The Appointment process for the Supreme Court
April 9th 2021 Joe Biden ordered a study of the appointments process with the possibility of adding seats to the supreme court by creating a bipartisan 36-member commission that will spend the next six months examining the politically incendiary issues of expanding the court and instituting term limits for its justices. The two co-chairs of this Commission are Bob Bauer, Professor of Practice and Distinguished Scholar in Residence at New York University School of Law and a former White House Counsel, as well as Yale Law School Professor Cristina Rodriguez, former Deputy Assistant Attorney General in the Office of Legal Counsel at the U.S. Department of Justice.
The appointment process
A single change to the Supreme Court can affect the nature of the rulings it delivers. In some cases, but certainly not all, replacing just one justice can have a critical impact on the lives of millions of people
A vacancy occurs
Vacancies are caused by the death, resignation or impeachment of a justice. Justices are protected from threat of removal by life tenure.
The president nominates a new Justice
Presidents, with the aid of White House officials, will typically draw up a shortlist of nominees. The nominees' public records and private lives are scrutinised, including FBI reports, before a president settles on a single nominee.
The Senate decides
The Senate Judiciary committee holds hearings, including an interview with the nominee, and makes a recommendation to the full chamber. The nominee completes an extensive 64-page questionnaire, which is considered by the members of the Senate Judiciary Committee before the formal interviews take place. Although the completion of this questionnaire might be thought to be a formality, Harriet Miers' replies were such that they ultimately led to the withdrawal of her nomination. The Senate Judiciary Committee then conducts an interview of the nominee, and anyone else the committee chooses, extending over several days. The witnesses who are called either to support or to oppose the nomination usually attract little attention; the exception was Anita Hill, whose appearance to oppose Clarence Thomas's nomination in 1991 was the object of intense media interest. The American Bar Association issues a report on the extent to which the justice is qualified, which may or may not influence the final decision.Once the interviews are completed, there are two votes. The first involves just the members of the judiciary committee, and the second the whole Senate. The committee's vote is only recommendatory, but it is a good indicator of the likely outcome in the second vote; Robert Bork's nomination in 1987 was defeated 9-5 in committee, and Clarence Thomas's in 1991 was tied 7-7.
The full Senate votes with over 50 per cent required for the nominee to be appointed.
Nominations to the Supreme Court are not always successful.
The Senate has rejected 12 nominations since 1789 . A further ten nominations have been withdrawn by the president, the latest being George W. Bush’s withdrawal of the Harriet Miers nomination in 2005. The Senate took no action on five nominees — the latest being on Obama’s nomination of Merrick Garland in 2016.
Here are some examples of failed nominations.
Robert Bork 1987 was nominated by Reagan and was the last nominee to fail a vote in the Senate, 42-58.Bork’s critics regarded him as being both too conservative and too closely associated with former president Richard Nixon. Bork had played a role in the Watergate affair when, at the orders of President Nixon, he had fired the independent prosecutor, Archibald Cox, who was investigating the Watergate cover-up.
· Harriet Miers 2005 was nominated by George W. Bush. Her moderate conservative nature and lack of judicial experience were both used as criticisms of her nomination. With a Republican Senate majority, Bush could have proposed a more conservative justice. Democrats chose to attack Miers, focusing on her lack of experience and connections to the president. This could be seen as irrational partisanship: after Miers withdrew, Bush nominated a far more conservative Justice Alito — a political own goal for the Democrats.
· Merrick Garland 2016 was nominated by Obama to replace conservative Justice Scalia. The Senate blocked any nomination by refusing to hold a vote. This can be seen as extreme partisanship: the Senate did not fulfil its constitutional duty to advise and consent. This is of major importance because it allowed President Trump to fill the vacancy instead and prevented the court from switching to a 5-4 liberal majority.
