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How Supreme Court Appointments Work
The retirement of Supreme Court Justice Sandra Day O'Connor and the death of Chief Justice William Rehnquist has led to rampant speculation and political maneuvering. The process of appointing replacement justices is underway. This is nothing new -- Supreme Court appointments have been matters of tremendous importance to American law almost since the inception of the United States.
In this article, we'll find out how Supreme Court justices are nominated, who is qualified to serve and how a nominee is approved. We'll also try to sort out the complicated politics that come into play when a justice is nominated.
Supreme Court Basics
The Supreme Court is the highest court in the United States. As the Judicial Branch of the U.S. government, it serves to balance the powers of the Legislative and Executive branches and stands as the final word in any given legal dispute. Once the Supreme Court has made a decision, no other court can review or overturn that decision.
Collection of the Supreme Court of the United States
Supreme Court building in Washington, D.C.
Today, the authority of the Supreme Court is very clear. Roughly 5,000 cases are submitted to the court every year, but it only has time to take on 100 to 150 of them. Usually, the Supreme Court only accepts cases that:
* involve some crucial question related to the U.S. Constitution
* have been appealed from a lower federal court
* involve treason, ambassadors or disputes with other countries
The Supreme Court did not always have this power, however. The Constitution is very vague about the authority of the court, saying only that its "Power shall extend to all Cases, in Law and Equity, arising under this Constitution." The specifics, such as where and when the court would meet, how many justices there would be and exactly what is covered under "cases arising under this Constitution" were left to Congress to decide later. It wasn't until Justice John Marshall's 1803 decision in Marbury v. Madison that the Supreme Court's authority to judge matters of constitutionality was determined.
Collection of the Supreme Court of the United States
The Old Supreme Court Chamber, where the Court sat from 1810-1860
Collection of the Supreme Court of the United States
The Old Senate Chamber, where the Court sat from 1860-1935
Collection of the Supreme Court of the United States
The Courtroom of the Supreme Court Building, where the Court has sat since 1935
When the Supreme Court renders a decision (by a simple majority, or at least five of the nine justices), all other courts in the country follow the precedent set by that decision. So when a case comes before the Court, the ruling affects not only the specific case and law in question, but all similar laws and cases nationwide. For example, if the Supreme Court decided that a law in Maine banning signs on front lawns with anti-war messages was unconstitutional, any state or municipality with the same kind of law would be unable to prosecute anyone for breaking it. Judges all the way from county courts to state supreme courts would look to the Supreme Court's decision and throw out the case because it was based on an unconstitutional law.
Supreme Court justices have a great deal of power for another reason, too: They are appointed for life. That means that they never have to face re-election, and they don't have to make sure that their decisions please the president who appointed them. The average justice serves for 14 years and retires at age 71 [ref].
When a justice retires, he or she usually tries to time it with the Court's summer recess so a replacement can be found before the next session. If a replacement hasn't been found in time, the Court can operate with however many justices are present. If the Court operates with an even number of justices, and a decision results in a tie, the lower court decision in the case is "passively upheld." That is, it is upheld for that particular case, but the Supreme Court doesn't issue an opinion or set any kind of legal precedent. Thus, a similar case could come before the Supreme Court in the future.
Next, we'll find out how Supreme Court justices are nominated and approved.
Who is Qualified?
The president nominates justices to the Supreme Court, subject to majority approval by the Senate. There are no rules spelled out in the Constitution regarding the qualifications of judicial candidates, so technically, the president can nominate anyone he or she wants. However, there are certain traditional attributes that viable candidates for a spot on the Supreme Court should have if he or she is to have any chance of Senate approval.
Collection of the Supreme Court of the United States
Bronze entrance doors to the Court
Collection of the Supreme Court of the United States
The Great Hall, looking toward the Courtroom
Every Supreme Court justice has been a lawyer, and for the last 150 years they have all been graduates of accredited law schools. John Marshall, considered one of the greatest justices to ever serve on the Supreme Court, only attended law school for a few weeks. He studied law as a teenager by borrowing law books from a nearby lawyer (Aaseng, pg. 20).
For the last few decades, almost all Supreme Court nominees have been federal judges.
Nominees generally have participated in politics to some extent, though this can take many forms. Some are involved in unions or other politically active groups, while some served in Congress or were state governors. One chief justice was a former president -- Howard Taft became Chief Justice eight years after he left the Oval Office.
