• Biden orders commission to study supreme court expansion and reform  April 2021

• Case study  Ketanji Brown Jackson 2022 

 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. 

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 A further ten nominations have been withdrawn by the president, the latest being George W. Bush’s withdrawal of the Harriet Miers nomination in 2005.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

Politicisation

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

October 2020 The US Senate  confirmed Judge Amy Coney Barrett to the Supreme Court in a victory for President Donald Trump a week before the presidential election.

 Republicans voted 52-48 to approve the judge, overcoming the unified opposition of Democrats. Her appointment seals for the foreseeable future a 6-3 conservative majority on the top US judicial body.

Democratic presidential candidate Joe Biden called the move rushed and unprecedented.

Senate Democratic leader Chuck Schumer said that by going ahead with the vote so close to the election the Republican majority was "lighting its credibility on fire".

Democrats fear Judge Barrett's confirmation to the lifelong post will favour Republicans in politically sensitive cases that reach America's top court for potentially decades to come.

• 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.

Factors influencing the president's choice of nominee

Judicial ability

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.

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:

Ideology

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.'

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

liberal rulings.

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