Simone Lawson
The process of judicial nominations in the United States Constitution is described in several sections. Article II, Section 2, Clause 2, also known as the Appointments Clause, grants the President the power to nominate individuals for federal judicial positions, including Supreme Court justices. The President nominates, and with the Advice and Consent of the Senate, appoints judges to the Supreme Court. This process is referred to as the Senate's 'advice and consent' role. Article III, Section 1, establishes the judicial branch of the government and outlines qualifications and appointments.
| Characteristics | Values |
|---|---|
| Section | Article II, Section 2, Clause 2 (Appointments Clause) |
| Power | Grants the President the power to nominate individuals for federal judicial positions, including Supreme Court justices |
| Confirmation | Confirmation by the Senate |
| Senate role | Advice and consent |
| Article III judges | Nominated by the president and confirmed by the U.S. Senate |
| Tenure | Article III judges "hold their office during good behavior", which means they have a lifetime appointment, except under very limited circumstances |
| Removal | Article III judges can be removed from office only through impeachment by the House of Representatives and conviction by the Senate |
| Senior status | Article III judges who have met age and service requirements are eligible for senior status at 65 years old and after serving a minimum of 15 years, or any combination of age and years of service that equals 80 |
| Territorial courts | Congress has established three territorial courts in the U.S. Virgin Islands, the Northern Mariana Islands, and Guam, with judges appointed by the President and confirmed by the Senate to renewable 10-year terms |
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What You'll Learn
Article II, Section 2, Clause 2: The Appointments Clause
The Appointments Clause must be read against the background of "the executive power" granted to the President. The President's authority included the traditional powers of an executive, not just the enumerated powers specified in Article I. The Appointments Clause qualifies this by expressly giving some of the executive's traditional powers to Congress.
The Senate is given the power to advise and consent to nominations. The Constitution does not change the executive's power to dismiss subordinate officers, so the President retains that unqualified power. This view reflects the majority view of the First Congress after a deliberate debate when they did insulate the President's authority over the Secretary of State.
The Appointments Clause also establishes that Congress can, by law, allow the President, the courts, or the heads of departments to appoint "inferior officers" without requiring the advice and consent of the Senate. The Recess Appointments Clause, also part of Article II, gives the President the power to make recess appointments to fill vacancies that occur when the Senate is in recess.
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Article II, Section 2, Clause 3: The Recess Appointments Clause
Article II, Section 2, Clause 3 of the US Constitution is known as the Recess Appointments Clause. It allows the president to fill vacancies that occur when the Senate is in recess. This is done by granting a commission to someone who will fill the vacancy until the end of the Senate's next session.
The Recess Appointments Clause was designed to ensure the uninterrupted operation of the government during periods when the Senate was not in session and therefore unable to perform its advice and consent function. It was adopted by the Constitutional Convention without dissent or debate regarding its intent and scope. Alexander Hamilton referred to it as "nothing more than a supplement... for the purpose of establishing an auxiliary method of appointment, in cases to which the general method was inadequate."
The Recess Appointments Clause is particularly relevant when the Senate is unavailable for extended periods, whether due to travel time or emergencies. In modern times, presidents may invoke it when the Senate is politically opposed to them. It is worth noting that the Recess Appointments Clause only applies if a vacancy occurs while the Senate is in recess.
The Supreme Court has interpreted the clause broadly in cases such as National Labor Relations Board v. Noel Canning, concluding that the phrase "Recess of the Senate" applies to both inter-session and intra-session recesses. The Court also declined to define the minimum length of a recess required to trigger the president's appointment power, but it suggested that a recess of more than three but less than ten days is "presumptively too short."
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Article III, Section 1: Qualifications and appointments
Article III, Section 1 of the US Constitution outlines the qualifications and appointments of federal judges, including Supreme Court justices. It establishes the process by which these judges are nominated and confirmed, as well as the terms of their tenure and removal from office.
Article III judges, also known as "federal judges," are nominated by the President of the United States and confirmed by the US Senate. This process aligns with the Appointments Clause, which grants the President the power to appoint judges with the advice and consent of the Senate. The President typically consults with Senators before announcing a nomination, and the nominee is then evaluated by the Senate Judiciary Committee. This committee holds hearings, collects records, and assesses the nominee's qualifications, judgment, and philosophy.
The Senate Judiciary Committee's hearings allow witnesses, both supporting and opposing the nomination, to present their views. After the hearings, the committee votes on the nomination and sends its recommendation to the full Senate. The Senate then debates the nomination and holds a confirmation vote. A simple majority of the Senators present and voting is required for the confirmation of a judicial nominee.
Article III judges are appointed for life and can only be removed through impeachment by the House of Representatives and conviction by the Senate. Their salaries cannot be reduced during their tenure, and their appointments are unaffected by geographical considerations. Additionally, federal legislation establishes the eligibility requirements for these judges, including age and service criteria for senior status.
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Article III: Tenure and payment
Article III of the US Constitution governs the appointment, tenure, and payment of Supreme Court justices, federal circuit judges, and district judges. These judges are often referred to as "Article III judges".
Article III states that these judges "hold their office during good behaviour", which effectively means they have a lifetime appointment, except under very limited circumstances. The language about "holding offices during good behaviour" has been interpreted to mean that the only way federal judges can be removed from office is if the House of Representatives impeaches them, and the Senate convicts them, of "treason, bribery, or other high crimes and misdemeanors". For all practical purposes, any judge who does not commit a serious crime or offence will remain in office until they die or voluntarily step down.
Article III also provides that judges' salaries cannot be reduced while they are in office. Article III judicial salaries are not affected by geography or length of tenure.
Article III judges who have met age and service requirements set by federal statute are eligible to take senior status if they are at least 65 years old and have served at least 15 years on the bench, or any combination of age and years of service that equals 80. Regardless of age, judges must serve at least 10 years to qualify for senior status. Upon taking senior status, judges may choose to handle a reduced caseload. Senior judges handle about 20% of the total district and appellate caseload. By taking senior status, even if maintaining a full caseload, a judge creates a vacancy on the court, to be filled by the nomination and confirmation process for Article III judges.
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The role of the Senate Judiciary Committee
The Senate Judiciary Committee plays a crucial role in evaluating and vetting judicial nominees. Once the President nominates a candidate, the nomination is sent to the Committee for consideration. The Committee holds hearings on the nominee, collecting records from the FBI and other sources to assess their qualifications, judgment, and philosophy. Witnesses, both supporting and opposing the nomination, present their views during these hearings. The Committee's hearings typically last about a month, allowing for a thorough examination of the nominee's background and qualifications.
The Committee's role in the nomination process has evolved over time. In the early 19th century, the Senate often considered nominations without referring them to a committee. However, by the 1860s, the Senate adopted rules to routinely refer nominations to appropriate committees. The Judiciary Committee's significance increased further in the early 20th century as fights over Supreme Court nominations intensified and drew more public attention.
The "blue slip" process, instituted by the Judiciary Committee in 1917, is another important aspect of its role. This process involves seeking input from home-state senators on a nominee, giving them a voice in the process. The Committee's hearings have also set important precedents, such as the first public hearing for a Supreme Court nominee in 1939, where Felix Frankfurter answered unrestricted questions in an open and transcribed session.
Overall, the Senate Judiciary Committee plays a vital role in the judicial nomination process, ensuring a thorough evaluation of nominees and providing advice and consent to the President on these important appointments.
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Frequently asked questions
Article II, Section 2, Clause 2, also known as the Appointments Clause.
The President of the United States.
The Senate is responsible for confirming the President's nominations. This is referred to as the Senate's 'advice and consent' role.
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