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. Justices are appointed by the President of the United States, and must be confirmed by the United States Senate. Modernly, this is done following a series of hearings in which both the nominee and other witnesses make statements and answer questions before the Senate Judiciary Committee.
Article Two of the United States Constitution places the power of appointing Justices with the President of the United States, stating:
- "he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint ... Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law..."
Most Presidents nominate individuals who broadly share their ideological views. 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". 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 anyone to serve. However, that person must receive the confirmation of the Senate.
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. 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 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 Frankurter, who only addressed (at the Committee's request) what he considered to be slanderous allegations against him. 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.
A simple majority vote is required to confirm or to reject a nominee. Once the Committee reports out the nomination, the whole Senate considers it. 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. Some believe this is because Congress sees Justices as playing a more political role than in the past. The perceived politicization of the process has drawn criticism. For example, columnist George F. Will termed the defeat of Robert Bork's nomination "unjust". Will wrote that the nomination process does "not delve deeply into the nominee's jurisprudential thinking." Supreme Court nominations have caused media speculation about whether the judge leans to the left, middle, or right. 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; after 1955, every nominee has been required to appear before the Senate Judiciary Committee and answer questions; and the times spent being grilled have lengthened from single digits (before 1980) to double digits today.
Following is a table of the approximate number of hours that media sources estimate were spent on the questioning of Supreme Court nominees:
|1925||Harlan Fiske Stone||5|
|1955||John Marshall Harlan II||*|
|1957||William J. Brennan, Jr.||3|
|1971||William H. Rehnquist||7|
|1975||John Paul Stevens||6|
|1981||Sandra Day O'Connor||12|
|1987||Robert Bork (not confirmed)||30|
|1990||David H. Souter||20|
|1993||Ruth Bader Ginsburg||20|
|1994||Stephen G. Breyer||20|
|2005||John G. Roberts, Jr.||20|
Once the Senate confirms the nomination by an affirmative vote, the President must prepare and sign a commission, and have the Seal of the United States Department of Justice affixed to the document before the new Justice can take office. It is this act of the President which officially commences the beginning of an individual Justice's tenure.
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 (at most, 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. 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. 
Following is a list of recess appointments that have been made to the Supreme Court:
|Justice||Appointed by||Date of
|Johnson, ThomasThomas Johnson||Washington||August 5, 1791||October 31, 1791||November 7, 1791||Confirmed|
|Rutledge, JohnJohn Rutledge
(as Chief Justice)
|Washington||July 1, 1795||December 10, 1795||December 15, 1795||Rejected|
|Thompson, SmithSmith Thompson||Monroe||September 1, 1823||December 5, 1823||December 9, 1823||Confirmed|
|Woodbury, LeviLevi Woodbury||Polk||September 20, 1845||December 23, 1845||January 3, 1846||Confirmed|
|Curtis, Benjamin RobbinsBenjamin Robbins Curtis||Fillmore||September 22, 1851||December 11, 1851||December 20, 1851||Confirmed|
|Davis, DavidDavid Davis||Lincoln||October 17, 1862||December 1, 1862||December 8, 1862||Confirmed|
|Holmes, Jr., Oliver WendellOliver Wendell Holmes, Jr.||T. Roosevelt||August 11, 1902||December 2, 1902||December 4, 1902||Confirmed|
|Warren, EarlEarl Warren
(as Chief Justice)
|Eisenhower||October 2, 1953||March 1, 1954||March 1, 1954||Confirmed|
|Brennan, Jr., William J.William J. Brennan, Jr.||Eisenhower||October 15, 1956||January 14, 1957||March 19, 1957||Confirmed|
|Stewart, PotterPotter Stewart||Eisenhower||October 14, 1958||January 17, 1959||May 5, 1959||Confirmed|
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.
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, 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. This plan, usually called the "Court-packing Plan", failed in Congress and proved a political disaster for Roosevelt. 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.
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.
- Todd S., Purdum (July 5, 2005). "Presidents, Picking Justices, Can Have Backfires". Courts in Transition: Nominees and History (New York Times). p. A4.
- Tom Curry (Nov 5, 2005). "A guide to the Supreme Court nomination (quote:) "...1939, when he went before the Judiciary Committee, nominee Felix Frankfurter told senators..."". MSNBC.com. Retrieved 2009-10-24.
- STEPHEN L. CARTER (May 9, 2009). "Let the Nominee Stay Home (quote:) "...The first was John Marshall Harlan in 1955, who declined invitations to discuss either specific cases or judicial philosophy as 'a matter of propriety'..."". New York Times. Retrieved 2009-10-24.
- "United States Senate. "Nominations"".
- Balkin, Jack M. "The passionate intensity of the confirmation process". Jurist. Archived from the original on 17 February 2008. Retrieved 2008-02-13.
- George F. Will (May 27, 2009). "Identity Justice: Obama's Conventional Choice". Washington Post. Retrieved 2009-10-22.
- NEIL A. LEWIS (June 27, 1993). "Balanced Jurist at Home in the Middle". New York Times. Retrieved 2009-10-22.
- Steve Padilla (July 15, 2009). "Sotomayor hearings: The grilling of Supreme Court nominees is a relatively new invention (quote:) "Harlan Stone became the first Supreme Court nominee to appear and testify before the Judiciary Committee in 1925" ALSO "Every nominee to the high court since President Eisenhower’s 1955 nomination of John Harlan has testified before the committee."". Los Angeles Times. Retrieved 2009-10-24.
- "COURT IN TRANSITION; Republicans Speak of Respect of Roberts's Peers, and Democrats Issue Warnings -- their sources: Courts and Congress by Judge Robert A. Katzmann; Senate transcripts)". New York Times. September 16, 2005. Retrieved 2009-10-22.
- 5 U.S.C. § 2902.
- See 28 U.S.C. § 4.
- Fisher, Louis (2001-09-05). "Recess Appointments of Federal Judges" (PDF). CRSN Report for Congress. Congressional Research Service (The Library of Congress). RL31112: 16–18. Archived (PDF) from the original on 4 August 2010. Retrieved 2010-08-06.
Resolved, That it is the sense of the Senate that the making of recess appointments to the Supreme Court of the United States may not be wholly consistent with the best interests of the Supreme Court, the nominee who may be involved, the litigants before the Court, nor indeed the people of the United States, and that such appointments, therefore, should not be made except under unusual circumstances and for the purpose of preventing or ending a demonstrable breakdown in the administration of the Court’s business.
- Democrats supported the resolution 48-4, and Republicans opposed it 33-0.
- Appel, Jacob M. (2009-08-22). "Anticipating the Incapacitated Justice". Huffington Post. Retrieved 2009-08-23.
- 16 Stat. 44
- Mintz, S. (2007). "The New Deal in Decline". Digital History. University of Houston. Retrieved 2009-10-27.
- Hodak, George (2007). "February 5, 1937: FDR Unveils Court Packing Plan". ABAjournal.com. American Bar Association. Retrieved 2009-01-29.
- "Justices, Number of", in Hall, Ely Jr., Grossman, and Wiecek (editors), The Oxford Companion to the Supreme Court of the United States. Oxford University Press 1992, ISBN 0-19-505835-6