4.2 The Appointment Process Flashcards
stages in the appointment process for Supreme Court justices
what are they?
- vacancy arises
- presidential nomination
- ABA rating
- senate judiciary committee hearings
- senate floor vote
stages in the appointment process for Supreme Court justices
Vacancy arises: how? examples? 2017 + 2020 + 2022
- retirement or impeachment
- Eg. Scalia died in April 2016 and was resplaced by Gorsuch in 2017
- Eg. Bader Ginsburg died in 2020 and was replaced by Coney Barrett
- Eg. Breyer retired 2022
stages in the appointment process for Supreme Court justices
presidential nomination: what is expected?
Who did Bush and Trump nominate? Who did Biden nominate? Who did Obama nominate?
- president chooses someone who they would like to fill a vacancy
- it’s expected the nominee has judicial experience and passes the Senate vote
- also probably same ideology of president
- Eg. George W. Bush and Trump both nominated ‘conservative’ justcies (Roberts, Alito, Gorsuch, Kavanaugh, Barrett)
- Eg. Obama and Biden nominated ‘liberal’ justices (Sotomayor, Kagan, Jackson)
Stages in the appointment process for Supreme Court justices
ABA rating: what is it? Clarence Thomas example?
- not a constitutional requirement
- offers a rating of ‘unqualified’, ‘qualified, well qualified
- all justices except clarence thomas hold a ‘well qualified’ rating
- this did make it difficult to get a confirmation in the senate
Stages in the appointment process for Supreme Court justices
Senate judiciary committee hearings: whats the process? any protests?
Kavanaugh + Barrett examples
- committee holds hearings when they can question a nominee
- committee votes at the end of the hearings
- not constitutionally required, serves only as a reccommendation
- Eg. During Kavanaugh’s hearings in 2018 allegations of sexual misconduct were levelled at Kavanaugh. Christine Blasey Ford came forward and protested against him. Republicans said democrats were fabricating this evidence
- Eg. Barrett’s vote was boycotted by the Dems on this committee in protest of the speed of cinfirmation replacing bader ginsburg
Stages in the appointment process for Supreme Court justices
Senate floor vote: process? (simple)
Eg. Thomas
- from 2017 these cannot be fillibustered. They require a simple majority
- Eg. Thomas was narrowly approved by 52-48 1991
the appointment of Brett Kavanaugh
protests (personal and political)? interest groups? FBI involvement? senate vote?
- Christine Blasey Ford brought allegations against him during the senate judiciary comittee hearings, saying he had sexually assulted her when they were in college. This was especially significant due to the #MeToo movement.
- pro choice NARAL organised protests and media headlines around the globe speculating about Kavanaughs appointment
- Trump ordered an FBI investigation into the allegations
- Senate approved Kavanaugh by 50-48 Joe Manchin only democrat to vote for him
presidential considerations for a judicial nominee
what are they?
4 main ideas
- judicial experience
- the outgoing justice
- the demographics of the Court
- the ideology of the nominee
presidential considerations for a judicial nominee
judicial experience: what is expected?
examples of exceptions
- experience as a judge and qualified in law
- Eg. nomination of Harriet Miers in 2005 was criticised as she lacked experience as a judge (she was not confirmed)
- Eg. Only current member who didn’t serve in the circuit courts was Elena Kagan, who was solicitor general for Obama
presidential considerations for a judicial nominee
outgoing justice: what is expected? what has it been more like in recent years?
examples of who didnt apply to this rule?
- the new justice should be a similiar ideology of the outgoing justice
- but this is increasingly rare in the hyperpartisan congress
- Eg. Alito 2006, Kavanaugh 2018, Barrett 2021
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presidential considerations for a judicial nominee
demographics of the court: what may be a president’s wish?
Obama + Biden
- president may want to widen the representative nature of the court
- Eg. Obama appointed 2 women, doubling the number that had ever served in the court. He also appointed Sotomayor, the first hispanic
- Eg. Biden nominated the first African American woman to the court, Kentanji Brown Jackson
presidential considerations for a judicial nominee
ideology of the nominee: how can a president tell? examples of them not always being successful?
- previous court rulings: it may be possible to ascertain their ideology
- this isn’t always successful, but presidents are rarely entirely wrong
- Eg. Justice Kennedy remained a conservative, just a moderate one
- Eg. Kavanaugh appeared on a list from the Heritage Foundation before Trump nominated him ???????? tf
the current court
role of a judiciary primarily is to be..? also, who is the swing justice?
- neutral
- it is unlikely a justice would describe themselves as ‘conservative’ or ‘liberal’ but their rulings can be categorised this way
- traditionally, the justce who is ideologically in the middle of the 9 is the ‘swing justice’
the current court
swing justice examples + in recent years
- Eg. Kennedy wsa the swing justice following the appointment of Alito in 2006
- Eg. Although justice Roberts is technically the ‘swing justice’, the role has been reduced in recent years as the court now has a substantial 6 justice conservative majority
the current court
justices appointed by how many presidents?