Criticisms of the appointment process
As the conservative/liberal divide on the court has deepened, and Congress itself has become more polarised, members of the party opposed to the president will try to bring about the rejection of his nominees, irrespective of their merits. The nomination process has ceased to resemble an objective enquiry; following the confirmation of Elena Kagan, the Los Angeles Times wrote that nominees '...are now being treated like contentious pieces of legislation' and quoted a source that 'the era of clearly qualified nominees getting broad bipartisan support in the Senate will officially end with this vote'. Kagan was the third consecutive nominee to receive under 70 votes in support; in contrast, Antonin Scalia was confirmed in 1986 with 98 votes in support and none against, Anthony Kennedy in 1988 with 97 votes for and none against, Ruth Ginsburg in 1993 with 96 votes in support and three against, and Stephen Breyer in 1994 with 87 votes for and nine against.
Accompanying the increased partisanship in the Senate has been an increase in the activities of interest groups. The rejection of the Robert Bork nomination was a success for the liberal groups that campaigned against him (the 'People for the American way' ad by Gregory Peck can be watched on YouTube). The scale and vigour of the campaign caught conservative groups unawares, but since then both liberal and conservative groups have mounted increasingly expensive campaigns for and against nominees, running TV ads and mobilising supporters to put pressure on their senators. The success of the Bork campaign has not yet been reproduced, however, and even a group as powerful as the NRA, which opposed both the Sotomayor and Kagan nominations, may gain little traction against a well-qualified candidate.
The politicisation of the process reached a new level in 2016 after the death of Justice Scalia. The Republican-controlled Senate refused to conduct hearing into Obama's nominee, Merrick Garland. Although they argued a president in his final year should not be able to make a decision which would have such a lasting effect, it was unprecedented and highly political. In 2017 President Trump nominated Neil Gorsuch
The Meaninglessness of the hearings.
The Bork nomination was significant in another way. In his answers to the committee, Bork was, in hindsight, unnecessarily expansive (at least from his own point of view) and told the members, for example, that the decisions in Roe v Wade 'contain almost no legal reasoning', supplying his opponents with his own ammunition.
Since then, nominees have become much more guarded in their responses, to the extent that, some time before her own nomination, Elena Kagan characterised the proceedings as 'a vapid and hollow charade'. Nominees will frequently decline to answer questions on legal issues, on the grounds that they may be the subject of future cases before the court, and only advance opinions which are completely uncontroversial, leaving senators and the wider audience with only a hazy sense of how they would perform if confirmed.
Another related issue is justices' almost complete lack of accountability once installed on the court. This has led some senators to discount the little that nominees do say; some of those who heard John Roberts state that it is '...a jolt to the legal system when you overrule a precedent' felt aggrieved when the court he presides over administered just such a jolt in Citizens United v FEC
How successful have presidents been in creating a court which reflects their views?
There is no guarantee that a nominee will conform to their pre-confirmation label once installed on the court. David Souter, nominated by the first President Bush on the basis that he was a 'home run' for conservatives, became a reliable member of the liberal bloc
Supreme Court justices are not politically neutral in the UK sense. In the UK Judges are appointed by an independent Appointments Commission. Some Supreme Court Justices, such as William Rehnquist, were active in party politics prior to their nomination, and others, such as Elena Kagan, have at least served in a presidential administration. Those who have served as judges prior to nomination such as Samuel Alito usually have a track record of judgments which identify them as conservative or liberal on important constitutional issues. Given that the general direction of their political sympathies in significant areas is established, it is unsurprising that presidents nominate potential justices whose views are known to correspond to their own. President Bush will have been aware of the reputation of his two nominees, Samuel Alito and John Roberts, as conservatives, and in judgments such as Carhart, Heller and Citizens United, they have lived up to it. There are clearly two ideological blocks on the Court with four conservative judges appointed by Republican presidents and four liberals appointed by Democrat presidents.
Supreme Court justices will sometimes only partly reflect the political views of the president who nominated them
• presidents have to take a variety of factors into account when nominating a justice, not only ideology; in particular, they need to take account of the acceptability of any potential nominee to the Senate. Obama chose a moderate Merrick Garland with the hope of winning some Republican support.
