The Problem with Presidential Appointments

Under the US Constitution, the president has the authority to appoint judges to both the US Supreme Court and to other federal courts nationwide. Specifically, Article 2 states that the president “shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States” [1]. While provisions are made for the formal choosing of other government officers, the constitution specifically enumerates the president’s authority to select judicial officers - individuals who are intended to be unbiased triers of fact. However, presidents can be at the mercy of the officers who they personally select. For example, President Richard Nixon filled four vacancies on the Supreme Court, even selecting Chief Justice Warren Berger [2]. Despite this bond between the President and several justices, the court still unanimously decided against Nixon when he faced judgment for his actions during the Watergate scandal.

Although Nixon’s connection to the individual justices did not result in a favorable outcome for the former president, it is possible that such biases and loyalties may still influence cases involving other presidents. Under such conditions, many would argue that it is necessary and proper for judges and justices to acknowledge their bias and let another judge hear the case. In fact, the American Bar Association recommends that judges must recuse themselves under several different circumstances, including but not limited to [3]:

1. When the judge has a personal bias or prejudice concerning a party or a party’s lawyer or personal knowledge of facts that are in dispute in the proceeding.
2. When the judge knows that they or somebody close to them has a significant relationship (friendly or otherwise) with an individual who is involved in the case.
3. When the judge knows that they or somebody close to them has an economic interest in the outcome of the case. 
4. When the judge, while a judge or a judicial candidate, makes a public statement without legal justification, it commits or appears to commit the judge to reach a particular result or rule in a particular way.
5. When the judge knows or learns that an individual associated with the case has made a significant contribution to that judge’s campaign for office.

When it comes to cases involving the president, the fifth tenant is most relevant for Supreme Court justices. After all, the most significant contribution a prospective justice can receive is the initial appointment. Likewise, it can be argued that presidential appointments also violate the second and third tenets. The position of Supreme Court Justice does result in financial gain and may also create a sense of obligation to assist their nominating president. Therefore, the inherent relationship between a president and their appointed justices creates an appearance of impropriety, which naturally taints any conclusions of the court.

Despite the clear conflict of interest, it is rare that Supreme Court justices actually recuse themselves when the conditions for disqualification are met. While either party of a case is able to file a motion to recuse or disqualify, judges often fail to disclose such conflicts. One potential reason for this lack of integrity may be the administrative hoops that attorneys must jump through to file a motion for disqualification themselves. According to the DOJ, motions to disqualify “require the written approval of the Assistant Attorney General of the appropriate division prior to filing or supporting a motion to recuse or disqualify the judge, justice or magistrate” [5]. As a result, either another member of the government or the opposing party must agree that the judge has a conflict of interest, and there is still no guarantee that the motion will be accepted. Likewise, motions to disqualify may result in an appeal to a higher court. These appeals may effectively influence the behavior of lower court judges but are naturally ineffective for Supreme Court justices as there is no higher court to which the parties can appeal.

Due to the difficulties in forcefully disqualifying justices, the only way for a biased justice to be removed from the court is if they voluntarily do so. Given the degree of self-interest required to provide the appearance of impropriety, it is unlikely that justices will do so. As a result, there may be significant miscarriages of justice in Supreme Court cases involving former or sitting presidents. In US v. Nixon, these considerations are likely irrelevant as the decision was unanimous against Nixon, though more modern examples may have been decided based on such conflicts of interest. Most recently, in Trump v. Anderson, former president Donald Trump was in jeopardy of being removed from the presidential ballot due to his involvement in the January 6th insurrection at the US Capitol. The decision, although unanimous in its final verdict, was heavily contested by Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson for the lack of judicial restraint exercised by the court [6]. Therefore, had Donald Trump’s appointees been removed from the decision-making process, the rules created by the court would likely not have become precedent.

A similar issue occurs in several other cases against former president Donald Trump. Cases such as Trump v. Hawaii, Trump v. New York, and Trump v. International Refugee Assistance Project were each decided by a small margin and would have potentially resulted in different outcomes had Trump’s appointees been disqualified. Thus, the lack of official means for mandating a justice's disqualification may result in biased outcomes in favor of former and sitting presidents. Cases such as Trump v. Anderson demonstrate how these matters of judicial ethics are not merely trivial and can determine the fate of elections and national politics. Regardless of the political outcomes, it is imperative that the justice system remain committed to impartiality to ensure that political outcomes are grounded in sound reasoning and factual analysis, which the integrity of justices jeopardizes.

[1] U.S. Const. art. 2, § 2, cl. 2.

[2] Richard Nixon Presidential Library, Nixon and the Supreme Court Nixon and the Supreme Court | Richard Nixon Museum and Library (2021), https://www.nixonlibrary.gov/news/nixon-and-supreme-court (last visited Mar 26, 2024).

[3] Cornell Law School Legal Information Institute, Recuse Legal Information Institute (2012), https://www.law.cornell.edu/wex/recuse (last visited Mar 26, 2024).

[4] 28 U.S.C. Sec. 455

[5] Department of Justice, 1-5.000 - judicial disqualification Justice Manual | 1-5.000 - Judicial Disqualification | United States Department of Justice (2018), https://www.justice.gov/jm/jm-1-5000-judicial-disqualification (last visited Mar 27, 2024).

[6] Trump v. Anderson, Oyez, https://www.oyez.org/cases/2023/23-719 (last visited Mar 27, 2024).