Podcast # 9: How a Supreme Court Justice is appointed?

The Judicial Branch interprets the laws. Think of the Supreme Court as the referee in a sporting event. On the sidelines, but they can have a significant impact on the rights of the people.

The Supreme Court is the highest Court in the United States. The Supreme Court was established in Article 3 of the Constitution but very little was laid by the Framers of the constitution. Unlike the other two branches, there was no description of what its role or powers were, or any specific requirements for the individuals appointed. It wasn’t until the passing of the Judiciary Act of 1789, that the structure of the court was laid out. At its creation, the supreme court had 6 Justices. 1 chief justice and 5 Associate Justices. Congress has the right to change the number of justices on the supreme court. The President nominates an individual and the Senate approves. They serve for terms that are for life. Until they retire, resign or die. The Constitution uses the phrase, Good Behavior. A Justice can be impeached and removed from office. Over the years the numbers of justices have changed. They have been as low as 5 and as high as 10 possible justices. In 1869, the number of members was put at 9 and it has remained there ever since. President Franklin Roosevelt wanted to add 6 more to a total of 15, but that never happened.

At its creation, there was no separate building for the court. The Supreme Court was housed in the capital building. It wasn’t until Chief Justice William H. Taft (former president of the US) convinced Congress to authorize a separate structure. The current Supreme Court building was completed in 1935.

One of the most important and influential roles of the president is that he or she can nominate an individual to the supreme court. A president will often choose an individual who holds the same political ideologies that they do to ensure that the policies they want put in place, will be done long after their term as president has ended. The more liberal a president, the more liberal judge and the more conservative president, the more conservative judge. This isn’t always a guarantee. For example, when President Eisenhower nominated Earl Warren for chief justice of the supreme court, being a conservative president he picked a conservative justice (or so he thought). Earl Warren ended up being one of the most liberal justices to serve on the bench and President Eisenhower stated that appointing Earl Warren to the Supreme Court was one of the greatest regrets.

The process:

The president also nominates judges to the lower courts. This is often done at the recommendation of Senators from the state where the vacancy occurs. For Supreme Court Justice nominations, lists are put together of potential nominees. They are researched extensively.

Unlike requirements to serve in the other two branches of the federal government, there is no age requirement. The youngest justice was 44 and the oldest appointed was 68. For the majority of the court’s history the supreme court consisted of white men. In 1967, Thurgood Marshall was the first African American appointed to The Supreme Court and in 1981, Sandra Day O’Connor was the first woman. It would take until 2009 for the first Hispanic justice, Sonia Sotomayor to be appointed to the court. Ruth Bader Ginsburg, the second female supreme court justice was once famously asked how

many female justices would be enough on the supreme court and her answer was 9 because for years there had been 9 men and no one thought anything of it. Today, when a seat becomes available on The Supreme Court, gender, race and political views of the potential Supreme Court nominees are of the utmost importance. With the death of Justice Ginsberg, the Supreme Court vacancy if filled by President Trump (which would be his third appointment, could give the court conservative majority for a generation. The hope for any justice, regardless of who appoints them and what their own political beliefs are will be just, fair and uphold the constitution for all people.

Just because the president nominates an individual to the Supreme Court, doesn’t automatically mean they are on the court. Presidential nominees have been voted down and the senate in 2016 refused to hold a hearing for a nominee. There are a number of key players, and the long road to approval by the senate begins (checks and balances).

The President already has extensive information about the possible candidates prior to announcing the nominee. The nominee will then fill out a questionnaire for The Senate Judiciary Committee. If you go to judiciary.senate.gov there is a wealth of information. I was able to download a copy of the questionnaire given to the nominees. The one I downloaded was 142 pages. The types of information asked Personal information – name, address education, employment, all sources of income, estimated net worth, any prior military service, honors and awards, bar associations, memberships, copies of any published writings or speeches, lists of any public speeches made, copies of texts or talking notes (listed a toast given in the 90s) were any of the speeches paid speaking engagements, legal career, any clients they may have had, copies of rulings and opinions of the court, history of any recusals – why or why they didn’t recuse themselves.

