Omar Bennett
The process of appointing a Supreme Court Justice in the United States involves the President nominating an individual, who then must be confirmed by the Senate. This process is outlined in Article II, Section 2, Clause 2 of the US Constitution, also known as the Appointments Clause. The Senate plays a crucial role in evaluating the nominee's background and qualifications before confirmation, and justices appointed in this way serve for life. While the Constitution provides for this process, the political dynamics of the time, such as the balance of power between political factions, can influence the type of nominee the President chooses and the Senate confirms.
| Characteristics | Values |
|---|---|
| Appointment of Supreme Court Justices | Requires Senate confirmation |
| Type of Officers | Principal and Inferior |
| Appointment of Principal Officers | Requires the advice and consent of the Senate |
| Appointment of Inferior Officers | Can be appointed by the President, judiciary, or department heads |
| Role of the President | Nominates the Supreme Court Justice |
| Role of the Senate | Confirms the nomination |
| Role of the Senate Judiciary Committee | Plays an important role in the process |
| Factors considered by the Senate | Political considerations, judicial philosophy, fitness, past statements, and balance of power |
| Historical Data | Since 1789, the Senate has confirmed 122 out of 158 Court nominations |
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What You'll Learn
The Appointments Clause and the confirmation process
The Appointments Clause, as outlined in Article II, Section 2, Clause 2 of the US Constitution, empowers the President to nominate and appoint public officials with the advice and consent (confirmation) of the Senate. This clause applies to the appointment of "Officers of the United States," which includes ambassadors, Cabinet secretaries, federal judges, and Supreme Court justices.
The confirmation process involves several steps. First, the President nominates an official, taking into consideration various factors such as political considerations, the nominee's judicial philosophy, fitness for the bench, past statements on relevant issues, and the overall balance of power between political factions. Next, the Senate conducts its confirmation process, which includes hearings by the Senate's Judiciary Committee. Senators ask nominees questions, evaluate their qualifications, and consider their disclosures to relevant Senate committees. The Senate's role is to provide advice and consent, either confirming or rejecting the President's nominee. Finally, if the nominee is confirmed by the Senate, the President appoints and commissions the appointee, who can then assume their office.
The Appointments Clause distinguishes between two types of officers: principal officers and inferior officers. Principal officers, such as Supreme Court justices, must be appointed by the President and confirmed by the Senate. On the other hand, inferior officers can be appointed by the President alone or by the judiciary or department heads, depending on how Congress vests the appointment power.
The interpretation and application of the Appointments Clause have been disputed and clarified through Supreme Court cases, such as Buckley v. Valeo in 1976, which held that only appointees "exercising significant authority" are considered "Officers of the United States" and subject to the Appointments Clause. The Court's rulings on the clause shed light on the structural makeup of the federal government and the separation of powers between its branches.
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The role of the Senate Judiciary Committee
The Senate Judiciary Committee plays an important role in the consideration of nominations and pending legislation. Executive nominations for positions in the Department of Justice, the Office of National Drug Control Policy, and other agencies are referred to this committee. The committee is also charged with the consideration of all Article III judicial nominations, including Supreme Court nominations, appellate court nominations, and district court nominations.
The Senate Judiciary Committee has been an integral part of the nomination process since the early 1900s. The committee holds public hearings and considers a range of matters when reviewing presidential nominees, including political considerations, a nominee's judicial philosophy, fitness for the bench, past statements on relevant issues, and the overall balance of power between political factions.
The "blue slip" process, instituted by the Judiciary Committee in 1917, involves asking home-state senators to register their objections or approval of a nominee on a blue form. This process has endured and provided home-state senators with a voice in the committee's decision-making process.
The Senate Judiciary Committee has the power to summon nominees to testify before them, as seen in the case of Harlan Fiske Stone, who was nominated by President Calvin Coolidge. The committee has also allowed outside groups to lodge objections to nominations, as seen in the case of John J. Parker, who was nominated by President Herbert Hoover in 1930.
