Evaluating the SC confirmation process Flashcards
List the strengths of the confirmation process
- Candidates will face detailed background scrutiny from the WH, FBI, SJC and the media. This means any controversial decisions or past transgressions will be uncovered
- The SJC performs detailed scrutiny through its hearings, where it ascertains candidates suitability for the role and their views on a range of judicial issues
- Senate confirmation provides a check on presidential control of the process, as the president must be mindful that they select a candidate that will have sufficient senatorial support
- Although presidents pick justices who are ideologically aligned with themselves, many justices have gone on to disappoint their political patrons
- The involvement of professional independent organisations like the American Bar Association provides legislators with additional info to help them choose a candidate
What does most modern day criticism of the appointment and confirmation process centre around?
Accusations of politicisation by the president, senator and media
Give an example of a candidate receiving detailed background scrutiny
A full senate vote on Kavanaugh was delayed until the FBI had carried out a full investigation of his sexual assault allegations. This was in addition to his initial FBI background check. R senator Jeff Flake told Trump he could not back the nomination until the FBI had completed this extra investigations. The FBI found no evidence supporting the allegations
Give an example of SJC scrutiny of a nominee?
All nominees have to complete a length pre-hearing questionnaire. The answers by Harriet Miers in 2005 were described by the senior D and R members as ‘incomplete’ and ‘insulting’, asking that she re-do the questionnaire. She pulled out shortly after
Give an example of the need for senate approval limiting the presidents control of the process
Senate rejection of Robert Bork
Give two examples of SC justices going on to disappoint the president who had nominated them
- When GHWB nominated David Souter he expected a conservative. Once appointed he regularly sided with the liberal justices
- Eisenhower described his appointment of Chief Justice Earl Warren as ‘the biggest damn-fool mistake I ever made’, as his decisions were far more liberal than Eisenhower accepted. An example of this could be Brown v Board of Education of Topeka
Give an example of the ABA providing specialist information to help the senate with their decision making
The ABA will rate justices as either ‘well qualified’, ‘qualified’ and ‘not qualified’. The only recent example of a justice being ranked anything other than ‘well qualified’ was Clarence Thomas in 1991, who was given just ‘qualified’
Give an example of ABA involvement actually being negative
In 1971, Nixon seriously considered Court of Appeals judge, Mildred Lillie. She would have been the first female justice had Nixon not have backed off due to the then all male ABA rating her as ‘not qualified’
List the weaknesses of the confirmation process
- The process has become over politicised, with justices being nominated on the basis of their political ideology or judicial philosophy, rather than exclusively on their legal expertise and competence
- The SJC is equally politicised in its approach, being aggressive and personal when questioning opposition candidates but being conciliatory to the point of no longer providing objective scrutiny when the candidate is nominated by a president from their own party. This means that the main objective of providing robust scrutiny has been diminished in favour of partisan posturing
- Although professional interest groups may be expected to provide non-partisan advice, this will not always be the case
- The public nature of the process can lead to it becoming a media circus, with public protests and highly partisan media coverage becoming the norm. This arguably deepens the political divide in America. Opposing interest groups often pour millions of dollars into lobbying the senate and political advertisement
- The process reinforces the idea of a highly politicised court, with a clear divide between its conservative and liberal wings. This appearance makes it harder for the SC to be an impartial referee
What type of justice will an R president look at appoint?
A conservative justice who advocates for judicial restraint
What type of justice will a D president look to appoint?
A liberal justices who advocates judicial activism
What is a conservative justice?
A judge who generally holds a originalist interpretation of the constitution and favour following what the FF meant. They are less likely to ‘discover’ new rights when ruling on cases. They will have a more right wing stance on controversial issues, such as opposing abortion and supporting gun rights
Define judicial restraint
A term associated with conservative justices, referring to their general preference to not extend judge made law. The constitution should be searched for its original intent and if it silent on an issue, the courts should not create a new law, as this task belongs to elected politicians and legislatures
What is a liberal justice?
A justice who interprets the constitution more broadly in order to give people more freedom and bring about social change. They are more likely to ‘find’ new rights when ruling on cases, especially those that benefit minority groups. It also suggests a more progressive stance on controversial issues, such as supporting affirmative action, and retaining a clear separation between church and state
Give an example of how the confirmation process has become more politicised in recent years
The last near unanimous vote was Stephen Breyer in 1994, by a margin of 87-9. By contrast, Kavanaugh just scraped in at 50-48 in 2018, with just 1 D and R breaking from their respective parties
