Appointment and confirmation to the Supreme Court of the United States

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The appointment and confirmation of Justices to the Supreme Court of the United States involves several steps set forth by the United States Constitution, which have been further refined and developed by decades of tradition. Candidates are nominated by the President of the United States and must face a series of hearings in which both the nominee and other witnesses make statements and answer questions before the Senate Judiciary Committee, which can vote to send the nomination to the full United States Senate. Confirmation by the Senate allows the President to formally appoint the candidate to the court.

Nomination

Article Two of the United States Constitution requires the President of the United States to nominate Supreme Court Justices and, with Senate confirmation, requires Justices to be appointed. This was for the division of power between the President and Senate by the founders, who wrote:

"he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint ... Judges of the supreme Court..."

Upon the election of a new President, incoming White House staff prepare profiles of possible candidates for the Supreme Court, considering not only judges but also politicians and other individuals whom they consider appropriate for the role. Besides considering national figures whose views are well-known, they consider others who are less recognized. They go through published rulings, articles, speeches, and other background material to get an idea of candidates' values and views on constitutional issues. Age, health, race, gender, and likelihood of confirmation are also factored into considerations. Once a Supreme Court vacancy opens, the President discusses the candidates with advisors. Senators also call the President with suggestions. After a first choice is decided, the candidate is contacted and called on by the President to serve on the highest court. Staffers send a vetting form for the candidate to fill out. They visit the candidate to go over tax records and payments to domestic help. Candidates whom the President has never met are interviewed by White House officials before being sent to the White House to be interviewed in person by the President. After making a final decision, the President calls the candidate, who is told to prepare a statement for an appearance in front of the national press for the President's formal announcement.

Most Presidents nominate individuals who broadly share their ideological views.^[1] In many cases, however, a Justice's decisions may be contrary to what the nominating President anticipated. A famous instance was Chief Justice Earl Warren; President Dwight D. Eisenhower expected him to be a conservative judge, but his decisions are arguably among the most liberal in the Court's history. Eisenhower later called the appointment "the biggest damn fool mistake I ever made".^[2] Another Justice whose decisions ran contrary to what was believed to be his ideology was David Souter, who was nominated to the high court in 1990 by President George H. W. Bush. Many pundits and politicians at the time expected Souter to be a conservative; however, after becoming a Justice, his opinions generally fell on the liberal side of the political spectrum.

Because the Constitution does not set any qualifications for service as a Justice, the President may nominate any individual to serve on the Court. However, that person must receive the confirmation of the Senate.

Confirmation

In modern times, the confirmation process has attracted considerable attention from special-interest groups, many of which lobby senators to confirm or to reject a nominee, depending on whether the nominee's track record aligns with the group's views. The Senate Judiciary Committee conducts hearings, questioning nominees to determine their suitability. By convention, nominees avoid revealing too much about their views on the Constitution. At the close of confirmation hearings, the Committee votes on whether the nomination should go to the full Senate with a positive, negative or neutral report.

The Roberts Court prior to Scalia's death, 2010
Top row (left to right):Sonia Sotomayor, Stephen G. Breyer, Samuel A. Alito, and Elena Kagan. Bottom row (left to right): Clarence Thomas, Antonin Scalia, Chief Justice John G. Roberts, Anthony Kennedy, and Ruth Bader Ginsburg

The Committee's practice of personally interviewing nominees is relatively recent, beginning with Harlan Fiske Stone in 1925. Some western senators were concerned with his links to Wall Street and expressed their opposition when Stone was nominated. Stone proposed what was then the novelty of appearing before the Judiciary Committee to answer questions; his testimony helped secure a confirmation vote with very little opposition. The second nominee to appear before the Committee was Felix Frankfurter, who only addressed (at the Committee's request) what he considered to be slanderous allegations against him.^[3] The modern practice of the Committee questioning nominees on their judicial views began with the nomination of John Marshall Harlan II in 1955; the nomination came shortly after the Court handed down the landmark Brown v. Board of Education decision, and several Southern senators attempted to block Harlan's confirmation, hence the decision to testify.^[4][5]

Once the Committee reports out the nomination, the whole Senate considers it. A simple majority vote is required to confirm or to reject a nominee, but a successful filibuster threat could add the requirement of a supermajority of 60 needed in favor of cloture, which would allow debate to end and force a final vote on confirmation. Rejections are relatively uncommon; the Senate has explicitly rejected twelve Supreme Court nominees in its history. The most recent rejection of a nominee by vote of the full Senate came in 1987, when the Senate refused to confirm Robert Bork.

