and members of racial minority groups had extreme difficulty pursuing a legal education because of legal and other restrictions. As a result, the number of potential justices from these groups who passed the first barrier to selection was quite small. Moreover, prejudice against women and members of racial minorities limited their ability to advance in the legal profession and in politics. As a result, very few individuals who were not white men could achieve the high positions that people generally must obtain to be considered for nomination to the Court.

Since 1967, two women (O'Connor and Ginsburg) and two African Americans (Marshall and Thomas) have won appointments to the Court. These appointments reflect changes in society that made it at least somewhat less difficult for people other than white men to achieve high positions. They also reflect the growing willingness of presidents to consider women and members of racial minority groups as prospective nominees. Still, because of the various advantages they enjoy, white men are likely to enjoy disproportionate representation on the Court for some time.

If the Court has been composed primarily of white men with higher-status backgrounds, what has been the effect on its policies? It seems likely that the legal claims of racial minority groups and of women would have been taken seriously at an earlier time if members of these groups had sat on the Court, because these justices would have influenced their colleagues' perceptions of discrimination. Of course, it is impossible to do more than speculate about this possibility.

Political and social attitudes differ somewhat between people of higher and lower socioeconomic status, so justices' class origins might affect the Court's decisions. But the justices typically are people who have achieved high status themselves even if their origins were humble. The sympathies of people who have “climbed” upward from a low socioeconomic level may differ little from those of people who started out with social and economic advantages. Notably, the justices with humble backgrounds have included solid conservatives such as Warren Burger and Clarence Thomas as well as liberals such as Earl Warren and Thurgood Marshall. Some commentators argue that the Court's decisions generally reflect the values and interests of people who are well off. If so, this may result from the status that the justices achieve in their own lives more than from their origins.

Prior Judicial Service.

Recent presidents have preferred to nominate lower court judges to the Supreme Court because these candidates' judicial records provide information about their policy views. As a result, the current Supreme Court is unusual in having eight justices who served on lower courts (all but William Rehnquist). But historically a majority of the justices had judicial experience before reaching the Court. Many commentators think that such service is desirable, even a prerequisite to superior work on the Supreme Court. On a different level, some conservatives have argued that a lack of lower court service encourages judicial activism.

Yet a comparison of justices with and without lower court experience indicates that the two groups do not behave very differently. To take one example, the leaders of the activist Warren Court were Earl Warren, with no lower court experience, and former state judge William Brennan. Their strongest opponents were John Marshall Harlan, who came to the Court from a federal court of appeals, and Felix Frankfurter, who came from Harvard Law School. And all four of these justices have been viewed as outstanding.

This apparent lack of difference is easy to explain. Of the twenty justices appointed since 1937 who had lower court experience, the justice with the most experience had served for thirteen years; ten justices had been lower court judges for five years or less. Undoubtedly even a short period on a lower court shapes a justice's perspective, but a stint of three or five years—or even of thirteen years—is not likely to have as much impact on a person's thinking and approach to judicial policy issues as the much longer period of education and professional development that preceded it.

Partisan Political Activity.

One characteristic shared by most current justices, like their predecessors, is a degree of involvement in partisan politics. Antonin Scalia, for instance, held several positions in the Nixon and Ford administrations. Anthony Kennedy drafted a state ballot proposition for California governor Ronald Reagan. William Rehnquist was active in the Arizona Republican Party. Clarence Thomas worked with John Danforth when Danforth was the Missouri attorney general and a U.S. senator, and Thomas later served in the Reagan and Bush administrations.

This pattern reflects the ways that justices are chosen. Even if nominations to the Court are not used as political rewards, presidents look more favorably on those who have contributed to their party's success. Partisan activity is also a way to come to the attention of presidents, their staff members, and others who influence nomination decisions. Perhaps more important, it enables people to win the high offices and appointive positions that make them credible candidates for the Court. To take the most important current example, lawyers who avoid any involvement in politics are unlikely to win federal judgeships.

Historically, many justices were career politicians who achieved high elective office. Of the current justices, only O'Connor comes close to fitting that pattern. She became majority leader of the Arizona Senate, though she left the legislature after only six years to run for (and win) a trial court judgeship. In filling two Court vacancies in his first term, Bill Clinton seriously considered three people who had won high elective office. But Clinton ultimately followed the example of Gerald Ford, Reagan, and Bush in choosing lower court judges who had never run for office.

Changes in Career Paths.

Even in the period since 1937, there have been changes in paths to the Supreme Court and in the characteristics of people who become justices. The numerical dominance of people from privileged backgrounds and of white men has declined, a decline reflecting social and political changes in the United States. That trend is unlikely to be reversed.

As noted already, justices' career patterns have also changed. Among the twelve justices appointed since 1969, only one (O'Connor) ever held elective office, only one (Rehnquist) came to the Court directly from the executive branch, and all but two (Rehnquist and Powell) were appellate judges when they received their Court appointments. In a sense, there is less politics and more law in the backgrounds of justices than there used to be. This change may be a transitory phenomenon, the result of a series of specific appointment decisions. But it might represent a long-term shift. If the backgrounds of justices are becoming more legal and less political, this represents a noteworthy change in the ways that people reach the Supreme Court.

The Role of Chance.

A person does not become a Supreme Court justice through an inevitable process. Rather, advancement from membership in the bar to a seat on the Court is a result of luck as much as anything else. This luck comes in two stages. First, good fortune is often necessary to achieve the high positions in government or law that make individuals possible candidates for the Court; it is not necessarily the “fittest” who become cabinet members or federal appellate judges. Second, once they achieve such positions, whether candidates are seriously considered for the Court and actually win an appointment depends largely on the existence of several favorable circumstances.

For one thing, a potential justice gains enormously by belonging to a particular political party at the appropriate time. Every appointment to the Court between 1969 and 1992 was made by a Republican president. As a result, potential justices who were liberal Democrats had to watch their chances slip away. Further, someone whose friend or associate achieves a powerful position becomes a far stronger candidate for a seat on the Court. David Souter was fortunate that someone who described Souter as “my closest friend” (Warren Rudman) became a U.S. senator and that a person who knew and admired him (John Sununu) became the president's chief of staff.

More generally, everyone appointed to the Court has benefited from a favorable series of circumstances. Eisenhower's attorney general became aware of William Brennan because Brennan gave a conference address in place of a colleague on the New Jersey Supreme Court who was ill. John Paul Stevens has reported that his pro bono volunteer services for a client led to favorable publicity that later helped him win a judicial appointment.

This does not mean that the Court's direction, as shaped by presidential appointments, is random. No matter which individuals they choose, Democratic presidents generally nominate people with liberal views and Republicans tend to select conservatives. But it does mean that specific individuals achieve membership on the Court in large part through good fortune. “You have to be lucky,” said Sandra Day O'Connor about her appointment, a statement that reflects realism as well as modesty.




Document Citation
Lawrence Baum, Characteristics of Those Selected to Sit on the Court: An Overview, in The Supreme Court, 7th edition (2001), available in CQ Electronic Library, CQ Supreme Court Collection, http://library.cqpress.com/scc/tsupct-0007067762 (last visited April 13, 2005). Document ID: tsupct-0007067762.
Document ID: tsupct-0007067762
Document URL: http://library.cqpress.com/scc/tsupct-0007067762
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