• justices and presidents may be broadly in sympathy but are unlikely to share identical views on every issue; even justices as closely aligned as Antonin Scalia and Clarence Thomas do not always vote the same way. 2015 Walker v Texas Division of the Sons of Confederate Veterans - Thomas voted with the liberals. In NFIB v Sibelius Roberts enraged conservatives by voting to uphold the constitutionality of Obamacare. This was seen as evidence of his pragmatic conservatism.
• once they are on the court, justices are free agents and may leave their pre-confirmation reputation behind; David Souter, the so-called ‘home run’ for conservatives, is the best-known recent example. Kennedy's position as swing judge was not intended by Republican Ronald Reagan who appointed him.
Judicial philosophy is not the same as political beliefs and Justices who adopt Judicial Restraint will seek to avoid 'poitical thickets' This is why accusations of Conservative activism are rarer than liberal activism. Judges also follow 'Stare Decisis' and avoid overturning past precedents- which is why Roe v Wade has survived on a court with 5 Republican nominated justices. 2020 Roberts and Gorsuch (both considered conservative) voted to extend the civil right Act to the protection of the LGBT community LGBT Rights case (Bostock v Clayton County)
2020 Roberts voted with the liberal justices in DHS (Dept of Homeland Security) v Regents of University of California to up hold DACA (deferred Action for Childhood Arrivals) which allows illegal immigrants with children to remain in the USA.
Trump felt let down by the Supreme Court which did not take up his appeals against the outcome of the election.
Roberts (appointed by Bush) Gorsuch (appointed by Trump)
Is the process of appointing justices effective?
Yes: because nominations are carefully scrutinised by the Senate Judiciary committee and rely on a full Senate vote, they are vetted for their ability to operate as a justice on the highest court in the United States. Justices without significant legal experience are unlikely to be successful. Since the start of the Clinton presidency seven of the nine nominations to the Supreme Court worked in the US circuit courts. Harriet Miers, nominated by President George W. Bush in 2005, withdrew her nomination after heavy Senate opposition on the basis of her lack of experience. Critics of Trump's appointment of Amy Coney Barrett had to acknowledge that she was well qualified.
The intensive nomination also ensures that there are no historical concerns or character flaws. Sonia Sotomayor was questioned by some members of the Senate Judiciary committee who were concerned about apparent racial and gender bias, especially her publicly expressed view that a 'wise Latina' might make a better judge than a white male. Reagan also experienced failure with the nomination of Douglas Ginsburg who was withdrawn after evidence emerged of previous marijuana use.
However: the president's own policy preferences influence the decision and open the nominee to suspicion that they are not neutral. This makes the Supreme Court a highly political body; justices are even described as liberal or conservative. This threatens the neutrality of the Court and its rulings. There are constant criticisms that a justice has not based a decision on the Constitution. This undermines the Court's authority, with the risk that rulings are not respected.
However serious character flaws were alleged agaist Justice Clarence Thomas and Bret Kavanaugh - they were non the less confirmed
Yes: The life appointment and the use of separation of powers and checks and balances, after careful scrutiny, prevent a justice feeling under obligation to any one political institution or public opinion.
However, the Senate appears to be acting in a partisan manner, supporting or opposing the nomination according to which president made it. The 1980s appointments of Kennedy and Scalia passed with huge bipartisan support and no votes against them. Trump may well have seen his appointments as a kind of insurance policy.
Ronald Reagan nominated the controversial conservative justice Robert Bork. The failed nomination was subject to a negative ad campaign which resulted in him losing the floor vote in the Senate.
Factors influencing the president's choice of nominee
You might hope that the foremost consideration for presidents would be picking from a pool of qualified people with legal expertise and while the president will look for like minded nominees the vast majority of recent justices worked in the circuit courts, one level below the Supreme Court. However, recent presidents have sought to fill the federal courts with like minded judges.