Not everyone nominated by the President has received a floor vote in the Senate. Although Senate rules do not necessarily allow a negative vote in committee to block a Supreme Court nomination, a nominee may be filibustered once debate on the nomination has begun in the full Senate. A filibuster indefinitely prolongs the debate, preventing a final vote on the nominee. While senators may attempt to filibuster a Supreme Court nominee in an attempt to thwart confirmation, no nomination for Associate Justice has ever been filibustered. However, President Lyndon Johnson's nomination of sitting Associate Justice Abe Fortas to succeed Earl Warren as Chief Justice was successfully filibustered in 1968.

It is also possible for the President to withdraw a nominee's name before the actual confirmation vote occurs. This usually happens when the President feels that the nominee has little chance of being confirmed: most recently, President George W. Bush withdrew his nomination of Harriet Miers before Committee hearings had begun, citing concerns about Senate requests during her confirmation process for access to internal Executive Branch documents resulting from her position as White House Counsel. In 1987, President Ronald Reagan withdrew the nomination of Douglas H. Ginsburg because of news reports containing marijuana use allegations.

Before 1981 the approval process of Justices was usually rapid. From the Truman through Nixon administrations, Justices were typically approved within one month. From the Reagan administration to the present, however, the process has taken much longer. According to the Congressional Research Service, the average number of days from nomination to final Senate vote since 1975 is 67 days (2.2 months), while the median is 71 days (or 2.3 months).^[6][7] Some believe this is because Congress sees Justices as playing a more political role than in the past.^[8] The perceived politicization of the process has drawn criticism. For example, columnist George F. Will termed the defeat of Robert Bork's nomination "unjust" and, more generally, that the nomination process does "not delve deeply into the nominee's jurisprudential thinking."^[9] Supreme Court nominations have caused media speculation about whether the judge leans to the left, middle, or right.^[10] One indication of the politicized selection process is how much time each nominee spends being questioned under the glare of media coverage; before 1925, nominees were never questioned;^[11] after 1955, every nominee has been required to appear before the Senate Judiciary Committee and answer questions; and the hours spent being grilled have lengthened from single digits (before 1980) to double digits today.^[12]

Following is a table of the approximate number of hours that media sources estimate were spent on the questioning of Supreme Court nominees:

Sources: New York Times (2005, 2009), MSNBC (2005).^[3][4][12]

Once the Senate confirms the nomination by an affirmative vote, the Secretary of the Senate attests to a resolution of confirmation and transmits it to the White House.^[13] The President then prepares and signs a commission, and causes the Seal of the United States Department of Justice to be affixed to the document before the new Justice can take office.^[14] The date of commission determines a Justice's seniority.^[15] A ceremony is held in which the Justice must take the Constitutional Oath, which is used for every federal and state officeholder below the President, and the Judicial Oath used for federal judges before entering into the execution of their office.

Recess appointments

Potter Stewart, appointed by President Dwight Eisenhower, was the last Supreme Court Justice initially placed on the Court through a recess appointment.

Article II, Section 2 of the U.S. Constitution provides that:

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

Thus, when the Senate is in recess, the President may make a temporary appointment to any office requiring Senate approval, including filling vacancies on the Supreme Court, without the Senate's advice and consent. Such a recess appointee to the Supreme Court holds office only until the end of the next Senate session (always less than two years). To continue to serve thereafter and be compensated for his or her service, the nominee must be formally nominated by the President and confirmed by the Senate. Of the ten Justices who have received recess appointments - two Chief Justices and eight Associate Justices - only Chief Justice John Rutledge was not subsequently confirmed for a regular appointment. No president since Dwight Eisenhower (who made three such appointments) has made a recess appointment to the Supreme Court and the practice has become highly controversial even when applied to lower federal courts. During the 110th Congress, the Democratic leadership of the Senate specifically blocked Republican President George W. Bush from making any recess appointments with the use of pro forma sessions.