The Nominee will have private interviews with senators, the Judiciary Committee does a background check, the FBI does a background check, then there are public, televised hearings.

The purpose is it to try to know as much information as possible. Senators on both sides of the aisle will ask questions about key supreme court cases to see how the nominee may vote on those types of cases. The Senate Judiciary Committee will then vote to send it to the Senate Floor for full vote.

Constitutionally, there is no minimum requirement to the length of a hearing to confirm a nominee to The Supreme Court. What we do have are the precedents of the hearings of previous Supreme Court Nominees. It takes a few weeks to complete a full background check. The average time for senate approval is around 71 days. Some past hearings taking less time and some taking more. Clarence Thomas’ hearings took over 100 days, largely due to the sexual harassment allegations made by Anita Hill. The question comes down to 1. Does the sitting President have a majority in the Senate? In this most recent case with President Trump, he does. Which then gives him a Republican majority in The Senate Judiciary Committee. The nominee only needs 50 votes to confirm and VP Pence can make a tie breaking vote. 2. Will Senate Republicans roll the dice on waiting until after election day? Could they lose the majority in the senate? 3. Is the current President a lame duck? For the case of President Trump, the answer is unknown. If he loses the election, he will be. If he is re-elected, he has another 4 years as President.

In the case of President Obama in 2016, when Justice Antonin Scalia died, he nominated Merrick Garland. President Obama was considered a lame duck president. He was in the final year of his second term. He did not have the majority in the senate. The Republican majority in the senate led by Mitch McConnell blockaded the appointment. No hearings were held. Waiting until after the election could be a motivating factor to get people to the polls. If Republicans maintain control of the Senate and Trump is re-elected, they will have secured a conservative majority on the court. If Trump is re-elected but loses the senate majority, he will still get a nominee through, might not be his first choice, might not be an easy confirmation, but he will fill the vacancy. If democratic voters come out to the polls and elect Joe Biden as President, the senate could potentially still vote to approve Trump’s nominee even though he would be a lame duck president. They still would have the majority until Jan. 20th when the new President would be elected.

There are issues to consider in leaving a vacancy on the Supreme Court. 4-4 decisions mean that whatever the lower court’s opinion was, stands. It could also lead to the Supreme Court putting off hearing certain cases until the vacancy is filled.

Why is it such a political battle when a Supreme Court Vacancy opens?

The Supreme Court decides moral issues of significant proportions. Things like Abortion, freedom of speech, same sex marriage, health care, the role that religious beliefs can have on access to health care, campaign financing like Citizen’s United. These are all issues which democrats and republicans typically sit on opposite sides of the fence. The Supreme Court receives anywhere from 7000 to 8000 requests to hear cases. In a year, they typically hear less than 100.

When a Justice is sworn into office, they take two oaths. The first oath is that they will support and defend the constitution.

that I will support and defend the Constitution of the United States against all enemies, foreign and domestic;

The second oath:

“I, ___ ___, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as ___ under the Constitution and laws of the United States. So help me God.”

I saw an interview with Associate Justice Steven Breyer on The Colbert show. During their exchange, Colbert asked Stephen Breyer how are the members of the supreme court able to get the job done even though they have different political ideologies. Breyer gave a really wonderful answer. He stated that when the 9 justices are in their conference room, discussing the case and debating with each other he had never heard a voice raised or an insulting remark. The discussion is always serious and professional and never personal.

One of the biggest impacts the President can have on American Society is to have the opportunity to appoint an individual to The Supreme Court. Whoever that individual is must defend the Constitution and impartially hear each and every case. Each new justice must walk into their new chambers and feel significantly inadequate. Knowing they have big shoes to fill and that the Millions of people living in the United States will be directly affected by their decisions.

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