How Trump took over America's courts
Although a nominee need never have been a judge, they need to be able to demonstrate that they have a level of judicial credibility. Two recent examples illustrate the point:
· Elena Kagan, who was appointed to the court in 2010, had never served as a judge but had had a distinguished academic legal career, sufficient to have been already nominated (unsuccessfully, as the congressional term expired before she could be confirmed) to the DC circuit appeals court in 1999.In his opening remarks to the Senate judiciary committee hearings on Kagan, Senator Jeff Sessions expressed concern at her background in legal academia rather than judicial practice: 'Ms. Kagan has less real legal experience of any nominee in at least 50 years, and it is not just that the nominee has not been a judge. She has barely practiced law and not with the intensity and duration from which I think real legal understanding occurs.'
• Harriet Miers, nominated by the second President Bush in 2005, had also never served as a judge but, in contrast, had no academic record, and did not impress members of the Senate with her grasp of constitutional law. She withdrew from the process amid a flurry of unfavourable media coverage.
Presidents are undoubtedly influenced by the way in which they have interpreted the law or the Constitution in the past. Republicans choose conservatives and Democrats choose liberals.
All nominees have a record which identifies them as conservative or liberal acquired through decisions made in lower courts or through their writings. It is accepted as legitimate that a president will seek to nominate a justice with a judicial outlook similar to his own.
Obama, appointing Sotomayor, said that judicial experience alone was insufficient. He said: `Experience being tested by obstacles and barriers, by hardship and misfortune, experience insisting, persisting, and ultimately, overcoming those barriers. It is experience that can give a person a common touch and a sense of compassion, an understanding of how the world works and how ordinary people live.'
Jacksonville University in Florida shortly before the 2016 election, while a law professor at the University of Notre Dame. Barrett was asked about ways a hypothetical future Supreme Court might allow states to pass more restrictions on abortion.
The Supreme Court in 2020 has three women currently sitting; only four women have served in total in its entire history. The court has one black (two total) and one Hispanic justice. President George W. Bush nominated Clarence Thomas, the second black justice on the Court, in 1990 (although Bush was also replacing the first black justice, Thurgood Marshall). Two considerations will influence the president: first, as an unelected body, the court needs to be seen to be representative of America to maintain its legitimacy and, second, the president may want to send a signal of support to particular groups. Both could be seen at work in President Obama's nomination to the court of Sonia Sotomayor.
Is it clever politics
Presidents will also have to consider the immediate political environment-in particular the likely response of the Senate. A president facing a hostile majority in the Senate might make a more moderate choice to limit opposition. Conversely, a president may choose a justice to maintain support from key voting groups. After choosing Sotomayor, Obama was able to use this to increase his support among Hispanic voters between 2008 and 2012. Trump's appointments of Gorsuch, Kavanaugh and Barrett have all been conservative but also well qualified.
The composition and ideological balance of the Court
Periods in the Court's history are often defined by the name of the chief justice of the time. For example, the Burger Court is the name given to the court while Warren Burger acted as the Chief
Justice between 1969 and 1986. Some courts are known for a certain focus, action or approach. The chief justice does not have any significant power compared to each of the other justices.
The Warren Court 1953-69
Known for hearing a series of civil rights cases delivering liberal opinions. Cases such as Brown v Board and
Miranda v Arizona 1966 are seen as landmark
Described as activist by those who claim it overturned established practices to achieve its own political goals.
The Rehnquist Court 1986-2005Seen as a more restrained rather than active court. It heard fewer cases, dealing with fewer than 100 per year, reducing its political impact. Associated with a state rights agenda with several rulings that protected the power of the states, halting decades of expansion of federal power.
The Roberts Court was a finely divided court, with a 5-4 conservative majority, but with the appointment of Amy Coney Barrett It has a conservative majority.
Justice Kennedy acted as a swing justice who is typically conservative but sometimes joins the liberal group. He was seen as the Court's deciding voice. Chief Justice Roberts argued for the importance of consensus on the Court in order to give clarity as well as guidance to lower courts. He pushed for more unanimity and until 2014 two thirds of the court's decisions were unanimous. Case study the Roberts Court