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

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 For examples the nomination for Harriet Miers was withdrawn by George Bush after many members expressed hostility from members of the president’s own party.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 conservative like Eisenhower but took the Court in a liberal activist direction. A notable defiance in Bush’s presidency was a Supreme Court decision in 2008 in the case Boumediene v. Bush ruling in 5-4 decision that Guantanamo Bay detainees had a constitutional right to habeas corpus. Justice Souter concurred with Anthony Kennedy, stating that “there must be constitutionally based jurisdiction or none at all." Thus Presidents cannot subordinate the justices, for that would contravene the rule of law (a fundamental requirement for the judiciary to be independent from executive control). In its methods politicisation is rife in the appointments and confirmation process, but in its results this trait is not definite, as justices may break the partisan ties, they may have had with their patron in Washington. Although the nomination process contrasts with the UK as the selector of UK Supreme Court justices is conducted by an independent body called the Judicial Appointments Commission (instituted by the Constitutional Reform Act by Labour in 2005) this does not necessarily mean that US Supreme Court justices are more partisan judges. Although arguably the JAC “brought greater transparency to the process of judicial appointments and served to address the concerns that the system in place previously had been open to political bias.”

The Appointment of justices is guided by the constitution: Article II section two of the constitution stipulates that the president “shall nominate, and by and with the advice and consent of the Senate, shall appoint” members of the federal judiciary.  The senate who have the power of confirm appointments have been accused of politicising the confirmation process too. It appears that the Senate’s criteria for successful candidates are not judicial experience or scholastic expertise but ideological founding. Robert Bork in 1987, a distinguished jurist, was rejected because of lacking in ‘judicial temperament’ because he was a strict contructionalist. Similarly the appointment of Cardazo (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 bench. Does ones judicial capacity disqualify the role of Supreme Court Justice than judicial ideology? Whilst the appointments and confirmation process may encourage a system of checks and balances, the Senate have abused their power of oversight, in that they don’t test how a nominees merit but their philosophical perspective. And the Senate even perform their own ‘litmus test’ to see whether a nominee will be a siege engine or a buttress to the administration. For example in a Senate Judiciary Committee, the chair Arland Spector immediately asked nominee Samuel Alito his view on a statement concerning whether the constitution protects the right to abortion . These partisan criteria the Senate have for a nominee is best illustrated by the voting habits in the last 30 years. There has been a rise in the number of polarized votes: Clarence Thomas 52-48 (1991), Samuel Alito 58-42 (2006), Sonia Sotomayor 68-31 (2009) Elena Kagan 63-37 (2010). Not a single Democrat in the Senate Judiciary Committee voted to recommend Alito’s confirmation, and on the Senate floor only four democrats voted to confirm him. As a Washington Post editorial best concludes “Supreme Court have never been free of politics”. A Republican controlled Senate would endeavour to not select a candidate with a philosophy of judicial activism, similarly a Democrat controlled Senate may not select a candidate with a philosophy of judicial restraint. Thus in given instances the senate manipulate the appointments and confirmation process for their own gain, politicisation ensues as a result.

The senate have also been criticised for focusing on opportunities to attack and embarrass the nominee. “They are more interested with scandal, innuendo and gossip than competence”. This occurred during Clarence Thomas’ hearings. In this instance the Senate could have justifiably questioned Thomas’ nomination on his lacklustre qualifications, considering the American Bar Association credited him as ‘qualified’, as opposed to the conventional labelling ‘highly qualified’. Whether their labelling was determined by the colour of his skin is a different matter. Instead they chose to concentrate on mendacious accusations of sexual harassment made by Anita Hill. Clarence Thomas described the process as a ‘high tech lynching’ and continued “I have heard enough lies. Today is not a day that in my opinion is not high among the days of our country. This is a travesty. You spent the entire day destroying what it has taken me forty three years to build and YOU are providing a forum for that”. This is a familiar trait of oversight. Bill Clinton‘s impeachment trials were designed to embarrass the president and Democrat congressional hearings appeared to try and make President Bush look foolish. Clarence Thomas’ appearance before the Committee could have been prevented through a private investigation. Senate committee hearings for confirmations can be hijacked and can be characterised as what Calvin Mackenzie describes as ‘invasive scrutiny and cruel and punishing publicity’.  It appears that senate committees can be subverted to political battlegrounds and forums of slander and scandal.

