Supreme Court Appointment Process Flashcards
are the justices appointed for life?
Yes
how does a vacancy for a new Justice arise
- If a justice does
- If a chooses to retire
- If it a justice impeached
what are the 3 main steps in the appointment process
- Vacancy Arises
- Nomination - The president with support from White House officials draws up a short list, the shortlist is scrutinised including interviews with the President and full FBI reports like Background Checks
- Senate Confirmation - The Senate Judiciary Committee holds hearings and interviews the nominee and votes. The American Bar Association gives a report and ratings (not qualified, qualified, well-qualified). The full senate then votes with a simple majority being required.
evidence for the appointment process - Vacancy
The vacancy arises - Stephen Breyer announced retirement at age 83 in January 2022
evidence for the appointment process - President Nominates a candidate
Nomination - February 2022: Biden considers candidates, with Ketanji Brown Jackson and Michelle Childs as leading
candidates. Biden announces his intention to appoint a black woman
The FBI carries out background checks on both of them
25 February 2022 - Biden announces the nomination of Ketanji Brown Jackson
Trump outsources Supreme Court picks to Federalist Society, 2018.
evidence for the appointment process - Senate Confirmation
March 2022: American Bar Association gives Jackson (a
Court of Appeals Judge) the highest rating of ‘well qualified’.
March 2022: 4 days of hearings with the Senate Justice Committee
4 April 2022: Senate Justice Committee vote on Jackson, exactly divided along party lines, 11-11
7 April 2022: Whole Senate voted 53-47 on Jackson’s confirmation, with 3 Republicans voting for her.
In 2016 the conservative justice Antonin Scalia died. Obama appointed moderate liberal Merrick Garland, but the Republican-controlled Senate refused to even
hold hearings
factors influencing the president’s choice of nominee
- Ideology - Candidate with Ideology similar to the President and his party
- Judicial Ability - A sufficiently qualified candidate with experience
- Demographics - Ensure a SC that ‘looks like America’ - gender, race and religious mix
- Political - A candidate that can be approved by the Senate, if the senate majority is unbalanced politically, then the candidate is more likely to be moderate
- Age - Appoint a justice with more than few years ahead of them
weakness of the appointment process
- Nominations are Partisan - One major factor in nominations is the candidate having the same ideology as the president and his party. Presidents appoint liberal or conservative judges and retirement are timed to fit with the matching President being in office.
- Confirmations are partisan - The Ratification has been politicised, and both hearings and the senate vote are partisan. The political leanings of the Senate have become key in the process. Republicans support conservative justices and Democrats liberal ones. They vote with their party rather than the qualifications or objective merits of the candidate.
- The constitution is vague on certain details as it doesn’t set a time limit on the Senate Process, there are no details on how long it should take in the constitution as it doesn’t explicitly set out the rules and guidelines meaning appointments can be stalled for as long as possible and it is ‘legally allowed’.
- Polarization has increased partisan appointments and produced partisan judges.
examples for the appointment process being weak - Nominations are partisan
Nominations are partisan - In his final presidential debate with Hillary Clinton, Donald Trump said the Supreme Court would “automatically’’ overturn Roe vs. Wade once he became president, ``because I am putting pro-life justices on the court.’’
He then announced a list of 25 candidates for Kennedy’s seat, which he has reportedly narrowed to two or three finalists, was selected by the Federalist Society, a right-wing think tank started by law students in 1982 to move the courts to the right.
He also nominated 3 justicies - Gorsuch, Kavanuagh, Coney Barrett who all voted to overturn Roe v Wade in Dobbs v Jackson WHO 2022
examples for the appointment process being weak - Confirmations are partisan
In 2016 the conservative justice Antonin Scalia died. Obama appointed moderate liberal Merrick Garland, but the Republican-controlled Senate refused to even
hold hearings
Senate Vote is partisan - Amy Coney Barett - pro-life right-wing judge. The vote was a formality, with senators divided almost entirely along party lines, voting 52 to 48 with just one Republican breaking ranks(Susan Collins). Locking in rightwing domination of the nation’s highest court for years to come.
The refusal of the republican senate to appoint Garland contrasted with their appointment of Coney Barett, completely disregarding the argument they made 4 years earlier about timing as Coney Barett’s confirmation was made 8 days before the election, while Garland’s was blocked because it was roughly 10 months before the presidential election
Hearings are partisan - Kavanaugh’s nomination was controversial due to allegations of sexual assault and misconduct that were brought forward by several women, including Christine Blasey Ford, who testified before the Senate Judiciary Committee. Republican Senators believed that he didn’t assault her, with Rep Senator Lindsay Graham of South Carolina, claiming that the allegations were set to ‘destroy this guy’s life’, while then Democrat Senator Harris, called Christine Ford ‘brave’ and said ‘I believe you’.
examples for the appointment process being weak - The constitution is vague on certain details
Scalia’ supreme court seat was vacant for more than 400 days
strengths of the appointment process
- Intense scrutiny of candidates ensures well-qualified judges
- Intense scrutiny of candidates ensures personal suitability
- Appointments for life ensure independence
evidence for strengths of the appointment process - Intense scrutiny of candidates ensures well-qualified judges
ABA Ratings - March 2022: American Bar Association gives Jackson (a
Court of Appeals Judge) the highest rating of ‘well qualified’.
Senates Hearings - Transcript of the Senate Hearing of Amy Coney Barrett with Senators quizzing her on her stance on Obamacare and abortion, which they defined as the ‘most important facing millions of Americans’, deciding if she was well qualified to fill RBG’s seat
evidence for strengths of the appointment process - Intense scrutiny of candidates ensures personal suitability
FBI checks, ensure that the candidate’s background is suitable - In 1987 Reagan nominee Douglas Ginsburg had to withdraw after the FBI found he had not declared that he had used marijuana at college
Senate hearings bring up things in people’s backgrounds that ensurees that nominees are suitable in regards to their personal history
evidence for strengths of the appointment process - Appointments for life ensure independence
Neil Gorsuch has, somewhat surprisingly, sided with the liberal judges of the court in several cases, on gay rights and the deportation of illegal immigrants for example. This despite being appointed by Trump as a
presumed conservative judge, on the advice of the conservative think tank the Federalist Society. Presidents have no control over judges once appointed.