The Nomination Process
Once the president nominates someone (usually with a personal phone call to that person) and releases the name, the Senate holds hearings. At these hearings, senators interview the nominee regarding his or her record as a judge and lawyer and where he or she stands on key issues. If the nominee has any dark secrets or past indiscretions, they are likely to come out in the Senate hearings, as well. Perhaps the most infamous instance of this took place at the confirmation hearings for Clarence Thomas, who was accused of sexual harassment by former colleague Anita Hill. He was eventually confirmed by the Senate despite the controversy. The overwhelming majority of Supreme Court nominees are approved by the Senate -- there have been only 12 rejections out of 148 nominees.
Collection of the Supreme Court of the United States
The Main Reading Room in the Supreme Court Library
Until the 20th century, these hearings were held behind closed doors. In fact, the nomination process was almost completely invisible to the public. The president might seek the advice of friends and associates, but he made the choice on his own and even contacted and interviewed potential candidates on his own time. Today, members of the White House staff and the Justice Department are all involved in the decision, creating lists of candidates and sometimes competing with one and other to promote a particular candidate. Also, since 1930 the confirmation hearings have been completely open to the public. They have been televised since 1981 (Yalof, pg. 15).
There are several ways that a nominee can fail to become a Supreme Court justice. Seven nominees throughout history have simply declined the nomination. If it appears that there is great opposition to a candidate, the president can withdraw the nomination, or the nominee can withdraw him or herself. The Senate can also reject a nominee. Once rejected, a nominee can be submitted again, but this is a foolish course of action for the president unless something has changed that might lead to a different vote by the Senate. In 1836, Andrew Jackson nominated Roger Taney, but the Senate rejected him. A few months later, Jackson nominated Taney again. In that time, Congressional elections had been held, and the Senate was now more favorable to Jackson. Taney was confirmed (Aaseng, pg. 43).
In the next section, we'll navigate the complicated political landscape that surrounds Supreme Court nominations.
The Induction Ceremony
Arthur J. Goldberg, who was appointed by John F. Kennedy in 1962, provides an account of the induction ceremony for new Supreme Court justices.
"It is not generally known that a newly appointed justice takes two oaths. The first is the judicial oath (like the Hippocratic oath of doctors) administered by the chief justice in the robing room in the presence of other members of the Court. The second is administered in open court."
Goldberg chose to take both oaths on a Hebrew bible, because he was Jewish, while other justices choose to take the oath on the official court bible (a Christian bible), which has the signatures of previous justices on the fly-leaf (Goldberg signed the court bible "to maintain continuity."). The open court portion of the ceremony was attended by the President and other government officials. However, Chief Justice Earl Warren did not make any special acknowledgement of Kennedy on that occasion, something Goldberg noted: "I noticed from President Kennedy's expression that he was rather nonplussed and somewhat resentful at not being introduced and called upon to say a few words."
After the taking of oaths, Goldberg was seated at his place on the bench, a long, high table at which all nine justices sit, with the Chief Justice at the center. At this point, Goldberg made a discovery that speaks to the great honor someone feels when they take a position in the highest court in the nation.
"I opened the drawer on the Bench adjacent to my chair to obtain some note paper. To my surprise and delight I found an old dog-eared copy of the Constitution bearing the personal signature of that great Yankee from Olympus, Justice Oliver W Holmes, Jr. Needless to say, this finding made a considerable emotional impact on me. To sit on the seat on the Bench once occupied by that great justice was a singular honor. To find a copy of the Constitution inscribed by Justice Holmes was doubly so."
Source: The Supreme Court Historical Society
It is not a simple matter for the president to make a Supreme Court appointment. Many factors can influence the choice, and the consequences for the president and his or her political party can be dramatic even if the nominee is approved.
First, the president and his advisors must consider the qualifications of the candidates. In recent decades, almost all nominees have been federal judges. However, there is no rule that requires this. Even looking beyond the ranks of federal judges, the list of candidates who are both qualified and likely to accept the nomination may not be extremely long.
The factor that draws the most political and media attention is the ideology of the nominee. The president wants to appoint someone who agrees with his or her views. A president who opposes abortion would want a justice who shares that opposition. A president in favor of legalizing gay marriage would want someone who shares that viewpoint. However, there are a lot of issues to worry about, and it is nearly impossible to find a candidate that is a "perfect fit" on all of them.
Even if the president finds a candidate with the desired outlook on important issues, those issues might come into conflict with the majority in the Senate. If the Senate is ruled by the opposing party, the president will have a difficult time getting a confirmation on a nominee with radical views. If the president's party controls the Senate, it will be much easier to confirm a nominee with views in line with that party, but it could still have a political cost in terms of public approval.
The president's popularity with the public is an important factor. If the president has low popularity, or popularity is evenly split, then pushing through a nominee with views that are perceived as "outside the mainstream" can galvanize opposition to the president and his party, leading to potential defeats in upcoming elections. This also explains why nominees who are named closer to an upcoming election tend to be more moderate -- the president doesn't want to anger the public (Yalof, pg. 6).
