Blog Post

Rumored Supreme Court candidates don’t always get nominated

January 26, 2017 | by Scott Bomboy

With President Donald Trump set to name his Supreme Court nominee soon, talk is circulating about who that person is. But looking at the recent history of nominations, the leading contenders discussed in the media aren’t always the final choices announced by the President.

 

Mario Cuomo

 

For now, the names most mentioned as likely Trump nominees are federal judges Neil Gorsuch, Thomas Hardiman and William Pryor. But Bill Mears from Fox News said on Tuesday that “sources close to the selection process did not rule out other names being added late in what has emerged as a fast-moving, dynamic process.”

 

That wouldn’t be totally unexpected looking at the history of the past nine successful nominations to the Court. While Elena Kagan and Sonia Sotomayor were discussed as leading candidates for their nominations, John Roberts wasn’t the popular pick in the press back in 2005. David Souter was a pick in 1990 that totally surprised Court observers. Ruth Bader Ginsburg and Stephen Breyer found out shortly before a presidential announcement that they were nominees.

 

A look back at 30 years’ of news stories about Supreme Court nominations shows that until the official announcement is made, it can be problematic making forecasts about nominees.

 

Nomination: Elena Kagan

Other discussed candidates:  Merrick Garland, Diane Wood, Sidney R. Thomas, Deval Patrick

 

On April 9, 2010, Justice John Paul Stevens sent a letter to President Barack Obama stating his intention to retire at the end of the Court’s term in late June. Prior to Stevens’ resignation, CNN’s Jeffrey Toobin had listed three favorite candidates: Solicitor General Kagan and two federal judges, Garland and Wood.  He also listed Patrick, the Massachusetts governor. The New York Times also reported that Obama interviewed Thomas, a Ninth Circuit federal appeals judge, during the search process. About a month after Stevens’ announcement, Obama chose Kagan as the nominee.

 

Nomination: Sonia Sotomayor

Other discussed candidates:  Elena Kagan, Diane Wood, Deval Patrick, Janet Napolitano, Leah Ward Sears

 

In late April 2009, Souter, age 69, decided to retire from the bench and return to New Hampshire. The Washington Post listed several rumored candidates as his replacement , including Sears, a Georgia State Supreme Court judge. Robert Barnes from the Washington Post reported after Sotomayor’s nomination that President Obama interviewed four candidates during the search process: Sotomayor, Kagan, Wood and Homeland Security Secretary Janet Napolitano.

 

Nomination: Samuel Alito

Other discussed candidates: Harriet Miers, Alberto Gonzales, Larry Thompson, various federal judges

 

Alito’s path to the nomination was rather complicated, coming just days after Harriet Miers withdrew from consideration as President George W. Bush’s nominee. Miers, President Bush’s long-time friend and White House counsel, was nominated on October 7, 2005 to fill the seat being vacated by Sandra Day O’Connor. John Roberts was Bush’s first nominee to replace O’Connor, but Bush then nominated Roberts to replace Chief Justice William Rehnquist, who died on September 3, 2005.  Miers dropped from consideration after criticism from Republicans and Democrats in Congress. NBC News said other candidates reportedly considered along with Miers were Attorney General Alberto Gonzales, lawyer Larry Thompson and several federal judges, including Alito. Other media outlets mentioned at least a dozen other possible candidates after Miers’ withdrawal.

 

Nomination: John Roberts

Other discussed candidates:  Edith Brown Clement, J. Harvie Wilkinson III

 

Clement, a Fifth Circuit Court of Appeals judge, was seen by some in the media as the favorite for the first nomination to replace O’Connor. “All day, the name of appellate judge Edith Brown Clement floated through Washington as the president's apparent choice,” the Washington Post reported right before President Bush nominated Roberts on July 30, 2005.  Fox News also reported that Clement had interviewed with Vice President Dick Cheney and it listed Roberts in a second group of possible candidates, along with Samuel Alito. Knight Ridder reported at the time that Clement and Wilkinson, a Fifth Circuit Court of Appeals judge, were among five finalists for the nomination, along with Roberts, who met with Bush at the White House.

 

Nomination: Stephen Breyer

Other discussed candidates:  George J. Mitchell, Jose Cabranes, Bruce Babbitt, Richard Arnold

 

In April 1994, news leaked out that Justice Harry Blackmun was set to retire from the Court at the age of 85. The Los Angeles Times reported that Senate Majority Leader George J. Mitchell was thought to be the top contender to replace Blackmun. Other contenders rumored to be under consideration were U.S. District Judge Jose Cabranes, Interior Secretary Bruce Babbitt, Judge Amalya L. Kearse and Judge Richard S. Arnold. Just before the nomination, the New York Times said President Bill Clinton wavered between Babbitt and Arnold. Breyer was also a finalist, and he received about 30 minutes notice from the White House that he would be named in public as the nominee.

 

Nomination: Ruth Bader Ginsburg

Other discussed candidates:  Mario Cuomo, Richard Arnold, Stephen Breyer, Bruce Babbitt

 

In 1993, President Clinton faced the difficult decision of replacing long-time Justice Byron White.  New York Governor Mario Cuomo and Judge Arnold were immediately mentioned as possible replacements. Years later, former President Clinton confirmed he made a nomination offer in 1993  to Cuomo, who declined. The nomination process then came down to Babbitt and two federal judges: Breyer and Ginsburg. The New York Times had reported that Breyer seemed to be the favorite for the nomination, but his in-person interview with Clinton didn’t go well (after Breyer had been in a bicycle accident). After his interview with Ginsburg, Clinton called her to offer her the nomination.

 

Nomination: Clarence Thomas

Other candidates:  Edith H. Jones, Patrick E. Higginbotham, Emilio Garza, Laurence Silberman

 

President George H.W. Bush made his second Supreme Court nomination after the resignation of Thurgood Marshall in 1991. Thomas was immediately named in the media as one of the favorites to get the nomination, along with Judges Patrick E. Higginbotham and Edith H. Jones. The New York Times reported that President Bush had narrowed down the possible nominees to Thomas, then 43 years of age, and Emilio Garza, a federal judge who was also 43 years old. Silberman, another federal judge, was under consideration by Bush.

 

Nomination: David Souter

Other discussed candidates: Kenneth W. Starr, Ralph K. Winter, Abraham D. Sofaer

 

President Bush’s first nomination to the Court came after William Brennan resigned on July 20, 1990 due to health problems.  The New York Times mentioned three immediate favorites for the nomination: Solicitor General Kenneth W. Starr, federal judge Ralph K. Winter and former federal judge Abraham D. Sofaer. Bush’s announcement of Souter as the nominee surprised Court watchers, since Souter had just recently joined a federal appeals court after serving on New Hampshire’s Supreme Court and he was little-known as a national judicial figure.

 

Nomination: Anthony Kennedy

Other discussed candidates:  Robert Bork, Douglas Ginsburg, William Wilkins

 

The surprise resignation of Lewis Powell in June 1987 gave President Ronald Reagan a chance to appoint another conservative to the bench, after Antonin Scalia’s confirmation in 1986. Robert Bork was Reagan’s first nominee to replace Powell, but the Senate didn’t confirm Bork in an epic battle over his nomination.

 

Reagan then decided to nominate federal Judge Douglas Ginsburg six days after the Bork vote, but Ginsburg withdrew from the nomination process after nine days. Administration officials then told the New York Times that Kennedy, a federal judge from California, was the leading contender for the nomination.  Kennedy’s name was on a list of conservative judges considered by the Reagan administration that included six federal judges, the Times said.

 

Scott Bomboy is the editor in chief of the National Constitution Center.


 
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