ETVT the appointments process is fit for purpose (30) Flashcards
Good scrutiny
Each nominee to the supreme court received detailed background scrutiny from the White House, FBI and the Senate judiciary committee.
Before the full senate vote on Brett Kavanaugh the FBI investigation reported sexual assault allegations on him, as a result the FBI carried out a full investigation and found no evidence for additional delay.
The senate judiciary committee also undertakes detailed scrutiny, the answers for Harriet Miers pre hearing questionnaire was described as ‘incomplete and insulting’ by several senators, she withdrew from the nomination process as a result.
Involvement of a specialist professional interest group such as the American Bar association, Clarence Thomas was given a ‘qualified’ rating when appointed in 1991. In 1971 Nixon backed away from appointing Mildred Lillie to the court when she was given a ‘not qualified’ rating.
Ineffective scrutiny
The senate judiciary committee has become more politicised in its approach, question is aggressive and personal, the hearing process now has lost much of its objective scrutiny.
When Geroge Bush nominated Clarence Thomas to the court in 1991, the senate failed to question the nomination on the grounds of his qualification but his conservative philosophy and allegations of sexual harassment.
2018 appointment of Brett Kavanaugh led to a similar outcome.
Good checks from other branches
This is a good example of checks and balances, meaning that not one branch has too much power over the other.
The senate for example provides an important check on the power of the president through the senate ratification vote of all SCOTUS appointments, president therefore is forced to mindful over who he chooses.
The appointment of the justices to the supreme court applies a very important check on SCOTUS.
In 1987 Robert Bork was nominated justice of the supreme court however he was rejected 58-48 with 6 republicans voting nay, meaning there was some level of bipartisan ship.
Checks are ineffective
The senate vote is not necessarily a good check on the presidents appointment, if the Presidents party sits in the senate with a majority, they may be able to vote through any candidate that is suggested.
Growing politicisation with the state vote, increasingly divided and partisan.
The rejection of Robert Bork in 1987, 52 senate members voted nay, so even if all republicans voted yes, he would not have passed. Reagan appointed, clear political link.
Stephen Breyers 1994 nomination vote was the last to receive almost unanimous support by a margin of 87-9, however Brett Kavanaghs voted was 50-48 where just one republican and democrat broke party lines.
Presidents nominate justices on their political leanings
The process has become over politicised with justices being nominated based on their political leaning and judicial philosophy not on competence and legal expertise, Democrats tend to appoint liberals and republicans appoint conservatives.
In March 2016, Obama nominated Merrick Garland, Chief Judge of the US Court of Appeals for the DC Circuit, who has been praised by many Senate Republicans in the past. However, the Senate has insisted that the winner of the 2016 presidential election make the nomination, giving voters the opportunity to influence the appointment.
Vast sums of money were spent by groups opposing and supporting the appointment of Brett Kavanaugh in 2018, a democrat group called demand justice spend over 1 million on tv ads opposing Kavanaugh.
2016 Trump said he would only pick candidates from the Federalist society, a conservative society for law advocating a originalist approach.
All of Trumps recent nominations have been labelled as conservatives, Gorsuch, Kavanaugh and Barret and Obamas two choices Sotomayer and Kagan were labelled liberals. Dobbs v Jackson 2022 EXACT SPLIT
Nominees are difficult to predict
When presidents appoint justices to the court they are not always able to know how they will vote.
When president Geroge Bushe nominated Justice David souter in 1990 he was generally expected to be a conservative, however once confirmed he regularly sided with liberal justices, and was labelled the ‘stealth justice’.
For example in DC v Heller 2008 he dissented and sided with Breyer and Ginsburg.
Ronald Reagan appointed Kennedy in 1988 to the Supreme Court, sided with Obergefell v Hodges in 2015.
