The National: The Process of Nominating a Supreme Court Justice
After the death of Antonin Scalia last February, the Supreme Court has been left with an empty seat for an unprecedented amount of time. Since the Republican Majority blocked the appointment of the Honorable Merrick Garland, who has served as chief judge of the United States Court of Appeals for the District of Columbia Circuit since 1997, it was left up to President Donald Trump to fill the position. So how does someone become a Supreme Court Justice? I’m glad you asked.
The Constitution of the United States gives the power of nominating new Justices to the President. Article II, Section 2 provides that the President, “shall nominate, and by and with the advice and consent of the Senate, shall appoint…judges of the Supreme Court.” By law, the president can nominate whoever they want—a politician, a judge, a Seattle based personal injury and business attorney, or anyone else the president considers appropriate for the role—to fill a vacancy in the Court.
When selecting a candidate, the President will go through published rulings, articles, speeches or any other background material to get an idea of the candidates’ values, views on constitutional issues, and capacity for impartiality. Age, health, race, gender and likelihood of confirmation are also factored into considerations. Senators may call the President with suggestions, and after a list of candidates is selected, they are contacted and vetted by White House staffers who go over tax records and ensure there are no financial conflicts that might raise concerns. But that is only the beginning of the appointment process.
Once the President has made a selection, the candidate is then referred to the Senate, specifically the Senate Judiciary Committee, for confirmation. Before confirming a candidate, the Committee does three things. First, it conducts a prehearing investigation into the nominee’s background. Since judges must, by law, avoid even the appearance of impropriety, they examine his or her track record, look for any potential conflicts and anything that might indicate that the individual is not capable of neutrality. Second, the Committee holds a public hearing, in which the nominee is questioned and may give testimony about everything from their judicial philosophy to their views on various hot button issues such as abortions, gay marriage or gun control. Finally, the Committee will report its recommendation to the full Senate, and they may give either a favorable recommendation, a negative recommendation or no recommendation.
Before the President can appoint the new Justice, he or she has to be confirmed by the whole Senate. Here’s where things start to get wonky. In order to consider the nominee, the Senate has to enter a special “execute session.” This is usually achieved by having the Senate Majority leader, currently Mitch McConnell (R-KY), asking for unanimous consent to have the Senate consider the nomination. The reason why the current vacancy has yet to be filled is because Mitch has issued a statement saying that the vacancy should not be filled by President Obama, but instead by whomever the incumbent president is. As you know, Mr. McConnell got his way. The Senate never considered the nomination of Merrick Garland and shortly after setting up shop in the Oval Office, Donald Trump nominated the Honorable Neil Gorsuch to fill the open seat.
Despite his impressive resume, this pick caused an incredible amount of controversy, especially among democrats who feel like this nomination was robbed from them. This brings up an important point: if unanimous consent cannot be obtained in the Senate, someone may make a motion to go ahead and vote anyway. If this happens, that vote can be blocked by filibuster.
In recent days there has been a lot of buzz from democrats who are seriously considering the use of a filibuster in an attempt to block the nomination of Neil Gorsuch. This has prompted Donald Trump to urge McConnell to “go nuclear” in order to get his pick confirmed. Although it sounds more like a corny line from an action movie, believe it or not, “going nuclear” is actually a thing in the Senate. According to Mother Jones, “[t]he term was originally a reference to the expected impact on the Senate's ability to function if the majority party overrides the rules and ends the filibuster.” Yes, that’s right, going nuclear is basically ending the filibuster for Supreme Court nominees.
Senate rules, including the use of filibusters, are extremely hard to change because they require a whopping 2/3 majority vote…well usually. For all the flack politicians get for not getting anything done, they are sure good at finding loopholes. Republicans need not actually change the rules of the Senate in order to eliminate the filibuster, they could simply reinterpret them which would only take a mere 51 votes. What is really important to understand about this, however, is that once this happens there’s no going back. This carries weight because even it happens one time that is a precedent. Although the Republicans could benefit from “going nuclear” this time, it could be the Democrats next time with the majority leaving the Republicans with no recourse to block a Supreme Court nomination.
Now, let’s assume that the nomination received a favorable recommendation from the Judiciary Committee, there are no filibusters, and nobody gets nuked. A vote to confirm a nominee requires a simple majority of the senators present and voting. If the nominee gets the majority vote, then the Senate will transmit the confirmation vote to the president, and the president can sign a commission appointing the person to the Supreme Court.
As you can see this is a long and potentially contentious process, and rightfully so. If the Honorable Neil Gorsuch makes it onto the bench he will likely be hearing cases that have staggering implications for women’s reproductive rights, immigration, and other constitutional issues that will affect the country for decades to come. Even the Justice’s conduct outside the courtroom will be of particular interest in this political climate. Questions have been swirling recently about whether the judicial branch can continue to remain impartial in a time of unprecedented bipartisanism and political pressure.
For the past two centuries, the Supreme Court has been tasked with holding the United States accountable to its founding principles, the Constitution. From a small collection of rural colonies, these same principles have guided us to become the booming world power that we are today. Regardless of who is ultimately confirmed to fill the seat of Justice Scalia, he or she has a long and decorated history to uphold. Some of the greatest legal minds that this country has produced have taken their seats on the Supreme Court bench and the next appointee will have some very big robes to fill.