An overview of the Supreme Court appointment process

The expectations of Supreme Court Justices are high. They are the final arbiters in interpreting the primary document of the nation- the United States Constitution. Justices are expected to decide critical cases without regard to political leanings or societal pressures. Ironically, the process for selecting these justices is inherently political. Nomination When a vacancy occurs on the 9-person Supreme Court, the President selects a nominee.

Traditionally, the nominee has been a judge on a lower federal court, but there is no mandate that the nominee be a sitting judge or even a practicing lawyer. The nominee is then presented for Senate confirmation. A majority vote is needed for the nominee to join the court. As with most Senate issues, the Vice President can cast the deciding vote in the case of a tie. Once seated on the Court, the Justices enjoy a lifetime appointment, except for resignation or other extraordinary circumstances.

The lifetime appointment is intended to insulate the Justice from the influences of politics and the burden of running for re-election. The President of the United States is granted the power to select Supreme Court justices. According to Article 2 Section 2 of the United States Constitution, the President: “by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public ministers and Consuls, [and] Judges of the Supreme Court (Georgetown University Law Library, 2008).

The same provision of the Constitution provides the Senate the opportunity to review and confirm or deny the President’s nominees. Debate and Confirmation The term “advice and consent” has been the subject of much legal and philosophical debate. Some see this phrase in constructionist terms. They believe that the role of the Senate is simply to evaluate judicial qualifications and make judgements about the judicial temperament of the nominee. Others question and vote on the nominee in a more political framework.

The phrase “litmus test” is often used as Senators try to expose the political leanings of the nominee (Schwartz, 1993). Typically, the President will gauge support among Senators before publicly selecting a nominee. Once the name of a nominee is selected, it is sent to the Senate Judiciary Committee. That committee gathers information on the nominee and holds hearings. Witnesses on both sides are heard before the committee votes. A recommendation is then sent to the full Senate, which debates the issue and holds the final vote.

A cloture vote of at least sixty Senators can end the debate Historically, a high percentage of the President’s nominees have been approved. Only thirty nominees have been rejected since 1789 (Zelden, 2007). Using delay tactics or voting against a nominee could mean trouble for a Senator running for re-election. When a President is popular, the public often approves of his nominees. Senators who vote against the nominee risk getting tagged with the label “obstructionist” by his or her political opponents.