The political leaning of the outgoing justice plays a role in the politics of nomination as well. If a retiring justice is a political liberal, Senate liberals might fight a conservative candidate tooth and nail in order not to lose a seat on the Court that supports their ideology. In that case, the president might do better to nominate a moderate candidate. If the outgoing justice is a conservative, however, the Senate liberals might accept a conservative appointment as maintaining the status quo.
Still, as we'll find out in the next section, there's no guarantee that the judges the president does appoint will vote the way he or she thinks they will.
Independent Judges
Even if the president gets his ideal nominee confirmed by the Senate, there are no guarantees that the justice will decide cases in the way the president hopes. Why would justices fail to cooperate with the president's wishes? Because that's their job.
Collection of the Supreme Court of the United States
The Justices' Conference Room, where the Justices meet to discuss cases heard before the Court
Although the president appoints the justice, there is no political loyalty owed to the president. The Supreme Court is equal in power to the Executive branch. The job of the justices is to weigh the law against the rights guaranteed by the Constitution, not to support any one political ideology. Obviously, the personal opinions of the justices come into play, and in many cases, these coincide with those of the president. When that happens, the president gets exactly what he or she intended -- a Supreme Court justice that supports his doctrines and beliefs.
Collection of the Supreme Court of the United States
Main portico and entrance to the Supreme Court
However, when a justice enters the Supreme Court Building, which bears the motto "Equal Justice Under Law," even those who were certain they would bring the weight of their views to the position and reshape the law are often impressed by the honor and responsibility with which they have been entrusted. Justice Felix Frankfurter once said, "As a member of this court I am not justified in writing my private notions of policy into the Constitution, no matter how deeply I may cherish them or how mischievous I may deem their disregard." Many justices have felt the same. The justices that are regarded as the greatest in history are those who were able to examine cases logically, understand both sides of an issue and render judgment based on facts and the law rather than their personal feelings.
Perhaps the best example of judicial independence occurred during the Watergate scandal. The Supreme Court decided that President Nixon had to turn over his White House audio recordings to investigators, discarding his contention that executive privilege should allow him to keep the tapes private. Three of the justices who sided against Nixon had been appointed by him.
How Supreme Court Appointments Work
The retirement of Supreme Court Justice Sandra Day O'Connor and the death of Chief Justice William Rehnquist has led to rampant speculation and political maneuvering. The process of appointing replacement justices is underway. This is nothing new -- Supreme Court appointments have been matters of tremendous importance to American law almost since the inception of the United States.
In this article, we'll find out how Supreme Court justices are nominated, who is qualified to serve and how a nominee is approved. We'll also try to sort out the complicated politics that come into play when a justice is nominated.
Supreme Court Basics
The Supreme Court is the highest court in the United States. As the Judicial Branch of the U.S. government, it serves to balance the powers of the Legislative and Executive branches and stands as the final word in any given legal dispute. Once the Supreme Court has made a decision, no other court can review or overturn that decision.
Collection of the Supreme Court of the United States
Supreme Court building in Washington, D.C.
Today, the authority of the Supreme Court is very clear. Roughly 5,000 cases are submitted to the court every year, but it only has time to take on 100 to 150 of them. Usually, the Supreme Court only accepts cases that:
* involve some crucial question related to the U.S. Constitution
* have been appealed from a lower federal court
* involve treason, ambassadors or disputes with other countries
The Supreme Court did not always have this power, however. The Constitution is very vague about the authority of the court, saying only that its "Power shall extend to all Cases, in Law and Equity, arising under this Constitution." The specifics, such as where and when the court would meet, how many justices there would be and exactly what is covered under "cases arising under this Constitution" were left to Congress to decide later. It wasn't until Justice John Marshall's 1803 decision in Marbury v. Madison that the Supreme Court's authority to judge matters of constitutionality was determined.
Collection of the Supreme Court of the United States
The Old Supreme Court Chamber, where the Court sat from 1810-1860
Collection of the Supreme Court of the United States
The Old Senate Chamber, where the Court sat from 1860-1935
Collection of the Supreme Court of the United States
The Courtroom of the Supreme Court Building, where the Court has sat since 1935
When the Supreme Court renders a decision (by a simple majority, or at least five of the nine justices), all other courts in the country follow the precedent set by that decision. So when a case comes before the Court, the ruling affects not only the specific case and law in question, but all similar laws and cases nationwide. For example, if the Supreme Court decided that a law in Maine banning signs on front lawns with anti-war messages was unconstitutional, any state or municipality with the same kind of law would be unable to prosecute anyone for breaking it. Judges all the way from county courts to state supreme courts would look to the Supreme Court's decision and throw out the case because it was based on an unconstitutional law.
