4.2 Appointment process for SC Flashcards
5
Describe the 5-step process for appointing a US SC judge
- Vacancy occurs
- Presidential nomination
- American Bar Association (ABA) rating
- Senate Judiciary Committee
- Senate floor vote
3 with examples
When will a vacancy occur?
- Death of a Justice (e.g. Antonin Scalia in 2016)
- Retirement (e.g. Stephen Breyer resigned in 2022 to allow for liberal successor)
- Impeachment (Samuel Chase 1805, though acquitted)
4
Describe Presidential considerations for a judicial nominee
- Judicial experience
- Demographics of justices
- Ideology of outgoing justice
- Ideology of nominee
3
Describe judicial experience (presidential nomination)
- Nominee should have experience and be qualified in law
- ABA rates candidates as ‘well qualified’, ‘qualified’ or ‘unqualified’
- Only current member not serving on circuit court when appt is Elena Kagan (solicitor general for Obama)
ABA - American Bar Association
4
Describe Harriet Miers
- 2005, nominated following Sandra Day O’Connor’s retirement
- Served as White House Deputy Chief of Staff
- Never served at judge at any level - lacked judicial experience
- 2007, nomination withdrew after bipartisan opposition
2
Describe consideration of outgoing justice (presidential nomination)
- President may be expected to replace justice with ideologically similar judge
- Yet this is rare - Kavanaugh (2018) and Barrett (2021) were both conservative than predecessors
2
Describe demographics of SC (presidential nomination)
- President may wish to widen represenattive nature of Court
- e.g. Biden appt first AA woman to SC - Ketanji Brown Jackson
3
Describe the ideology of the nominee (presidential nomination)
- Can ascertain ideology from previous rulings as nearly all nominees have been a judge on a lower court
- e.g. Kavanaugh appeared on a list from the Heritage Foundation (right wing think tank)
- but may not be succesful in finding ideologicla match e.g. Anthony Kennedy (Reagan) a conservative, yet more moderate than expected
6
Describe the Senate Judiciary Committee hearings
- 21 members (proportional to party distribution in Senate)
- Scrutinise nominees through hearings and hold vote
- Hear from relevant individuals/groups
- As the committee is not actually constitutional, it is only advisory
- yet has considerable influence on Senate vote
- e.g. Robert Bork rejected by committee 9-5 and subsequently rejected by Senate
3
What happened in Amy Coney Barrett’s committee vote?
- boycotted by Democrats
- in protest at speed of confirmation
- won vote 12-0
3
Describe the Senate floor vote on SC appointment
- Senate must vote to confirm appointment
- following 2017 reforms, this vote can no longer be fillibustered and requires simple majority
- all votes have become partisan since 2006
1
Give an example of a successful Senate floor vote
- 1993, RBG confirmed 96-3
1
Give an example of an unsuccessful Senate floor vote
- 1987, Bork rejected 58-42
4
Describe the ‘swing justice’
- The justice that is in the idelogical middle of the 9 US SC justices
- Majority decision often a result of ‘swing justice’ decision
- Previously taken up by Kennedy, Day O’Connor
- Role of ‘swing justice’ currently reduced with 6 conservative justices
4
Describe the frequency of split decisions in the SC
- only 20% of rulings are decided with 5-4 vote
- 2016-17, 57% of decisions were unanimous 9-0 vote
- e.g. McElrath v Georgia 2024
- factors such as constitution more pervasive in deciding plurality of cases rather than ideology
6
List Conservative judges on the SC
- Clarence Thomas (Bush Sr)
- John Roberts (Bush jr)
- Samuel Alito (Bush jr)
- Neil Gorsuch (Trump)
- Brettt Kavanaugh (Trump)
- Amy Coney Barrett (Trump)
(moderate to rights): Roberts → Kavanaugh → Barrett → Gorsuch → Alito → Thomas
3
List liberal judges on the SC
- Sonia Sotomayor (Obama)
- Elena Kagan (Obama)
- Ketanji Brown Jackson (Biden)
(moderate to right): Sotomayor → Breyer (Clinton) → Kagan → Jackson
3
Describe conservative judges
- More likely to produce rulings that limit federal government
- Uphold conservative ideals e.g. pro-gun, pro-life
- more likely to be strict constructionists
4
Describe liberal judges
- More liekly to produce rulings that produce greater equality
- Uphold liberal ideals e.g. LGBT rights and gun control
- May indicate larger federal government
- more likely to be loose constructionists
3
Describe the diversity of the US SC
- Ethnicity - 6 white justices, 2 black justices, 1 hispanic justice
- Gender - 5 men, 4 women
- Religion - 6 catholics, 2 protestants (Gorsuch/Jackson), 1 Jew (Kagan)
What happens when a ruling is tied?