In 1960 the Senate passed a resolution stating that it was the sense of the Senate that recess appointments to the Supreme Court should not be made except under unusual circumstances.^[16] Being a resolution, it has no legally binding effect, but was intended as an expression of the position of the Senate and as a guide to executive actions. The resolution passed by a vote of 48 to 37, mainly along party lines.^{[16] [17]}

Following is a list of recess appointments that have been made to the Supreme Court:

Tenure and vacancies

The ability of a president to appoint new justices depends on the occurrence of a vacancy on the Court. The Constitution provides that justices "shall hold their offices during good behavior" (unless appointed during a Senate recess). The term "good behavior" is well understood to mean Justices may serve for the remainder of their lives, although they can voluntarily resign or retire. A Justice can also be removed by Congressional impeachment and conviction. However, only one Justice has been impeached by the House (Samuel Chase, in 1805) and he was acquitted in the Senate. Moves to impeach sitting justices have occurred more recently (for example, William O. Douglas was the subject of hearings twice, once in 1953 and again in 1970), but they have not reached a vote in the House. No mechanism presently exists for removing a Justice who is permanently incapacitated by illness or injury, both unable to resign and unable to resume service.^[18]

Because Justices have indefinite tenure, it is impossible to know when a vacancy will next occur. Sometimes vacancies arise in quick succession, as in the early 1970s when Lewis Franklin Powell, Jr. and William H. Rehnquist were nominated to replace Hugo Black and John Marshall Harlan II, who retired within a week of each other. Sometimes a great length of time passes between nominations such as the eleven years between Stephen Breyer's nomination in 1994 and the departures of Chief Justice Rehnquist and Justice Sandra Day O'Connor (by death and retirement, respectively) in 2005 and 2006.

It is also theoretically possible for Congress to create additional vacancies by expanding the Court itself. The United States Constitution does not specify the size of the Supreme Court, but in Article III it authorizes the Congress to fix the number of justices. The Judiciary Act of 1789 called for the appointment of six justices. As the country grew geographically, Congress increased the number of justices to correspond with the growing number of judicial circuits. In 1807, the court was expanded to seven members, allowing Thomas Jefferson to appoint Thomas Todd as a new Justice. The expansion to nine members in 1837 allowed Andrew Jackson to appoint John Catron, and Martin Van Buren to appoint John McKinley; and the addition of a tenth seat in 1863 allowed Abraham Lincoln to name Stephen Johnson Field to the Court. However, at the request of Chief Justice Salmon P. Chase, Congress passed the Judicial Circuits Act (1866) which provided that the next three justices to retire would not be replaced; thus, the size of the Court should have eventually reached seven by attrition. Consequently, one seat was removed in 1866 and a second in 1867. However, this law did not play out to completion, for in the Judiciary Act of 1869,^[19] also known as the Circuit Judges Act, the number of justices was again set at nine, where it has since remained. The new seat created in 1869 was filled the following year by Ulysses S. Grant's appointment of Joseph P. Bradley - the last justice to be appointed to a newly created seat on the Court.

President Franklin D. Roosevelt attempted to expand the Court in 1937, seeking to appoint an additional justice for each incumbent justice who reached the age of 70 years 6 months and refused retirement; under Roosevelt's proposal, such appointments would continue until the Court reached a maximum size of 15 justices. Ostensibly, the proposal was made to ease the burdens of the docket on the elderly judges, but the President's actual purpose was to pack the Court with justices who would support New Deal policies and legislation.^[20] This plan, usually called the "Court-packing Plan", failed in Congress and proved a political disaster for Roosevelt.^[21] The balance of the Court shifted with the retirement of Willis Van Devanter and the confirmation of Hugo Black in August 1937. By the end of 1941, Roosevelt had appointed seven Supreme Court justices and elevated Harlan Fiske Stone to Chief Justice.^[22]

Despite the variability, nearly all Presidents so far have been able to appoint at least one Justice. The four exceptions are William Henry Harrison, Zachary Taylor, Andrew Johnson, and Jimmy Carter. Harrison died a month after taking office, though his successor (John Tyler) made an appointment during that presidential term. Taylor likewise died early in his presidential term, although his successor (Millard Fillmore) also made a Supreme Court nomination before the end of that term. Johnson was denied the opportunity to appoint a Justice by a contraction in the size of the Supreme Court, which Congress may dictate. Jimmy Carter is the only President who completed at least one full term in office without making a nomination to the Court during his presidency.

References