The Supreme Court

Professor Harpaz

Fall, 2004

Selection of a Supreme Court Justice

Hypothetical One:

Assume that it is April, 2005. John Kerry has been elected President. The Republicans have retained control of the Senate by a three vote margin. Orrin Hatch remains the Chairman of the Senate Judiciary Committee. President Kerry has been informed that Chief Justice Rehnquist intends to announce his retirement from the Court when the Court’s current Term ends in June. You have been appointed to a committee that will meet to advise the President on possible candidates for the Court vacancy.

Hypothetical Two:

            Assume that it is April, 2005. George Bush has been elected to a second term. The Republicans have retained control of the Senate by a three vote margin. Orrin Hatch remains the Chairman of the Senate Judiciary Committee. President Bush has been informed that Justice Stevens intends to announce his retirement from the Court when the Court’s current Term ends in June. You have been appointed to a committee that will meet to advise the President on possible candidates for the Court vacancy.

            The first meeting of the committee is scheduled for September 29. Before attending your first committee meeting, you should:

(1) identify criteria you think are important in selecting a new member for the Court;

(2) select one particular candidate who you think will satisfy those criteria and be an appropriate nominee for President Kerry to nominate for the Court vacancy. You need to be prepared to describe your preferred candidate’s background, list the criteria you used to identify the candidate and identify why you believe the candidate would be President Kerry’s best pick for the opening on the Court; and

(3) select one particular candidate who you think will satisfy those criteria and be an appropriate nominee for President Bush to nominate for the Court vacancy. You need to be prepared to describe your preferred candidate’s background, list the criteria you used to identify the candidate and identify why you believe the candidate would be President Bush’s best pick for the opening on the Court.

            To perform the tasks described above, you should read and research in the following manner:

(1) Read the article Supreme Court Selection as War which is available online;

(2) Read the material on the Vacancy on the Court website at http://supremecourt.ws/;

(3) Read the article by Michael Dorf on the impact of the 2004 election on the composition of the Supreme Court: http://writ.corporate.findlaw.com/dorf/20040707.html;

(4) To give you some assistance in identifying the names of one group of potential nominees, read an article in Washingtonian People on possible selections for the Court by both Bush and Kerry. The article is available online at http://www.washingtonian.com/people/bushvkerry.html; and

(5) Do your own independent research. Some suggestions for such research include:

(a) Use the Google search engine to look for the names of possible candidates or biographical information about potential nominees you have identified;

(b) Use the databases of newspapers available on Lexis and Westlaw;

(c) Additional material on possible Bush nominations is available on the Honorable Mentions section of the Jurist website. In addition to links to several interesting articles related to the topic of President Bush filling a Court vacancy (examples include Naming Justices - What History Says by Professor David Yalof and The Bush Court by Professor Randall Kennedy), it includes a list of possible Bush nominations and has links to biographical information and newspaper articles about each of the possible Bush choices.

            You are free to look at any source material you can find for information about prospective judges as well as consult anyone you think could provide such information.