Supreme Court justices have a great deal of power for another reason, too: They are appointed for life. That means that they never have to face re-election, and they don't have to make sure that their decisions please the president who appointed them. The average justice serves for 14 years and retires at age 71 [ref].
When a justice retires, he or she usually tries to time it with the Court's summer recess so a replacement can be found before the next session. If a replacement hasn't been found in time, the Court can operate with however many justices are present. If the Court operates with an even number of justices, and a decision results in a tie, the lower court decision in the case is "passively upheld." That is, it is upheld for that particular case, but the Supreme Court doesn't issue an opinion or set any kind of legal precedent. Thus, a similar case could come before the Supreme Court in the future.
Next, we'll find out how Supreme Court justices are nominated and approved.
Who is Qualified?
The president nominates justices to the Supreme Court, subject to majority approval by the Senate. There are no rules spelled out in the Constitution regarding the qualifications of judicial candidates, so technically, the president can nominate anyone he or she wants. However, there are certain traditional attributes that viable candidates for a spot on the Supreme Court should have if he or she is to have any chance of Senate approval.
Collection of the Supreme Court of the United States
Bronze entrance doors to the Court
Collection of the Supreme Court of the United States
The Great Hall, looking toward the Courtroom
Every Supreme Court justice has been a lawyer, and for the last 150 years they have all been graduates of accredited law schools. John Marshall, considered one of the greatest justices to ever serve on the Supreme Court, only attended law school for a few weeks. He studied law as a teenager by borrowing law books from a nearby lawyer (Aaseng, pg. 20).
For the last few decades, almost all Supreme Court nominees have been federal judges.
Nominees generally have participated in politics to some extent, though this can take many forms. Some are involved in unions or other politically active groups, while some served in Congress or were state governors. One chief justice was a former president -- Howard Taft became Chief Justice eight years after he left the Oval Office.
The Nomination Process
Once the president nominates someone (usually with a personal phone call to that person) and releases the name, the Senate holds hearings. At these hearings, senators interview the nominee regarding his or her record as a judge and lawyer and where he or she stands on key issues. If the nominee has any dark secrets or past indiscretions, they are likely to come out in the Senate hearings, as well. Perhaps the most infamous instance of this took place at the confirmation hearings for Clarence Thomas, who was accused of sexual harassment by former colleague Anita Hill. He was eventually confirmed by the Senate despite the controversy. The overwhelming majority of Supreme Court nominees are approved by the Senate -- there have been only 12 rejections out of 148 nominees.
Collection of the Supreme Court of the United States
The Main Reading Room in the Supreme Court Library
Until the 20th century, these hearings were held behind closed doors. In fact, the nomination process was almost completely invisible to the public. The president might seek the advice of friends and associates, but he made the choice on his own and even contacted and interviewed potential candidates on his own time. Today, members of the White House staff and the Justice Department are all involved in the decision, creating lists of candidates and sometimes competing with one and other to promote a particular candidate. Also, since 1930 the confirmation hearings have been completely open to the public. They have been televised since 1981 (Yalof, pg. 15).
There are several ways that a nominee can fail to become a Supreme Court justice. Seven nominees throughout history have simply declined the nomination. If it appears that there is great opposition to a candidate, the president can withdraw the nomination, or the nominee can withdraw him or herself. The Senate can also reject a nominee. Once rejected, a nominee can be submitted again, but this is a foolish course of action for the president unless something has changed that might lead to a different vote by the Senate. In 1836, Andrew Jackson nominated Roger Taney, but the Senate rejected him. A few months later, Jackson nominated Taney again. In that time, Congressional elections had been held, and the Senate was now more favorable to Jackson. Taney was confirmed (Aaseng, pg. 43).
In the next section, we'll navigate the complicated political landscape that surrounds Supreme Court nominations.
The Induction Ceremony
Arthur J. Goldberg, who was appointed by John F. Kennedy in 1962, provides an account of the induction ceremony for new Supreme Court justices.
"It is not generally known that a newly appointed justice takes two oaths. The first is the judicial oath (like the Hippocratic oath of doctors) administered by the chief justice in the robing room in the presence of other members of the Court. The second is administered in open court."
