Supreme Court Trivia Question:
George H.W. Bush nominated both Sonia Sotomayor and the Justice she has been nominated to replace. Specifically, she was nominated to the trial bench by George H.W. Bush, and she has now been nominated to replace David Souter, who was himself nominated by George H.W. Bush (to both the First Circuit and the Supreme Court). So here's a question: When was the last time, before today, that a Supreme Court nominee had been nominated to a lower court by the same President that nominated the Justice who the nominee was replacing?
Sometime in early 1969.
5.26.2009 11:44pm
GB (mail):
Do the 1986 Scalia/Rehnquist nominations count? In 1986, Scalia, who'd been nominated by Reagan around 1982 to the DC Circuit, was nominated to take Rehnquist's place on the high court when Reagan nominated Rehnquist to CJ.
5.26.2009 11:45pm
Oops, I meant sometime in 1956. That should give it away.
5.26.2009 11:46pm
LarryA (mail) (www):
Grief. I thought the folks over in sports were bad about keeping useless statistics.
5.27.2009 12:00am
Chief Justice Burger was appointed to the D.C. Circuit by President Eisenhower, who, of course, also appointed Burger's predecessor as Chief Justice, Earl Warren.
5.27.2009 12:20am
Rod Blaine (mail):
Can we now start speaking of Sotomayor replacing Souter Minor?
5.27.2009 12:46am
Steve Lubet (mail):
When was the last time a justice was replaced by a nominee whose last name began and ended with the same letters as the last name of the retiring justice?
5.27.2009 8:07am
Brian Kalt:
Steve Lubet,

Bushrod Washington replaced James Wilson back in the 1790s. That's the only other time.
5.27.2009 8:32am
Mikee (mail):
GHW Bush nominated Sotomayor as part of a deal to get his own nominees confirmed. Sotomayor is more of a Democratic Party nominee than one of Bush's nominees.

When was the first time a president had to nominate someone he would otherwise never nominate, in order to stop obstruction by the opposition party of his own nominees?
5.27.2009 8:59am
A. Little Knowledge:

When was the first time a president had to nominate someone he would otherwise never nominate, in order to stop obstruction by the opposition party of his own nominees?

I don't know about the first time, but Roger Gregory and Barrington Parker, both nominated by George Bush in 2001, come to mind as recent examples. Obviously, it didn't work that well (just ask Judge Estrada and Judge Keisler).
5.27.2009 9:51am
Bush did not nominate Sotomayor as part of a deal to get his own nominees confirmed. Instead, an arrangement existed b/w D'Amato and Moynihan regarding district court appointments. Moynihan picked Sotomayor, and the White House signed off.
5.27.2009 10:59am
Forgotten Password (mail):

...the White House signed off.

and I'm sure the position Corleone's gun had no undue influence on the nice man's free and voluntary assent and singature on the contract.
5.27.2009 11:25am
Right, of course. The President of the United States was forced to appoint this dangerous extremist judge at gunpoint, whether literal or figurative. I'd definitely go with that argument.
5.27.2009 12:03pm
I'm shocked to find politicians may make political compromises!

Appointment power is one of the major powers a president wields; they've been used to reward friends or to gain cooperation from other political figures since the founding of the republic. The fact remains that G.H.W. Bush did appoint Sotomayor; why he did so is perhaps interesting speculation, but not terribly relevant to her qualifications.

But why does it matter to some why he did so? Clearly Sotomayor's supporters will point to her nomination by Bush as an endorsement from a significant Republican, which it still is, even if she was not Bush's ideal choice.
5.27.2009 12:37pm
Realist Liberal:

It's actually fairly common for that to happen but it's not as sinister as you make it out to be. It's called Senatorial Courtesy. The same thing happened with Clinton appointing some fairly conservative lower court judges. The first example I can think of is Richard Tallman to the 9th Circuit. Tallman is probably the most conservative judge, if not one of the most, on the 9th Circuit (and I'm not including Kozinski because he's libertarian and skews the normal liberal-conservative line).

Reagan, Bush I and Clinton all consulted with home senators and seriously considered their lower court nomination suggestions even if they were from different parties. What was more unusual was Bush II getting away from the practice. I think it is a good practice and hope Obama gets back to it even if it does mean some conservative district judges in areas such as the South and areas of the midwest.
5.27.2009 12:56pm
Nixon nominated both Burger and Rehnquist?
5.27.2009 1:02pm
Stuart Shiffman:
I do not believe there has ever been such a circumstance before. One reason might be that the appointment of Justices to the Supreme Court from the federal judiciary was until recently, a rare event.
5.27.2009 1:15pm
GWB appointed John Roberts to DC Cir and then to SCOTUS
5.27.2009 1:55pm
Whoops! I certainly misread the Question. He means the present nominee and his predecessor to be replaced are both appointees of the same POTUS.
Lemme try again -- DD Eisenhower appointed Warren Burger to DC Cir and also CJ Earl Warren to SCOTUS, then RM Nixon appointed Burger to replace Warren.
5.27.2009 2:11pm

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