SCOTUS Justices and Their Appointing Presidents

There has been much noise lately that President Trump ought not get a nominee on the Supreme Court while an investigation is in progress, or, if he does, that the nominee should recuse himself in any case of constitutional confrontation with the President on the order of United States v. Nixon (1974). The theory is that loyalty to the appointing President creates some kind of conflict of interest. I find the notion quite dubious.

First, let's take a look at that case.  The case was a pivotal moment in the Watergate scandal, and an adverse decision would likely (and ultimately did) spell the end of the Nixon Presidency. President Nixon had appointed four members of the Court, so on the loyalty theory all four should have voted for his position, right? Not quite.

The opinion of the Court was written by Chief Justice Warren Burger, appointed by President Nixon. It was joined by Justices Blackmun and Powell, appointed by President Nixon. Justice Rehnquist recused himself, but presumably not because he was appointed by President Nixon. It was more likely his then-fairly-recent work in the Office of Legal Counsel. So, the Court had four Nixon appointees and zero votes in his favor.

President Jefferson once said that with every appointment he made a hundred enemies one ingrate. True or not, there is no empirical basis I know of to support the notion that Supreme Court Justices vote for their appointing presidents out of loyalty or gratitude.

How about ambition for a future appointment? Not much headroom there. The Chief Justice has nowhere up to go. No Associate Justice has ever been elevated to Chief by the same President that appointed him to the Court initially, although LBJ tried. In any case, the chance of the CJ chair becoming vacant in President Trump's tenure is close to zero.

There is nothing to this objection. As to Judge Kavanaugh's views on civil or criminal cases against a sitting president generally, I addressed that objection in an earlier post.

SCOTUS Justices and Their Appointing Presidents curated from Crime and Consequences Blog