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Sonia Sotomayor, Barack Obama, Supreme Court
Alex Brandon/AP
President Barack Obama and Vice President Joe Biden applaud federal appeals court judge
Sonia Sotomayor.

Obama Could Make History With Supreme Court Nominee

May 28, 2009 07:00 AM
by Cara McDonough
The president continues a long-standing tradition of tailoring the nation's highest court with his nomination of Judge Sonia Sotomayor.

The Highest Court Through History

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President Obama's nomination of federal Judge Sonia Sotomayor to the U.S. Supreme Court is only the first step in the process. Discussion, debate and of course a vote will follow.

As with all presidential Supreme Court nominations, the process could be quick and easy for Sotomayor, or it could be a rocky road. Looking back at history, anything goes when it comes to the nation’s highest court.

Perhaps President Franklin D. Roosevelt’s “court-packing” plan is the most well-known. When FDR put forward his New Deal legislation in 1937, he encountered opposition from the Supreme Court, which at the time, tended toward the conservative. In response, he introduced the Judiciary Reorganization Bill of 1937. In the bill, the president proposed that he be allowed to appoint an additional justice to the court for every justice who was more than 70 years old. He claimed—untruthfully—that the aging justices were falling behind in their caseloads. Both Republicans and Democrats immediately attacked the bill and many say Roosevelt’s reputation was irreparably harmed by his actions.

Although his bill never came to pass, Roosevelt was able to shape the court as he wanted it; over the next five years, seven of the nine justices retired or died, allowing the president to make replacements.
FDR wasn’t the only president to try court-packing. Jean Edward Smith wrote in a July 2007 New York Times article that court-packing “is a hallowed American political tradition participated in by Republicans and Democrats alike.” Presidents “Adams, Jefferson, Jackson, Lincoln and Grant” all changed the number of justices for politically strategic purposes, he wrote.

As the appointment process has changed over the years, not all presidents have gotten their way as easily as others, and modern-day presidents certainly do not get their way as quickly. The United States Senate Web site provides a list of Supreme Court nominations from 1789 to the present. Not counting Obama’s pick, the presidents have submitted 158 nominations for the Court; of those, 122 were confirmed (seven of those declined to serve).

The Supreme Court of the United States Blog (SCOTUSblog) provides a history of the four most recently appointed Supreme Court justices: Justice Samuel A. Alito, Chief Justice John G. Roberts, Justice Stephen G. Breyer and Justice Ruth Bader Ginsburg. According to the post, for the last 30 years, the average duration between nomination and confirmation for Court justices has been 72 days.

Since Ronald Reagan's presidency, nine justices have been nominated and appointed to the Supreme Court: President Reagan nominated Anthony Kennedy, Antonin Scalia and Sandra Day O'Connor; President George H.W. Bush nominated Clarence Thomas and David Souter; President Bill Clinton nominated Stephen Breyer and Ruth Bader Ginsburg; and President George W. Bush nominated Samuel Alito and John Roberts. 

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Related Topic: Supreme Court firsts

If Sotomayor is confirmed by the Senate, she will make history as the first Hispanic and only the third woman to serve on the Supreme Court.

On Aug. 30, 1967, the Senate confirmed the nomination of civil rights lawyer Thurgood Marshall, making him the first African-American Supreme Court justice. “I believe it is the right thing to do, the right time to do it, the right man and the right place,” President Lyndon Johnson, who made the nomination, said during a Rose Garden press conference.

Sandra Day O’Connor made history when she was confirmed as the first female Supreme Court Justice in 1981. O’Connor, who was nominated by President Ronald Reagan, developed a reputation over the years as having the deciding vote in key cases when the Court was split. She retired from the Supreme Court in 2005.

Reference: The Supreme Court

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