15.2a Appointment Process Flashcards
Vacancy and nomination
A vacancy occurs when a justice retires, dies or is impeached.
The president looks for a suitable candidate, drawing up a shortlist of candidates who are interviewed.
The president mainly recruits justices from the federal Courts of Appeals, the state courts and the executive branch.
Elena Kagan was Solicitor General at the Department of Justice when nominated in 2010.
The president publicly announces their nominee at the White House and the American Bar Association gives the nominee a professional rating.
Senate confirmation
The Senate Judiciary Committee holds a confirmation hearing and votes to recommend whether the candidate should be confirmed by the Senate.
The Senate debates and then votes on whether to confirm the nominee. A simple majority is needed for a nominee to be confirmed to the Supreme Court.
Factors influencing nomination
Supreme Court appointments are important for president’s because the Court has significant power and appointments last for life.
A president’s nomination considers a judge’s political outlook, suitability and the balance of judicial philosophies on the Supreme Court.
Judicial outlook
The president will consider the political views and judicial philosophy of the judge they nominate.
The nominee often has similar political outlooks to the president, with Republican presidents nominating conservative judges and Democratic presidents nominating liberal justices.
The president often chooses a judge who has the same stance on key issues, such as abortion and gun control.
Experience
The president will nominate highly experienced judges that are suitable for a role on the most important court in America.
All judges are assessed by the American Bar Association on their legal qualifications as part of the appointment process.
Chief Justice John Roberts was a judge on the United States Court of Appeals before his nomination to the Supreme Court.
Balance
The president takes into account the balance of political views on the Supreme Court.
The president’s nomination will usually look to keep the balance on the court between conservative and liberal judges, however, an appointment can swing the balance one way or another.
Anthony Kennedy was a swing justice who could not be classified as liberal or conservative and kept a balance between conservatives and liberals on the Supreme Court.
Strength: checks and balances
Congress and the president both have a role in appointing Supreme Court judges.
The appointment process allows for constitutional checks and balances on the judiciary by the executive and legislative branches.
The president nominates a candidate and the Senate votes to confirm or reject them.
Strength: strong candidates
Strong Supreme Court candidates are supported by both parties in the Senate’s confirmation vote.
This means that the appointment process will ensure suitable and strong candidates are chosen for the Supreme Court, as Senate politicians will not always vote according to their party and political views.
Ruth Bader Ginsburg was confirmed by 96-3 in 1993.
David Souter was confirmed by 90-9 by a Senate with a Democratic Party majority, despite being nominated by a Republican president, George H. W. Bush.
Strength: Judicial Committee
The Senate Judicial Committee questions a nominee in detail about their suitability. All committee members ask questions before voting their recommendation to the Senate.
Judge Neil Gorsuch faced tough questions as part of a committee hearing which lasted four days.
Weakness: politicisation
When confirming a judge, the Senate focuses more on a judge’s stance on key issues than on their suitability for the Supreme Court.
Robert Bork’s failed confirmation to the Supreme Court in 1987 focused on his views against abortion rather than his qualifications.
The president appoints judges whose political views and judicial philosophy is similar to their own.
The most liberal members of the court include Elena Kagan, appointed by President Obama, and Ruth Bader Ginsburg, appointed by President Clinton.
Weakness: Judiciary Committee
The Senate Judiciary Committee is politicised. Members on the committee often vote on party lines (with their political party) rather than on a candidate’s ability.
Senate Judiciary Committee members from the opposition party to the president may attack nominees rather than find out information on their suitability.
Committee members from the president’s party often ask the nominee soft questions.
Weakness: media
The media is often concerned with issues other than the nominee’s qualifications, particularly in the case of more controversial candidates.
Media coverage can make the appointments process more complicated and controversial, can delay votes and change public opinion on the nominee and the appointment process.
Clarence Thomas faced several sexual assault allegations in 1991, which became the focus of the media coverage.
However, some may argue that media coverage makes the process more transparent.
