For the past three Supreme Court appointments – and those going back even further – top White House aides reached out to potential candidates and methodically scrutinized records before any definite assurance of a vacancy. I have no doubt that’s happening right now, given the odds that Justice John Paul Stevens will soon announce his retirement.
Republican administrations have been highly systematic in their selection processes in recent decades. George W. Bush’s team came into the White House with lists of names and background reviews for Supreme Court and top U.S. appeals courts posts. Samuel Alito was first interviewed in June 2001 for the Supreme Court by Bush’s then-White House Counsel Alberto Gonzales. That was more than four years before a vacancy arose. Bush officials interviewed Alito again in May 2005, in July 2005, and, finally, in October 2005. He was initially passed over for the seat being vacated by retiring Justice Sandra Day O’Connor in summer 2005 (John Roberts won that nomination first). But Alito was tapped in October when Bush decided to switch Roberts to the chief justice spot after William Rehnquist died.
For Roberts, interviews began on April 1, 2005, three months before the White House knew it definitely had a vacancy. (O’Connor sent her letter revealing her intention to retire on July 1, 2005.) Roberts eventually was questioned by nearly a dozen top officials, including Dick Cheney and Karl Rove. President Bush interviewed Roberts shortly before announcing his nomination for the O’Connor seat on July 19, 2005.
Democratic administrations have not been as methodical as Republicans in their judicial selection (Ronald Reagan set that pattern thirty years ago), but President Obama’s aides laid some early groundwork in 2009. White House counsel Gregory Craig contacted then-Appeals Court Judge Sonia Sotomayor on April 27, four days before word of Justice David Souter’s planned retirement would leak out. Once Souter’s news was official on May 1, Sotomayor had daily telephone calls and questions from White House staff. President Obama interviewed Sotomayor on May 21. He offered her the job on May 25, and it all went public on May 26.
President Obama also interviewed Solicitor General Elena Kagan, Homeland Security Secretary Janet Napolitano, and U.S. Appeals Court Judge Diane Wood. Past experience may offer another lesson here: Just as Samuel Alito became the nominee after being passed over, so did Stephen Breyer during the Clinton administration. Breyer lost out to Ruth Bader Ginsburg in 1993 but won the nomination in 1994. That was nearly the same story with Robert Bork during Reagan’s second term. Bork lost the nomination in 1986 to Antonin Scalia, only to gain it in 1987. That timing contributed to Bork’s fate. He was defeated 58-42 by the Senate, which had been majority-Republican in 1986 but turned majority-Democratic by the time of his nomination.