US Supreme Court and Civil Rights - Topic 4.2 Flashcards
The appointment process
What are the five stages of the justice appointment process?
- Vacany arises - Either by death, retirement or impeachment of a current justice
- Presidential nomination - The president can choose whomever they like to fill a vacany, though it’s expected they’ll have judicial experience
- ABA rating - The ABA offers a rating of ‘unqualified’, ‘qualified’, or ‘well qualified’ for nominees, in its professional opinion
- Senate Judiciart Committee hearings - Can question the nominee. Holds a vote at the end of the hearings, but only serves as a recommendation for the whole senate
- Senate floor vote - The whole Senate must vote to confirm an appointment, which can no longer be filibustered and requires just a simple majority
What must the president consider for a judicial nominee?
- Judicial experience - The justice should have experience as a judge and be qualified in law
- The outgoing justice - The president may be expected to replace a justice on a ‘like-for-like’ basis in terms of ideology as this is likely to face less opposition in the Senate. This hasn’t happened in recent nominations
- The demographics of the Supreme Court - A president may wish to widen the representative nature of the Court. The Court has become more reflective with recent nominations
- The ideology of the nominee - From previous rulings of when nominees were lower court judges, it’s possible to ascertain their ideology and whether it fits with the president’s
What is the current makeup of the Supreme Court
As of 2024, pre-election
Chief Justice Roberts - ‘well qualified’, conservative justice, most likely swing justice
Justice Thomas - ‘qualified’, conservative
Justice Alito - ‘well qualified’, conservative
Justice Sotomayor - ‘well qualified’, liberal justice
Justice Kagan - ‘well qualified’, liberal
Justice Gorsuch - ‘well qualified’, conservative
Justice Kavanuagh - ‘well qualified’, conservative
Justice Barrett - ‘well qualified’, conservative
Justice Jackson - ‘well qualified’, liberal
How do the two wings of the Supreme Court compare?
Ideologically
Conservative justices are more likely to try and achieve rulings that produce a more limited federal government and uphold conservative ideals. They interpret the Constitution more literally.
A liberal justice is more likely to try to achieve rulings that produce greater equality for all and uphld liberal ideals, which may mean a larger federal government. They interpret the Constitution more broadly.
How do the two wings of the Supreme Court compare?
Interpreting the Constitution
A strict constructionist will stick to the wording of the Constitution as the text is written, without interpretation, therefore including protecting state power.
A loose constructionist is more willing to interpret the wording of the Constitution broadly, which might include giving more power to the federal government.
How do the two wings of the Supreme Court compare?
Viewing the Constitution
Justices who abide by originalism, believe that the meaning and interpretation of the Constitution are set by the original principles of the document and should not be subjected to broad interpretation in light of modern advances.
Justices who believe in the living Constitution, think the Constitution is a living, organic and evolutionary document that can be changed through reinterpretation over time. Those who believe in the living constitution are closely linked to loose constructionism.
How do the two wings of the Supreme Court compare?
Performing their job
A justice who follows judicial restraint believes in a limited role for the Supreme Court, deferring to the elected and accountable branches where possible.
A justice who follows judicial activism is likely to use their position on the Court to achieve rulings that give desirable social ends for their ideology, which may overturn previous Court rulings.
How does the length of the process strengthen/weaken the process?
- The length of the process does help to ensure that candidates undergo vetting tand that they’re fully suitable for the post on the Supreme Court. Given the power that judicial review gives to the Court, it’s vital that the justices are well qualified
- Length isn’t a problem if a justice is retiring, however, if they’re impeached or died, the Court is left with 8 justices. In the case of a tie, the ruling from the lower court stands
How does the politicisation of the process strengthen/weaken the process?
Within the system
- The appointments since 2006 have seen party-line votes in the Senate with relatively few defections across the aisle.
- The role of the Senate Judiciary Committee is questionable too; during the hearings for Alito, Sotomayor, Kagan and Gorsuch, the nominees only spoke for a third of the time over 4 days of hearings. The senators spoke for the rest of the time. The aim of the process is to determine suitability, its success can be questioned when the nominee is speaking for such a short time
- Presidents invariably try to pick someone with an ideology that aligns with their own, however not always successful
How does the politicisation of the process strengthen/weaken the process?
The impact of the media and pressure groups
The media circus that surrounds the process has grown in recent years. Protests against Kavanaugh, and coverage they garnered, underline just how political appointment have become.
During Gorsuch’s appointment, donors to the Judicial Crisis Network gave $10mn to support his appointment, having given $7mn to oppose Merrick Garland’s appointment a year earlier.
The ABA has no constitutional standing and its members are unaccountable, yet their rating of a candidate can have a huge effect on each candidate’s chances.
This politicisation can be defended, given the Court is unelected and unaccountable, the only mandate they can claim is that they’ve been chosen by elected representatives from both branches, lending legitimacy.
