How are Supreme Court justices selected and what obstacles may obstruct their confirmation by the senate? Illustrate your answer with examples from court appointments since 1960.
How are Supreme Court justices selected and what obstacles may obstruct their confirmation by the senate? Illustrate your answer with examples from court appointments since 1960.
The Supreme Court of the United States is the highest judicial body and leads the judiciary. It consists of the Chief Justice and eight Justices, who are nominated by the President and confirmed with the advice and consent of the Senate1. Evidence suggests, without hesitation, one of the most important roles of the President is the selection and appointment of the Supreme Court Justices. It is vital that the selection is processed carefully. The President commences the process by forwarding a name of an individual to the Senate, in which the Senate then accept or reject. However the process is not so straightforward. Different obstacles, political and personal, affect the confirmation by the Senate.
This essay will explain, using evidence from appointments since 1960 how Supreme Court Justices are selected. The process in which they endure and the obstacles which obstruct their confirmation by the Senate.
Justices are appointed for life, which leaves the president with no power as to how many appointments they can make to the court. Presidents must wait until a justice either resigns or dies, for there to be a post for a nomination to be made. Some presidents have more opportunities than others; President Carter had not a single opportunity to make an appointment, whereas President George H. Bush made two nominations in his single term. Presidents rightly cherish their opportunities to make nominations to the court. It allows them to place political allies and sympathisers in another branch of the federal government2. What's more Justices viewpoints serve long term in the government, even after the president has left office.
It is ideal for a candidate to have a law degree and to have practised law or to have served as a judge however it is not a necessity. Nevertheless, 'Presidents are encouraged to nominate people with distinguished credentials as practitioners or scholars in law.' 3 Many of the justices considered to be outstanding had no judicial experience prior to their nomination: an example, Chief Justice Warren had been a governor of California and an unsuccessful Republican vice-presidential candidate4. Presidents usually tend to however nominate those with judicial rather than political experience.
Usually, the nominees' political ideologies are compatible with the president, hence why Presidents usually nominate those affiliated with their own party. Of the 109 justices who served on the court up to 2004, only 13 had not been members of the nominating president's party. Even then, such cross-party nominees have usually been known to share the president's ideology5.
All nominees are scrutinised by a President's Committee on Federal Judicial Selection, which was a method of screening for nominees established by President Reagan. This committee analysed all the published writings and statements of those being considered for ...
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Usually, the nominees' political ideologies are compatible with the president, hence why Presidents usually nominate those affiliated with their own party. Of the 109 justices who served on the court up to 2004, only 13 had not been members of the nominating president's party. Even then, such cross-party nominees have usually been known to share the president's ideology5.
All nominees are scrutinised by a President's Committee on Federal Judicial Selection, which was a method of screening for nominees established by President Reagan. This committee analysed all the published writings and statements of those being considered for nomination. Candidates would be interviewed and asked for their views on issues the administration felt strongly about6.
The president might also have a symbolic criterion for nomination, rather than it being solely based on political position. Until early twentieth century, presidents viewed the home state of the nominee as an important criterion. It was a means of making the court desirably. This has changed however in the latter stage of the twentieth century, making ethnic diversity a desired factor, rather than the home state. In 1916, Louis Brandeis became the first Jew to be appointed to the court, and in 1967, Thurgood Marshall became the first black Supreme Court justice.
Religion, Race, and gender have historically been barriers to rather than bases for appointments to the court7, however in more recent time these factors have contributed to a President putting forwards a nominee. On the other hand, religion has political symbolism and through the twentieth century the "Jewish" and "Catholic" seat was created accidently. This was because; Jews and Catholics were most often chosen, due to their similar political and personal ideologies to that of the President. The desired effect for these choices is the hope to reap electoral rewards for these actions by showing symbolic support for the group support8.
The appointment of justices is guided by the Constitution. Article II, Section 2, of the Constitution stipulates that the president "shall nominate, and by and with the advice of the Consent of the Senate, shall appoint" members of the federal judiciary9. Even though the President has sole power over who is nominated to the court, the senate equally have the power to confirm who is appointed to the court. The Senate's power to reject nominee's put forward by the President is a crucial obstacle a President must face.
Presidents have previously for most part of the time been able to control their Supreme Court appointments, but the President does not fully dominate the Senate in Supreme Court Appointments10. Different obstacles created by the Senate obstruct that of a nominee. A factor is politics. Politics is a key role in the appointment of a Justice, as well as an obstacle made by the Senate. The appointment of Cardozo (1932) was in fact secured by politics. Though, politics was actually a defeat over the selection of Paul Freund, though he unquestionably deserved a seat on the bench11. Usually those favoured are those with whom the president had a close political or personal relationship or to gain direct political benefits.12 The Senate tends to vote for nominees who are well qualified and ideologically compatible with their constituents.
The Presidents image is tarnished when the Senate reject those politically close to him. If senators were frequently stimulated by politics, those who are not so attached to the President, would have a better chance of not facing rejection by the Senate. During the 70's the foremost grounds for rejection was opposition to the President. This affected twelve nominees. The Senate also choose to take no action on five, and postponed votes on three13.
