20.2 - The Appointment Process for Supreme Court Justices

Question 1

What powers does Congress hold over the Supreme Court?

Answer 1

They control the infrastructure of lower courts and sets the number of justices on the Supreme Court.

They also approve presidential appointments to the Supreme Court.

Question 2

What powers does the President hold over the Supreme Court?

Answer 2

Nominates people to the Supreme Court.

Question 3

What are the main stages in nomination for Supreme Court justices?

Answer 3

• Vacancy arises
• Presidential nomination
• ABA rating
• Senate Judiciary Committee Hearings
• Senate Floor Vote

Question 4

How can a vacancy arise on the Supreme Court?

Answer 4

• Death (Justice Scalia dying in 2016)
• Retirement (Justice Kennedy in 2018)
• Impeachment (Samuel Chase 1805, not guilty)

Question 5

What happens after a vacancy arises on the Supreme Court?

Answer 5

The President nominates whomever he likes. (It is expected that they will have some judicial experience, and are likely to share the president’s ideology)

• Bush and Trump nominated conservative judges (Roberts, Kavanaugh) while Obama appointed more liberal judges (Sotomayor, Kagan).
• Bush nominated Harriet Miers, who had no prior judicial experience.

Question 6

What happens after the Presidential nomination?

Answer 6

Not a constitutional requirement, but the ABA offers a rating of ‘unqualified’, ‘qualified’ or ‘well-qualified’ for judicial nominees.

• All but one current justices holds a ‘well-qualified’ rating.
• Clarence Thomas is the only one to not hold this rating, and it made his appointment very difficult.

Question 7

What happens after the ABA rating?

Answer 7

Not a constitutional requirement, but the Senate Judiciary Committee holds hearings to question the nominee. At the end of the hearings, the committee holds a vote. As it is not constitutional, the vote serves as a recommendation for the rest of the Senate.

• Hearings of Clarence Thomas 1991 heard allegations of sexual misconduct and the committee became evenly split on whether or not to recommend Thomas.
• Robert Bork was rejected 9-5 and subsequently faced defeat in the full Senate vote.

Question 8

What happens after the Senate Judiciary Committee Hearings?

Answer 8

The whole Senate votes to confirm the appointment. From 2017, this cannot be filibustered and requires a simple majority.

• Robert Bork 1987 was defeated 42-58.
• Clarence Thomas 1991 narrowly approved 52-48.

Question 9

What are the main presidential considerations for a judicial nominee?

Answer 9

• Judicial experience
• The outgoing justice
• The demographics of the Supreme Court
• The ideology of the nominee

Question 10

Why is judicial experience a consideration for judicial nominees?

Answer 10

It is a general expectation that the nominee has experience as a judge.

The only current member of the Supreme Court who does not is Elena Kagan, who was the solicitor general for President Obama.

Question 11

Why is the outgoing justice a consideration for judicial nominees?

Answer 11

The President is occassionally expected to replace a justice on a ‘like-for-like’ basis in terms of ideology, although this has become far less common recently.

Neither Alito nor Kavanaugh can claim to be ‘like-for-like’ as they are far more conservative than their predecessor.

Question 12

Why are the demographics of the Supreme Court a consideration for judicial nominees?

Answer 12

A president may wish to widen the representative nature of the Supreme Court.

Obama appointed two women and appointed the first ever Hispanic person to the Court.

Question 13

Why is the ideology of the nominee a consideration for judicial nominees?

Answer 13

Almost all nominees have some qualification in law.

From their previous rulings, you can attempt to ascertain out their ideology. This is not always successful, but it is rare for a president to be entirely wrong.

Question 14

How will a Conservative justice act on the Supreme Court?

Answer 14

• Tend to produce limited federal government
• Uphold conservative ideals (i.e. abortion, gun rights)
• Likely to interpret the Constitution more literally

Question 15

How will a Liberal justice act on the Supreme Court?

Answer 15

• Will try to achieve greater equality (even if that means extended the federal gov.)
• Uphold liberal ideals (LGBT rights, gun control)
• Likely to interpret the Constitution more broadly

Question 16

How will a strict constructionist justice act on the Supreme Court?

Answer 16

• Will interpret the Constitution more literally without interpretation
• Tends to enshrine state power

Question 17

How will a loose constructionist justice act on the Supreme Court?

Answer 17

• Will interpret the wording of the Constitution more broadly
• Tends to give more power to the federal gov.

Question 18

How will a judge who shows judicial restraint act on the Supreme Court?

Answer 18

• Believes in a limited role for the Supreme Court
• Deferring to the elected branches of gov. if possible

Question 19

How will a judge who shows judicial activism act on the Supreme Court?

Answer 19

• Gives rulings to give desirable social ends for their ideology
• May overturn previous court rulings

Question 20

How will a judge that believes in a living constitution act on the Supreme Court?

Answer 20

• The Constitution as a living, organic and evolutionary doc. to be reinterpreted over time
• Closely linked to loose constructionism

Question 21

How will a judge that believes in originalism act on the Supreme Court?

Answer 21

• The meaning and interpretation of the US Constitution is set by the original principles of the doc.
• Shuold not be subjected to broad interpretation in modern times
• Closely linked to strict constructionism

Question 22

What ideologies do Conservative justices tend to have?

Answer 22

• Conservative
• Strict Constructionist
• Originalism

Question 23

What ideologies do liberal justices tend to have?

Answer 23

• Liberal
• Loose Constructionist
• Judicial activism
• Living constitution

Question 24

What is the most common decisions passed down by the Supreme Court?

Answer 24

9 - 0

Question 25

How often are 5 - 4 decisions passed down by the Supreme Court?

Answer 25

~20%

Question 26

What are the strengths and weaknesses of Supreme Court appointments?

Answer 26

The weaknesses are also strengths, depending on interpretation.

• The length of the process
• The politicisation of the process

Question 27

How long is the process from nomination to Senate ratification?

Answer 27

~2 - 3 months

Question 28

Why is the length of the process an issue?

Answer 28

If a justice dies (or is impeached), there is a time where there are only 8 justices on the court meaning the rulings given by the Court below would stand.

When DAPA was challenged, the death of Antonin Scalia meant there were only 8 justices to hear the case. An ensuing 4 - 4 tie meant that Obama’s exec. order was struck down.

Question 29

Why is the length of the process a benefit?

Answer 29

It ensures that candidates undergo sufficient vetting. Given the power of the Supreme Court, it is vital that selected justices are appropriate.

Harriet Miers’ withdrawal from the process was in part due to the critical reaction given to her lack of experience as a judge.

Question 30

Why is the politicisation of the process an issue?

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Answer 30

As the President nominates, and the Senate approves, the appointment is highly politicised as a result.
Since 2006, Republican nominees have been opposed by Democrats and supported by Republicans and vice-versa. This has broadly been regardless of qualification or experience of the nominee.

The role of the Senate Judiciary Committee is also an issue. Given the role of the hearing is to determine suitability, its success can be questioned as nominees speak for such a short amount of time.
During Alito, Sotomayor and Kagan hearings, the nominees only spoke for 33% of the time.

Presidents politicise the justices by nominating justices who have an aligning ideology with themselves.
Sonia Sotomayor and Obama shared similar political outlooks.

The press and pressure groups politicise the process.
The Judicial Crisis network donated $10 million to support Neil Gorsuch and donated $7 million to oppose Merrick Garland.

Question 31

Why is the politicisation of the process a benefit?

Answer 31

The unelected and unaccountable nature of the Supreme Court requires some legitimacy. This comes from their appointment by an elected President and elected Senate.