Some have suggested that Judge Roberts’s smooth confirmation to the D.C. Circuit in 2003 means he’s assured of an easy glide onto the Supreme Court. But that’s like saying that because your company hired you, you’re guaranteed a promotion to C.E.O -- and we know that’s not true.
In fact, that has not been the case for several judicial nominees in recent history. In 1987, Judge Robert Bork’s nomination to the Supreme Court was rejected even though he had previously been confirmed to the D.C. Circuit. Likewise, Judge Douglas Ginsburg, President Reagan’s next nominee to the Supreme Court after the Bork defeat, also was a sitting judge on the D.C. Circuit, but he withdrew from consideration for the Supreme Court after it became public that he had smoked marijuana. Going back a little further, to the Nixon era, in 1969 Judge Clement Haynsworth’s nomination to the Supreme Court was rejected by the Senate even though he was then the Chief Judge of the Fourth Circuit. President Nixon’s next Supreme Court nominee, Judge Harold Carswell, was rejected by the Senate just seven months after he was confirmed to the Fifth Circuit, in part because of concerns about his hostility to civil rights.
It’s vitally important that the Senate look carefully at the records of people nominated to be Supreme Court Justices, even if they have previously been confirmed to lower federal courts, because the job of a Supreme Court Justice is very different from that of a lower court judge. A judge on a federal Court of Appeals is one of many judges on that court, which is just one of 13 circuits, and the decisions made by that court apply only in the circuit where the court is located. Most importantly, appeals court judges have to follow the previous decisions of both their own Circuit and of the Supreme Court, and their decisions can be reversed either by the full Circuit Court or by the Supreme Court if they’re wrong.
By contrast, a Supreme Court Justice is one of just nine members of the Court, and (as we saw in the example of Justice O’Connor), he or she can be the swing vote that decides many cases. The Supreme Court’s decisions apply to the whole country, and the Court has the power to reverse its own prior decisions. There is no higher appeal for review or reversal of the Supreme Court’s decisions. Even Congress can’t reverse a decision based on constitutional law.
Judge Roberts’s nomination to the Supreme Court should be evaluated on its own merits with no presumption toward confirmation simply because he is already a federal judge.
