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One of President Trump's accomplishments is that he will have appointed 2 and likely 3 Supreme Court judges during his current term.

However, why is this considered an accomplishment at all?

Supreme Court Judges are appointed until they die or retire. So presuming that the President doesn't kill or somehow coerce a judge into retiring, isn't the number of positions that become available on the Supreme Court during a president's term just luck?

Other than political plays such as the "McConnell" rule, which as I understand was without precedent before 2016, what could a president do to influence the number of appointments they may get?

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  • There was some talk at the time around Justice Kennedy's resignation being possibly coerced. Never confirmed, but there was some suggested potential manipulation involving his son. – Darrel Hoffman Oct 6 '20 at 16:16
  • You don't consider the effort put into naming and then not getting across the line such potential justices as Douglas Ginsberg, Robert Bork and Harriet Miers a waste of Presidential throughput? – user662852 Oct 6 '20 at 17:19
  • Are you asking why people it an accomplishment, or why Trump (or pro-Trump rhetoric) advertises it as an accomplishment? Political opinions aside, there's a distinction here between what can be claimed and what is in fact generally agreed upon. – Flater Oct 7 '20 at 10:30
  • Considered an accomplishment by whom? Are you asking why it's played up so much during Presidential elections? – reirab Oct 7 '20 at 14:56
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As you mentioned, Supreme Court Judges remain in office until they die or retire. That is typically many years or even decades after they are appointed, meaning that they will have a long time to argue their legal opinions whether it becomes the majority opinion or the dissent opinion.

At least since the 20th century (but probably longer), judges appointed by certain presidents tended to share political affiliations with said president at least to some degree. Or, in a shorthand, a conservative president would nominate conservative judges while a liberal or progressive president would nominate a more liberal or progressive judge.

I’m with you in considering the number of judges a president can nominate a question of luck. Moreover, a president doesn’t only need the luck of a vacancy occurring during their time in office but they also need a Senate that is likely to agree with their choice – as two thirds of the Senate were not elected at the time the president was last elected (and thus their campaign had far less influence on the Senate vote outcome), I am willing to file Senate composition as another element of luck in the appointment process.

However, the fact that Supreme Court Justices tend to stay in office far longer than a president means that even a single nomination can leave a far greater footprint. For example, Chief Justice Warren who retired conditionally (upon appointment of a successor) in 1968, effective in June 1969, saw the effect Nixon’s appointed successor, Chief Justice Burger, had on the Supreme Court and is quoted saying:

If I had ever known what was going to happen to this country and this Court, I never would have resigned. They would have had to carry me out of there on a plank.

Thus, the accomplishment doesn’t stem so much from the ability to name somebody but rather from the long lasting effects such a seemingly small act of one’s presidency has on the future – often far greater than most policies implemented.

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Although a President can't really affect the number of Supreme Court justices they get to appoint, excluding attempts to expand the Court, they are able to attempt to select nominees based on their likelihood to support their policy preferences. Given that there is no real mechanism to remove a justice excluding impeachment, after a nominee has been confirmed by the Senate, all bets are off regarding their continued support.

Many Presidents have expressed their frustrations when their SCOTUS nominees did not subsequently support their position, for example, Eisenhower's disagreements with his Chief Justice Earl Warren in Brown v. Board of Education, or Truman's description of the appointment of his Attorney General Tom Clark to the Court as his "biggest mistake", in Merle Miller's biography Plain Speaking.

Indeed, the author of The Supreme Court in United States History, Charles Warren, states that "nothing is more striking in the history of the Court than the manner in which the hopes of those who expected a judge to follow the political views of the President appointing him are disappointed".

Taking this into account, then, there is perhaps something to be said for the accomplishment of appointing a justice who continues to support a President's position long after confirmation, enabling a President's legacy to stretch further than presidential term limits allow. At this point, though, it's probably too early to tell which category President Trump's nominees will fall into.