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The President's power to nominate
The President's nominees are subject to the "advice and consent" of the Senate, which can be influenced by a range of factors, including political considerations, a nominee's judicial philosophy, fitness for the bench, past statements on relevant issues, and the overall balance of power between political factions. The Senate Judiciary Committee also plays an important role in the process, although it is not mentioned in the Constitution.
The political nature of the appointment process becomes apparent when a President submits a nominee with controversial views or when there are sharp ideological differences between the President and the Senate. A shift in party control of the Senate can also dramatically alter the type of nominee a President can expect to be confirmed. For example, a President with strong approval ratings may have broader leeway in the type of Justice they can nominate.
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The Senate's power to advise and consent
The United States Constitution's Appointments Clause grants the Senate the authority to "advise and consent" on appointments and treaties. This means that the Senate can approve or reject the President's nominations for federal positions, including Supreme Court justices, and ratify treaties.
The "advice and consent" power of the Senate is outlined in Article II, Section 2 of the Constitution. This clause states that the President shall nominate and appoint individuals to federal positions, including Supreme Court justices, with the "'advice and consent' of the Senate". The Senate's role in this process is to evaluate and confirm the President's nominees.
The process of "advice and consent" typically involves a congressional hearing where an appointee is questioned by a Senate committee. If the nominee is approved by this committee, the nomination is then sent to the full Senate for a confirmation vote. A majority of Senators present are required to pass a motion "to advise and consent".
The Senate's power to "advise and consent" also extends to the ratification of treaties. The Senate can approve or reject resolutions of ratification of treaties to which the United States is a proposed signatory. As of December 30, 2016, there were 44 treaties listed by the State Department that had been submitted to the Senate but had not received its advice and consent.
The "advice and consent" power of the Senate has been interpreted differently by various framers of the Constitution. Some, like Thomas Jefferson and James Madison, believed that the Senate's role is to advise the President after a nomination has been made. On the other hand, Roger Sherman believed that advice before nomination could be beneficial. President George Washington took the position that pre-nomination advice was optional but not mandatory.
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The impact of political considerations
The Appointments Clause of the US Constitution states that the President shall appoint Supreme Court Justices, subject to Senate confirmation. This means that the President nominates a candidate, and the Senate provides its "advice and consent".
Political considerations can play a significant role in the Supreme Court appointment process. Firstly, the political environment and the composition of the Senate can influence the President's choice of nominee. For instance, a President facing opposition in the Senate might opt for a more moderate nominee to limit resistance. Similarly, a President with strong approval ratings may have more leeway in selecting a particular type of Justice.
The attributes of the outgoing Justice can also impact the President's options. Replacing a Justice considered a swing vote may push the President towards a moderate nominee. Conversely, if the outgoing Justice is a pillar of a particular political side, the President might seek a nominee who strongly appeals to that side.
The Senate's behaviour can also be partisan, with support or opposition to a nomination depending on which President made it. For instance, Ronald Reagan's nomination of the conservative Robert Bork failed due to a negative ad campaign, resulting in a lost floor vote in the Senate.
The President's political considerations may also extend to the lower courts. While the Supreme Court Justices are expected to be apolitical, the President may appoint highly partisan lower court judges. This could potentially increase the chances of these judges being considered for the Supreme Court by a President from the same political party.
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Frequently asked questions
Yes. The Appointments Clause states that the President shall appoint "Judges of the Supreme Court" subject to the "advice and consent" of the Senate.
A range of matters are considered relevant by the Senate when deciding whether to give its consent for nominations. This includes political considerations, a nominee's judicial philosophy, fitness for the bench, past statements on issues relevant to the Court, and the overall balance of power between political factions.
The Appointments Clause distinguishes between two types of officers: principal officers and inferior officers. Principal officers are selected by the President with the advice and consent of the Senate, while inferior officers are appointed by the President alone, the judiciary, or department heads.
Although not mentioned in the Constitution, the Senate Judiciary Committee plays an important role midway in the process. The political nature of the appointment process becomes especially apparent when there are sharp ideological differences between the President and the Senate.