+ a lost mandate???
- 5 presdients
- Eg. Clarence Thomas has served since 1991, there has been a concern that the justices hold too much power long after the mandate of the presdient who appoitned them has been lost
the current court
conservative and judicial restraint?
- doesn’t necessarily follow that a conservative justice would also be a restrained one
the current court
divisions: how many cases are divided? what is the most common decision? what is the most important element in a decision?
- only 20% cases are decided with a 5-4 vote
- the most common decision is 9-0
- the most important element in a courts decision would be the constitution itself.
- This is because since the courts’ only power is judicial review, the only thing the court can base a ruling on is the constitution
comparison of ideologies on the court
conservative vs liberal
- conservative: wants to achieve rulings that produce a limited federal government, and uphold conservative ideals such as pro-gun and pro-life rights. Likely to literally interpret the constitution
- liberal: wants to achieve rulings that produce greater equality, this might mean a larger federal government, such as LGBTQ+ rights, and gun control. Likely to broadly interpret the constitution.
comparison of the ideologies on the supreme court
loose vs strict constructionist
- loose: broad interpretation of the constitution, which might include giving more power to the government
- strict: sticks to the wording. protecting state power
comparison of the ideologies on the supreme court
judicial restraint vs. judicial activism?
- restraint: limiting the court. deferring to the elected and accountable branches where possible
- activism: gives desirable social ends for their ideology. This may overturn previous corut rulings
comparison of the ideologies on the supreme court
living constitution vs originalism?
- living: constitution is evolutionary, can be reinterpreted over time. Closely linked with loose constructionism
- Originalism: meaning is set by the original principles. it should not be reinterpreted in light of modern advances
strengths and weaknesses of the appointment process
how long is it overall?
length of the process
2-3 months
strengths and weaknesses of the appointment process
Obamas executive order regarding DAPA: how did events unfold? what would have Merrick Garlands appointment meant?
disadvantage of length of the process
- challenged in the court
- death of Anthony Scalia meant tehre were only 8 justices to hear it
- with a 4-4 split the lower courts decision stood, which defeated it
- IF Garland was appointed, he would have voted with the ‘liberals’ and obama’s policy would have been saved.
strengths and weaknesses of the appointment process
what does it help ensure?
advantage of length of the process
- the candidates must undergo extensive vetting and it is made sure they are fully suitable for the court
- Miers was withdrawn due to her lack of experience as a judge.
- it is vital the justices are well qualified due to the power of judicial review.
strengths and weaknesses of the appointment process
main reason for the politicisation of the process?
- the president nominates supreme court justices
strengths and weaknesses of the appointment process
questioning of the Senate Judiciary Committee? examples (% of time spoken by the nominees vs the senators)
politicisation of the process
- 33% of the time over the 4 days of hearings was spoken by the nominees during Alito, Sotomayor, Kagan, Gorsuch hearings.
- the rest of the time was spoken by senators
strengths and weaknesses of the appointment process
Kennedy: example of justice not suiting the presidents idelogy
politicisation of the process
- reagan nominee
- kennedy was moderate during his time in the court, often voting with both liberal and conservative wings of the court in defiance with Reagans own conservativism
strengths and weaknesses of the appointment process
January 2022 justices: example of justices going against what the president wishes.
- January 2022: short unsigned note from the court defied Trumps request to prevent congress from acessing white house documents from 6 January
- courts only dissent was Thomas, not any of the 3 appointments Trump made to the court
strengths and weaknesses of the appointment process
Gorsuch and Jacksons appointments and interest groups?
politicisation of the process
-Gorsuch: donors to the Judicial Crisis Network gave $10m in support to his appointmnet
- Jackson: Demand Justice lanched a $1m campaign to support Jacksons nomination
strengths and weaknesses of the appointment process
American Bar Associations role in politicising the court
politicisation of the process
- no constitutional standing
- members are unaccountable
- rating of a candidate can still hugely affect theri chances
strengths and weaknesses of the appointment process
defence of politicisation>
- unelected and unaccountable nature of the supreme court
- only mandate htey can claim is they were appointed by representatives in 2 branches of government
- this lends them legitimacy, meaning even more controversial court decisions have been enforced by other branches of government.
appointment of Amy Coney Barrett
speed at which Bader Ginsburg was replaced
- 7 weeks
- despite Merrick Garland (obama’s nominee) being upheld for 8 months
- senate leader mitch mcConell accused of hipocrisy in 2020
appointment of Amy Coney Barrett
why was coney barretts appointment controversial?
- swung the court
- Bader Ginsburg was a stanunch liberal
- Coney Barrett a conservative catholic
appointment of Amy Coney Barrett
democrats boycott of Senate Judiciary Committee vote
- placed pictures of people who benefitted from Obamacare in the seats of those democrats who boycotted the vote
- they were concerned Obamacare would be struck down if Barrett was approved
- 12-0 approvd by the committee
- 52-48 ratification by the senate just 8 days before the 2020 election