The media too have been criticised for conducting ‘feeding frenzy’s’ often concerned with matters of little relevance to the nominee’s judicial qualifications. Blowing the allegations made by Anita Hill out of proportions. The media chosen to compete over who should come up with the most lurid allegations and the most tasteless details. As Edward Lazarus remarks in 1999 that the Thomas affair was an opportunity for “political control of the court, to be waged by any means necessary”. This can be said to politicise as one of the media’s objective is to change people’s opinions. If successful the media’s views may be potentially carried by the people and as a result the president or the senate may be compelled to act in public favour, assuming they have a loud enough voice.  Advocacy groups politicise the process too. The National Abortion Rights Action League and the National Organization for Women sought to challenge Bork’s nomination. Even a television advertising campaign was mounted against his nomination, costing around $15 million. Furthermore In 2006 the Washington Post reported that over a 3 month period of the nomination debate concerning Samuel Alito “hundreds of advocacy groups on both sides of the battle aggressively competed to shape public opinion, spending more than $2million in advertising and blanketing the country with millions of emails”. Whilst the process of appointment and confirmation is transparent, the subversion of this transparency by the media and pressure groups may burden those with the sovereignty of appointing and confirming Supreme Court justices. Yes the burdening does not necessarily oblige decisions to those better financed and articulated groups, but does would those in authority, especially if elected, be willing to sacrifice electoral support?

However the US Supreme Court being very diverse a desirable result of the process. In 1916, Louis Brande became the first Jew to be appointed to the Court and in 1967 Thurgood Marhsall became the first Black Supreme Court Justice. Furthermore currently three women sit on the Supreme Court bench. This is revelatory considering “Religion, Race and Gender have historically been barriers to rather than bases for appointments to the court. This hugely contrasts to the UK Supreme Court who are said to be representative of an elitist Etonian minority in Britain. At least the US Supreme court may triumphantly declare how ethnically diverse it is, which may influence how representative the court is in conveying an appreciation of the law. However one has to determine how genuine these appointments are. Is ethnicity being considered for the sake of ethnicity or for politics? Some contend that the “Jewish and Catholic seat was created accidentally. This was because Jews and Catholics were most often chosen, due to their similar political were most chosen, due to their similar political and personal ideologies to that of the president. The desire effect of these choices is the hope to reap electoral rewards for these actions by showing symbolic support for the group support”. This seems to parallel with Sonia Sotomayor’s nomination as it believed the reason for moderately high support from Republicans was that they did not want to be seen as Anti-Hispanic. Yet do the motives for nomination outweigh the fact that the US Supreme Court is one of the most diverse of its kind.

In conclusion while there are significant disadvantages with the process, the Senate’s criteria for an ideologically compatible nominee, the role of the media and pressure groups in politicising the affair, there are advantages. For example the President may have politicised the nominations by attempting to choose justices who share their political views and philosophy, however politicising the process does not necessarily guarantee how judges will perform. Sonia Sotomayor stated that she “wouldn’t approach the issue of judging the way the President does”. In other words the inaugurated justices are not obliged to perform the president’s, the Senates or the media’s expectations. The Souter effect best demonstrates this. Additionally the process results in a more diverse Supreme Court, as Presidents choose nominees of a different ethnic groups to not only legitimise their decisions but also to gain electoral support among minority groups.

Bibliography:

• Anthony Bennett US politics 4th edition
• John D Clare History AQA B Modern World History
• Washington Post
• A Brief Introduction to US Politics
• Storm Centre
• Tom Bingham Rule of Law
• Wikipedia
• McKeever
• YouTube

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