Original ruling stands
2
Give an example of a tied ruling
- Obama’s executive order regarding DAPA struck down by 4-4 vote that led to lower court decision standing
- Office left vacant after liberal Antonin Scalia’s death and Republican obstructionism of nomination
1
Describe controversy over Sotomayor
- in 2001 claimed that latina woman justice could make better rulings than white male
2
Describe the financing of SC justices
- Judicial Crisis Network given $7m by donors to oppose Garland appointment, $10m to support Gorsuch appointment
- Demand Justice launched $1m campaign to support Jackson nomination
2
What did Biden campaign for in 2020 on the Supreme Court?
- To appoint a black woman
- Best example of political appointment
3
Describe the Presidential Commission on the Supreme Court
- 2021 Biden signed executive order to create committee made up of legal scholars to invetsigate possible SC reforms
- Reported that there was bipartisan support for 18-year term limits
- Yet no consensus on court expansion
2
Give an example of how Chief Justice John Roberts is moderate
- 2012, SC declared Affordable Care Act (ACA) constitutional
- Deciding vote by Roberts
2
Describe the limited time given to nominees in SJC hearings
- Hearings of Alito, Setomayor, Kagan and Gorsuch
- Nominees only spoke for 33% of hearing - rest taken up by Senators
3
Give an overview of the strengths/weaknesses of the SC Appointment process
- Length of process
- Legitimacy
- Judicial independence
5
Describe the strengths of the SC Appointment process - length
- Ensures well-qualified candidate
- Length of process (usually 2-3 months) allows vetting for judicial experience
- e.g. Harriet Miers
- ABA ratings ensure experience
- important justices are sufficiently competent as have hugely consequential judicial review powers
3
Describe the weakness of the SC Appointment process - length
- vacancy caused by death/impeachment leaves even number (8) of justices
- causes tied rulings e.g. Obama DACA
- lifetime appointments creates eventual Court that reflects an ideology inconsistent with future public will
2
Describe the strengths of the SC Appointment process - grants legitimacy to SC
- elected President and Congress hold role
- role of Senate Judiciary Committee
3
Describe the weakness of the SC Appointment process - SC has lack of legitimacy
- ABA unelcted/unaccountable - lacks constitutional weight, so should lack influence
- nominees rarely speak in SJC hearings
- can therefore be questioned whether nominees are adequately qualified
2
Describe the strengths of the SC Appointment process - judicial independence
- Senate confirmation prevents Presidential packing
- President’s ideological nominations may not be successful (e.g. Roberts is a moderate)
4
Describe the weakness of the SC Appointment process - lacks independence
- All appointments since 2006 voted on party-lines in Senate
- media circus undermines independence e.g. Kavanaugh, Sotomayor
- financing of nomination campaigns
- politicisation of process prevents independence
2
Describe Earl Warren
- Appointed by Republican Eisenhower
- More liberal than expected
1
What was Kavanaugh’s past role?
Was a republican lawyer on Clinton impeachment case - politicisation of judges
1
Describe Samuel Chase
- Impeached but not removed