Goldberg chose to take both oaths on a Hebrew bible, because he was Jewish, while other justices choose to take the oath on the official court bible (a Christian bible), which has the signatures of previous justices on the fly-leaf (Goldberg signed the court bible "to maintain continuity."). The open court portion of the ceremony was attended by the President and other government officials. However, Chief Justice Earl Warren did not make any special acknowledgement of Kennedy on that occasion, something Goldberg noted: "I noticed from President Kennedy's expression that he was rather nonplussed and somewhat resentful at not being introduced and called upon to say a few words."
After the taking of oaths, Goldberg was seated at his place on the bench, a long, high table at which all nine justices sit, with the Chief Justice at the center. At this point, Goldberg made a discovery that speaks to the great honor someone feels when they take a position in the highest court in the nation.
"I opened the drawer on the Bench adjacent to my chair to obtain some note paper. To my surprise and delight I found an old dog-eared copy of the Constitution bearing the personal signature of that great Yankee from Olympus, Justice Oliver W Holmes, Jr. Needless to say, this finding made a considerable emotional impact on me. To sit on the seat on the Bench once occupied by that great justice was a singular honor. To find a copy of the Constitution inscribed by Justice Holmes was doubly so."
Source: The Supreme Court Historical Society
It is not a simple matter for the president to make a Supreme Court appointment. Many factors can influence the choice, and the consequences for the president and his or her political party can be dramatic even if the nominee is approved.
First, the president and his advisors must consider the qualifications of the candidates. In recent decades, almost all nominees have been federal judges. However, there is no rule that requires this. Even looking beyond the ranks of federal judges, the list of candidates who are both qualified and likely to accept the nomination may not be extremely long.
The factor that draws the most political and media attention is the ideology of the nominee. The president wants to appoint someone who agrees with his or her views. A president who opposes abortion would want a justice who shares that opposition. A president in favor of legalizing gay marriage would want someone who shares that viewpoint. However, there are a lot of issues to worry about, and it is nearly impossible to find a candidate that is a "perfect fit" on all of them.
Even if the president finds a candidate with the desired outlook on important issues, those issues might come into conflict with the majority in the Senate. If the Senate is ruled by the opposing party, the president will have a difficult time getting a confirmation on a nominee with radical views. If the president's party controls the Senate, it will be much easier to confirm a nominee with views in line with that party, but it could still have a political cost in terms of public approval.
The president's popularity with the public is an important factor. If the president has low popularity, or popularity is evenly split, then pushing through a nominee with views that are perceived as "outside the mainstream" can galvanize opposition to the president and his party, leading to potential defeats in upcoming elections. This also explains why nominees who are named closer to an upcoming election tend to be more moderate -- the president doesn't want to anger the public (Yalof, pg. 6).
The political leaning of the outgoing justice plays a role in the politics of nomination as well. If a retiring justice is a political liberal, Senate liberals might fight a conservative candidate tooth and nail in order not to lose a seat on the Court that supports their ideology. In that case, the president might do better to nominate a moderate candidate. If the outgoing justice is a conservative, however, the Senate liberals might accept a conservative appointment as maintaining the status quo.
Still, as we'll find out in the next section, there's no guarantee that the judges the president does appoint will vote the way he or she thinks they will.
Independent Judges
Even if the president gets his ideal nominee confirmed by the Senate, there are no guarantees that the justice will decide cases in the way the president hopes. Why would justices fail to cooperate with the president's wishes? Because that's their job.
Collection of the Supreme Court of the United States
The Justices' Conference Room, where the Justices meet to discuss cases heard before the Court
Although the president appoints the justice, there is no political loyalty owed to the president. The Supreme Court is equal in power to the Executive branch. The job of the justices is to weigh the law against the rights guaranteed by the Constitution, not to support any one political ideology. Obviously, the personal opinions of the justices come into play, and in many cases, these coincide with those of the president. When that happens, the president gets exactly what he or she intended -- a Supreme Court justice that supports his doctrines and beliefs.
Collection of the Supreme Court of the United States
Main portico and entrance to the Supreme Court
However, when a justice enters the Supreme Court Building, which bears the motto "Equal Justice Under Law," even those who were certain they would bring the weight of their views to the position and reshape the law are often impressed by the honor and responsibility with which they have been entrusted. Justice Felix Frankfurter once said, "As a member of this court I am not justified in writing my private notions of policy into the Constitution, no matter how deeply I may cherish them or how mischievous I may deem their disregard." Many justices have felt the same. The justices that are regarded as the greatest in history are those who were able to examine cases logically, understand both sides of an issue and render judgment based on facts and the law rather than their personal feelings.
Perhaps the best example of judicial independence occurred during the Watergate scandal. The Supreme Court decided that President Nixon had to turn over his White House audio recordings to investigators, discarding his contention that executive privilege should allow him to keep the tapes private. Three of the justices who sided against Nixon had been appointed by him.
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