368 CHAPTER 12|THE COURTS
FEDERAL JUDGES
The Constitution does not specify requirements for serving on the federal courts,
unlike the detailed stipulations for members of Congress and the president. Fed-
eral judges don’t even have to have a law degree! (This is probably due to the lim-
ited number of law schools at the time of the Founding; someone who wanted
to be a lawyer usually would have served as an apprentice to learn the trade.)
The president appoints federal judges with the “advice and consent” of the Sen-
ate (the Senate must approve the nominees with a majority vote).
Nomination battles for federal judges can be intense because the stakes are
high. As the discussion of judicial review made clear, the Supreme Court plays a
central role in the policy process, and because a justice has life tenure, a justice’s
impact can outlive the president and Senate who put him or her on the Court.
Judges often serve for decades, much longer than the people who appoint them.THE ROLE OF THE PRESIDENT
Given the Constitution’s silence on the qualifi cation of federal judges, presidents
have broad discretion over whom to nominate. Presidents have always tried to
infl uence the direction of the federal courts and especially the Supreme Court by
picking people who share their views. Because the Senate often has diff erent ideas
about the proper direction for the court, nomination disputes end up being a com-
bination of debates over the merit of a nominee and of partisan battles about the
ideological composition of the courts.
Although presidents would like to infl uence the direction of the courts, it is
not always possible to predict how judges will behave once they are on the federal
bench. However, the president can make a good guess about how a justice is likely to
vote based on the nominee’s party affi liation and the nature of his or her legal writ-
ings and decisions (if the nominee has prior judicial experience). Not surprisingly,
98 of 108 justices who have served on the Supreme Court have shared the president’s
party. Overall, more than 90 percent of the lower court judges appointed by presi-
dents in the twentieth century also belonged to the same party as the president.
The most partisan move to infl uence the Court was President Franklin Delano
Roosevelt’s infamous plan to pack the Court. FDR was frustrated because the
Court had struck down several pieces of important New Deal legislation, so to get
a more sympathetic Court he proposed nominating a new justice for every jus-
tice who was more than 70 years old. Six justices were over 70, so this would have
increased the size of the Court to 15. The plan to pack the Court ran into opposi-
tion, but in the “switch in time that saved nine,” as it was called, the Court started
ruling in favor of the New Deal legislation, so the plan was dropped.
In addition to ideological considerations about whom to nominate, the presi-
dent also considers the individual’s reputation as a legal scholar and his personal
relationship to the candidate, as well as the candidate’s ethical standards, gender,
and race. See Table 12.2 for data on the latter two points.THE ROLE OF THE SENATE
The other half of the equation to determine the composition of the federal courts
is the Senate. It has shifted from having a very active role in providing “advice and
consent” on court appointments to playing a passive role and then back to an active
role. One constant is that the Senate rarely rejects nominees because of their qual-
ifi cations, but rather for political reasons. Of 28 nominees rejected by the Senate
in the history of the United States, only two were turned down because they were