Nomination Process For Federal Judges/Supreme Court Justices: The President’s Role

The manner in which federal judges are chosen, the terms for which they serve, and even the salaries they are paid are vital parts of the Con­stitution's design of an independent judicial branch. The Constitution declares that:

"the President shall nominate, and by and with the Advice and Consent

of the Senate, shall appoint ... Judges of the

supreme Court ...”

                                                                (Article II, Section II, Clause 2)

 

Congress has provided the same procedure for the selection of all other federal judges.

The Senate has a major part in the selection of all federal judges, and in particular those who sit in the nation's 94 district courts. The consti­tutional provision just cited says, in effect, that the President is free to name to the federal bench anyone the Senate will confirm. Recall the prac­tice of senatorial courtesy. That unwritten rule, which is closely followed in the Senate, gives great weight to the preferences of the senators from the State in which a federal judge is to serve. In short, senatorial courtesy means that the President almost always nominates someone who has been recommended by the senators from the State involved.

The Constitution says nothing about the qualifications of Supreme Court members.  A President applies the same sorts of political considerations to his judicial selections as he does to his other appointments.

 SELECTION CRITERIA

Presidents use a number of criteria in selecting their nominations:

·        Political ideology – Presidents usually appoint judges that seem to have a similar political ideology to their own.  In other words, a president with a liberal ideology will usually appoint liberals to the courts.  The same goes for conservative presidents.  However, Presidents have no real way of predicting how justices will rule on particular issues.  Behavior doesn’t always reflect ideology, and political views also change.  For example, President Dwight Eisenhower – a Republican - appointed Earl Warren and William Brennan, who surprised him by becoming two of the most liberal justices in recent history.

·        Party and personal loyalties – A remarkably high percentage of a President’s appointees belong to his political party.  Overall, about 90 percent of judicial appointments since the time of Franklin Roosevelt have gone to members of the President’s party.  Although it isn’t as common today as it once was, Presidents still appoint friends and loyal supporters to federal judgeships.

·        Acceptability to the Senate -Because the Senate must confirm judicial nominations, the President must consider candidates that are acceptable to the Senate. Even if he does informally consult with the Senate, he may still run into problems with the Senate Judiciary Committee, who first interrogates nominees and recommends them to the full Senate. If a nominees runs into trouble in the confirmation process, they often withdraw their names from consideration.  If this happens, the President must start all over again, as happened to Ronald Reagan in 1988 when he nominated Douglas Ginsburg, who was criticized for using marijuana while a law professor at Harvard.

·        Judicial experience - Typically justices have held important judicial positions before being nominated to the Supreme Court. Many have served on courts of appeals, and others have worked for the Department of Justice. Some have held elective office, and a few have had no government service but have been distinguished attorneys. The work of the Supreme Court is so unique that direct judicial experience is often less important than it is for the other courts of appeals.

·        Race and gender - The first black American, Thurgood Marshall, was appointed to the Supreme Court by Lyndon Johnson in 1967, and the first woman, Sandra Day O'Connor, was appointed in 1981 by Ronald Reagan. Since then one other black, Clarence Thomas, and one woman, Ruth Ginsburg, have been appointed as well. Before 1967 all justices were white and male.  The percentage of women and minority federal judges appointed has increased significantly in recent years.

·        The "Litmus Test" - Although most senators and presidents deny it, some observers believe that candidates must pass a "litmus test," or a test of ideological purity, before they may be nominated and/or confirmed to the Supreme Court. One recent litmus test supposedly has been the individual's attitude toward abortion rights. Nominees David Souter and Clarence Thomas both were grilled by the Senate Judiciary Committee about their opinions on prominent abortion cases.

 

From George Washington's day, Presidents have looked to their own political party in mak­ing judicial appointments. Republican Presidents regularly choose Republicans; Democrats usually pick Democrats.

Every President knows that the judges he appoints may serve for decades. So the chief executive regularly looks for judges who tend to agree with his own legal, political, economic, and social views.