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  • This maybe a recent example of justices apparently not doing what was expected. – AES Oct 5 '20 at 12:55
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    @AES: Yes, it is. But Bostock is just one decision, in which Gorsuch nevertheless adheres (or at least, claims to adhere) to a strict textualist reading of the statute in question. You also have McGirt, but again, that's a strict textualist analysis (i.e. "Congress never actually said they were dis-establishing that reservation, so they didn't."). I still find it hard to believe that Gorsuch is going to be "a secret liberal" in the vein of Justice Souter. – Kevin Oct 5 '20 at 16:24
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    +1 republicans made it their mission in recent years to avoid "getting soutered" again. Trumps list of potential SC nominees released before the 16 election went a long way in getting hesitant republicans to the polls – eps Oct 5 '20 at 21:43
  • A slight nitpick: Presidents, or at least LBJ, have been known to increase their number of selections with careful manipulations and lures. LBJ got one Justice to step down by promising him he'd be given great power to negotiate the end of the Vietnam war (he got the appointment, but not the power), and another one he manipulated a conflict for by appointing his son as AG and manipulating his fatherly pride to insist there was a conflict of interest he had to resolve by stepping down. Of course, regret is common for such Justices, so recent ones are more resolved to stay. – zibadawa timmy Oct 6 '20 at 21:58
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There have been 37 nominated justices who have not been seated on the Supreme Court (plus Douglas Ginsberg who withdrew before formal nomination). Each of these represents a presidential decision with action taken to come up with the name; public announcement; public discussion of the decision; spending of political capital to advance or defend any element of the nominee that is controversial, and so on, with the risk that the seat remains open to the next administration.

That the nominee doesn't get seated means all that effort is burned with nothing to show for it.

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  • I believe our democracy benefits from this. Automatic appointment without all this feels less helpful. As with most of our political structure it is annoying and frustrating but our experiment seems to beat alternatives so far. That might change in the future, especially with technology. – Michael Durrant Oct 7 '20 at 10:21
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While luck is a big part of it, the President still needs to get the Senate's approval, which may require negotiation skills. There was an opening in the last year of Obama's term, but he couldn't get through the approval process.

Of course, it's much easier when the President and Senate majority are from the same party, which is why Trump has had little trouble getting his nominees approved, even one with an extremely controversial past, while Obama couldn't even get hearings for a moderate candidate who would likely have sailed through the process a year earlier. It may be just luck that the Senate and Presidency are aligned, but POTUS may be able to claim that he influenced Senator elections in order to cement their majority.

In any case, it isn't really much of an "accomplishment", any more than winning the lottery is. But even if it doesn't take much skill, you still get to reap the rewards -- pure luck doesn't make the winner any less of a millionaire. And politicians will always spin something to their benefit whenever possible, so a President who has nominated several Justices will play up how this advances their political agenda, and minimize the fact that they just took advantage of opportunities that were handed to them.

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People talk and sometimes act like the President is a king. He isn’t and there’s no avenue for him to become one. He doesn’t get to introduce legislation, he only get’s to sign someone else’s law. Military power is significant, but just as significantly limited. There’s treaties and international negotiations, but (a) most Americans don’t care and (b) Congress rewrites them, so nothing there.

A Supreme Court judge (or judges) is actually the only real legacy a President has. FDR appointed 8 (filling 7 seats as he asked one of them to resign to fill another position) 2 of them serving more than 30 years (one of those being a former KKK member). A Supreme Court judge can have a national impact for decades. RBG has widely been considered the best thing Clinton did while in office. Likewise for Thomas and Bush.

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  • They don't get to introduce legislation? So Obama had nothing to do with drafting the Affordable Care Act? And Trump wasn't involved in the tax cuts? It's true that they don't have a constitutionally-mandated role in legislation, but in practice they're often intimately involved in major initiatives. – Barmar Oct 7 '20 at 18:06
  • And even if POTUS doesn't initiate the legislation, Congress won't waste time on a law that will eventually be vetoed, so they work closely with the White House when drafting anything controversial. – Barmar Oct 7 '20 at 18:10
  • Note that the people who consider RBG and Thomas to be the best thing done by their respective presidents are very different sets of people., – Azor Ahai -him- Oct 7 '20 at 19:19
  • The Affordable Care Act is also referred to as PelosiCare,, Presidents don’t get to introduce legislation. As for vetoes, lots of laws get passed after veto’s. I’d like to see a President with the guts to veto everything, force Congress to do their jobs. – jmoreno Oct 8 '20 at 0:33

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