As much as sixty percent of nominees are rejected due to the president and the Senate being different parties. Political beliefs are an upmost obstacle when faced with the Senate. Once a Presidential nominee is different to that of the Senate, the interviews become intricate.
As mentioned earlier, the appointments of Justices are a very political matter. Judges almost always are selected on a party basis and usually as a reward for their political services to the party. One commentator called the Judiciary "the place to put political workhorses out to pasture"14. This partisan spirit resulted with 93 percent of Lyndon Johnson's appointments to federal judgeships democrats, whereas 93 percent of Richard Nixon's were Republican15.
Another factor which obstructs a nominee is the timing of appointments, which is also connected to Senates reaction. In eighty-seven instances out of a hundred, the Senate have accepted those nominations made within the first three years of a Presidents term in office, whereas, much less success was found in those nomination made within the last year of a President16. Abe Fortas is evident of this in the year 1968. I17. And was the first rejection which occurred in the year of Presidential elections.
Usually the Senate desire to hold vacancies for the next President, in the hope that he will be of its political persuasion18.But it is neither partisanship as such nor the timing of appointments as such that accounts for most Presidential troubles in Court nominations, but rather the two factors in combination19.
A further factor which affects the confirmation of a Presidential nominee is the threat of senatorial courtesy. Presidents are sometimes compelled to appoint somebody practically demanded by the senate, as in Presidents Grant's "reluctant" nomination of Edwin M. Stanton in 1869 to fill the Pennsylvania seat vacated by Robert C. Grier20. Senatorial courtesy causes Presidents to be cautious, if not compliant, when selecting Supreme Court Justices. It sometimes leads to Presidential courtesy, in which Presidents consider the interests of their party. Overall, 26 of 134 Supreme Court nominations by the President were under conditions that have limited their control over it. However, we can state, that Presidents have, in relation to the Senate, been able to keep control of most of their Supreme Court appointments because the main conditions that inhibit their control have been infrequently present in the history of the Court21.
To conclude, we have discussed different factors which contribute to the nomination of a Justice by the President. It has been mentioned that a legal background is needed, and one could assume that. However evidence, Chief Justice Warren an example, proves it is not a necessity to have practised law or have come from a legal background, nevertheless most nominees acquire this. Political climate and partisanship, is undeniably, a reason which obstruct a confirmation by the majority of the Senate. As we have seen opposing parties of that of President and Senate have caused difficulties in the past. Timing has also been found to be a factor. Example includes the Rejections of Fortas in 1968 where the rejection occurred in a Presidential election year, and Haynsworth (1969) and Carswell (1970) where the election was administrated by an opposition Senate22. Though, Senate confirmations got nastier in the late 1980's. This was sparked by President Reagan's 1987 nomination of Robert Bork. The then Democratic Senate rejected Bork. This unusually public politicising of the confirmation process continued with President Bush's nomination of conservative Clarence Thomas in 199123. Though, on the contrary, the majority of the time confirmation is made with little or no difference of opinion from the Senate. It can be interpreted that different obstacles can add to the rejection made by Senate, nonetheless, it is arguably factors which is construed with the disagreements between the President and the Senate; which sometimes deny the President of a nomination. However, Presidents have usually been masters of the appointment process24.
Word count: 1869
Bibliography
A Brief Introduction to US Politics, Robert J. Mckeever/Philip Davies, Pearson Longman, 2006
Basics of American Politics; Tenth Edition, Gary Wasserman, Longman, 2002
Storm centre: The Supreme Court In American Politics, David M. O'Brien, Norton & Company, 2000
The Supreme Court and the Presidency, Robert Scigliano, The Free Press, 1971
The Western Quarterly, William E Hulbary, Vol 33 No2 (Jun 1980)
http://en.wikipedia.org/wiki/Abe_Fortas
http://en.wikipedia.org/wiki/Defeated_nominees_to_the_U.S._Supreme_Court
http://en.wikipedia.org/wiki/Us_supreme_court pg 1
www.wikipedia.org
2 A Brief Introduction to US Politics, pg. 153
3 The Western Quarterly, pg. 186
4 A Brief Introduction to US Politics, pg. 153
5 Ibid
6 Ibid
7 Storm centre: The Supreme Court In American Politics, pg. 49
8 A Brief Introduction to US Politics, pg. 154
9 Storm centre: The Supreme Court In American Politics, pg. 38
0 The Supreme Court and the Presidency, pg. 96
1 Storm centre: Court In American Politics, pg.38
2 The Western Quarterly, pg. 185-186
3 www.wikipedia.org
4 Basics of American Politics, pg 120
5 Ibid
6 The Supreme Court and the Presidency, pg.98
7 www.wikipedia.org
8The Supreme Court and the Presidency, pg.99
9 The Supreme Court and the Presidency, pg. 98
20 The Supreme Court and the Presidency, pg. 102
21 The Supreme Court and the Presidency, pg. 103
22 The Supreme Court and the Presidency, pg. 104
23 Basics of American Politics, pg. 121
24 The Supreme Court and the Presidency, pg. 105