The concepts of judicial activism and judicial restraint often play a part in the judicial selection process-especially at the Supreme Court level. Generally, judicial activists believe that a judge should use his or her position to promote desirable social ends-for example, in cases involving civil rights or social welfare issues. The proponents of judicial restraint hold that in making their decisions, judges should defer to the actions of the executive and legislative branches-except in cases where those actions are clearly unconstitutional. They frequently note that the President and members of Congress are elected by the people, but federal judges are not.

The President and his closest political and legal aides, especially the attorney general, take the lead in selecting federal judges, of course. Major roles also are played regularly by influential senators (notably those from the nominee's home State); by the President's allies and supporters in the legal profession; and by various other important personalities in the President's political party.

Nomination Process for Federal Judges/ Supreme Court Justices: The Senate's Role 1. The Constitution assigns the President and the Senate co-equal roles in the process of selecting federal judges, including Supreme Court justices. The President is responsible for nominating candidates. The Senate, exercising its constitutional "advice and consent" responsibility, then evaluates the nominee: The nominee takes the bench only if the Senate votes to confirm him or her. Once appointed, Supreme Court justices, as well as federal lower court judges, serve for life, unless they resign, retire, or are removed by Congress through the process of impeachment and conviction.

2. When the Senate receives a nomination from the President, it sends the nomination to the Senate Judiciary Committee for consideration.

3. Supreme Court nominations are the subject of intense media and national interest, and numerous constituent groups weigh in publicly and with the Senate in support of or opposition to the nomination. Senate Judiciary Committee Chairman Orrin Hatch (R- UT) has said that he will allow one month for review and investigation of a Supreme Court nominee before the Committee takes action.

4. The Senate Judiciary Committee then holds hearings on the nomination. Unlike hearings on nominations to the lower courts, which usually take less than one day and have no other witnesses besides the nominee, Supreme Court nomination hearings usually take several days and include other witnesses, both supporting and opposing the nomination. The Committee then votes on the nomination, and by tradition and agreement, Supreme Court nominations are sent to the floor regardless of whether a majority of Committee members votes in favor of the nomination.

5. The full Senate then debates the nomination on the floor, and if a majority votes in favor of the nomination, the nominee is confirmed. However, if the nomination is filibustered, 3/5 of the Senate is needed to end debate (known as a "cloture vote") and allow for a full Senate vote on the nominee. For what reasons may the Senate reject a Supreme Court nominee?  Again the Constitution is silent.

6. Recent battles over the Supreme Court and the federal judiciary demonstrate that partisan politics have become a significant factor in the selection process in recent years. This development raises important questions. What factors should be taken into account when selecting a federal judge? Should a nominee be rejected on the basis of his or her political beliefs? What role should outside interest groups play in the process? An even more important question is: What effect might such partisan politics have on the independence of the judiciary? Will qualified judicial candidates censor their writings or conform their opinions fearing that, if they do not, a federal judgeship is out of the question? Will qualified candidates refuse to even try to become judges rather than face a prolonged and bitter selection process?

The founders of our country saw the importance of having judges make decisions about law and the Constitution free from political pressure. Only time will tell if their wisdom will survive.

QUESTIONS

  1. Federal Judges/Supreme Court Justices are nominated by the____________________and must be approved by the ____________.

 

  1. What does the Constitution say about the qualifications of Supreme Court Justices?

 

  1. What is a “Litmus Test?” Do you think judicial nominees should be asked about how they would decide a specific case. Should judicial nominees answer such a question? Why or why not?

 

 

 

 

 

 

 

 

 

  1. Summarize some of the selection criteria that a President would use to nominate a Supreme Court Justice.

 

 

 

 

 

 

 

 

  1. Why do you think Supreme Court justices and federal judges are appointed for life terms?

 

 

 

 

 

  1. What effect might partisan politics in selecting federal judicial officers have on an independent judiciary?