Our Methodology for Determining Supreme Court Shortlists
Determining what constitutes an official presidential shortlist presents somewhat of a conundrum. The United States Constitution is silent on the qualifications required to serve as a justice on the Supreme Court, mandating only that justices be appointed by the president and confirmed by the Senate. Great deference is therefore extended to and great discretion is exercised by presidents as they consider potential nominees, since there is no standardized or uniform shortlisting process.
The fact that there is no universally agreed-upon method for selecting nominees to the Court in part explains why “the most difficult problem in empirically [or otherwise] studying presidential selection politics is to determine presidents’ shortlists of candidates for nomination.”1 Typically, the shortlisting process happens in quiet discussions among a president’s most senior advisers. Only with President Donald Trump was a shortlist aired publicly long before a vacancy was actually filled. As a starting place, we based our collection of shortlisted women primarily upon research conducted by Christine Nemacheck. Her book Strategic Selection: Presidential Nominations of Supreme Court Justices from Herbert Hoover through George W. Bush2 appears to offer the most comprehensive examination to date of primary sources and other materials used to determine the presidential shortlists.3 Nemacheck researched presidential archives to compile her lists, relying upon a single list if located in the papers and expanding her sources to correspondence, diaries, and internal memoranda as necessary.
We, too, spent many hours combing through the presidential papers of Presidents Hoover, Roosevelt, Kennedy, Johnson, Nixon, Ford, Carter, Reagan, and H. W. Bush to verify her research and learn more about the women appearing on the shortlists. We adopted Nemacheck’s presidential shortlists as the foundation for this project, with a few exceptions—we added judges Florence Allen and Sylvia Bacon. Allen does not appear in Nemacheck’s findings, but there is historic evidence to suggest that Allen was in fact considered by numerous presidents long before Soia Mentschikoff. Nemacheck identifies Mentschikoff as the first woman shortlisted, crediting Johnson (we found additional evidence to also credit Kennedy).4 Nevertheless, an abundance of documentation, including White House memoranda and news accounts, exists to justify Allen’s inclusion as the first woman considered for the Court. Sylvia Bacon likewise does not appear on Nemacheck’s list, and we debated if the news media and other historical sources documenting her consideration for the Court justified her inclusion here. Ultimately, we determined that Bacon belongs in the shortlisted group because her name appeared on the official list of nominees under consideration by President Nixon as reported by numerous media sources, including the New York Times,5 and she was also included by President Nixon on the list he officially submitted to the American Bar Association for potential vetting.6 Our list of women formally shortlisted by presidents for the Supreme Court pre-O’Connor therefore begins with Florence Allen and includes Soia Mentschikoff, Sylvia Bacon, Mildred Lillie, Carla Hills, Cornelia Kennedy, Amalya Lyle Kearse, Joan Dempsey Klein, and Susie Sharp.
We also note that there are numerous other women who were considered informally over the years. Many female contenders received strong support from various organizations, politicians, and others reported by the media, but their names never officially appeared on presidential shortlists.7 We engaged in extensive conversations about who to include in this study, and at times this list was much longer. Ninth Circuit U.S. Court of Appeals Judge Shirley Hufstedler, for example, was frequently mentioned for the Court during the Carter administration, but a vacancy never occurred. District of Columbia Circuit U.S. Court of Appeals Chief Judge Patricia Wald was another to accomplish many firsts “as the one of fewer than a dozen women in her Yale Law School class, the first woman to serve on her important court, the first to be its chief judge.”8 But she was also omitted from official shortlists for the Supreme Court and so we do not include her here.
For every woman included in this book, there are dozens if not hundreds whose stories deserve telling, and we hope others will do so.