Critically analyse the appointment and confirmation process for nominees in the US Supreme Court

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Neema Daniel                                                                                                                                                      

Critically analyse the appointment and confirmation process for nominees in the US Supreme Court

The highest court of appeal of the US judicial branch consists of the chief justice, currently Justice Roberts, and eight justices, who are all nominated by the President with the advice and consent of the Senate, a role conferred by the Constitution. Justices are appointed for life which leaves the president with no power as to how many appointments they can make to the court. The appointment and confirmation process has been criticised for being heavily politicised in that nominees are chosen not on their merit but on their ideological philosophy. Thus the appointments and confirmation process have been criticised as being a political battleground between the two major parties. Whilst the process encourages the exercise of checks and balances, in that oversight is performed by the senate to confirm a nominee, surely this power can be abused? Robert Bork would certainly contend so. Politicisation is not unexpected as US Supreme Court appointment and confirmation process does not start from an independent body like the Judicial Appointments Commission in the UK. Thus the appointment and confirmation system does have significant disadvantages, but there are advantages; presidents cannot subordinate those they appoint and in comparison to the UK Supreme Court, the US Supreme Court is far more diverse in both gender and ethnicity.

The appointments process of Supreme Court justices begins with a vacancy occurring through voluntary retirement, death or impeachment. When a vacancy emerges the president instigates a search for possible nominees with the advice of advocacy groups and bar associations, like the ABA. He then interviews short listed candidates. The president will then announce the nominee and finally the Senate will conduct committee hearings and the process ends on the floor of the Senate with a vote.

Nominating a Supreme Court judge is one of the most important decisions a president will make in office. Not only, if successful, will it determine the philosophy of the highest court of appeal, but it may ultimately change the nature of judicial review. Furthermore because of a Supreme Court Justice having life tenure once in office, this will mean that judges will remain on the bench outliving the president that appointed them. Antonin Scalia was appointed by Republican President Reagan in 1986 after Justice William Rehnquist vacated his seat, having been moved to the position of Chief Justice. A Chief Justice who commands the bench may be an echo chamber of past presidents. However modern day criticism of the appointment and confirmation process centres on accusations of politicisation. “Presidents politicise the process as they chosen a justice whose political and judicial philosophy reflects their own. Republican presidents want to pick a justice who is conservative and takes a strict and literal view of the constitution. Democrat presidents, on the other hand, want to choose a justice who takes a looser, adaptive view of the Constitution” . Reagan wanted to challenge the Senate Democrats by attempting to shift the court to the right. President Roosevelt too sought to manipulate the Supreme Court by appointing six Democrat judges after his 1936 election, to ensure that the court legitimised the New Deal programme, contrary to previous rulings which ruled that the NRA was unconstitutional as it did not have the right to impose rules of fair competition. It appears that “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 government”. This trait is evident it federal courts too as 93% of Lyndon Johnsons appointments to federal judgeships were Democrats, where was 93% of Richard Nixon’s were Republican. An indicator of presidents seeking to find ideological or partisan compatibility is through the use of the ‘litmus tests’ often scrutinising their previous judgements on controversial cases, such as those regarding affirmative action, capital punishment or abortion.

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Yet presidents, who select nominees, must be wary of how their own party will tolerate the decision. For examples the nomination for Harriet Miers was withdrawn by George Bush after many members expressed hostility from members of the president’s own party. Furthermore politicisation on the president’s behalf does not oblige the inaugurated justice to defer to their selector. “Justice Souter, in almost two decades on the Supreme Court, made decisions which would find little favour with President Bush. He proved to be one of the most consistently liberal members of the Court”. Chief Justice Warren too was a moderate ...

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