Some Thoughts on the Appointment Process

After Justice Scalia’s untimely passing nearly two weeks ago now, the entire political system fell into chaotic disarray. Just as soon as the news hit, congressional Republicans vowed to block any appointment until the next presidential term. Liberals found clips of Senate Majority Leader Mitch McConnell (R-KY) disagreeing with himself while conservatives found the equivalent for Vice President (then Senator) Joe Biden (D-DE) in 1992. Sides have been throwing out ideas related to precedent, democracy, and everything in between. Here’s just a bit of guidance that can provide some clarity on the matter.

First, how does this process work? 

Article II of the Constitution gives the president the authority to appoint Justices to the Supreme Court, with the advise and consent of the Senate. Ultimately, the president picks an appointee, gives it to the Senate Judiciary Committee, who then is tasked with consenting. If the Justice gets past this stage, they move on to the full Senate, who votes on the matter. A simple majority is needed to get confirmation, but with a filibuster, realistically the appointee now needs 60 votes.

Since Supreme Court Justices are guaranteed their office for life, given good “behavior,” Justices often choose when to retire and do so at the end of the term, in late June. This gives the president a few months, before the term begins again in October, to find a replacement. Given the increasing time it takes to be confirmed, it seems clear that even those three months are not enough time. Still, if the president and Senate are in agreement, and the nominee is highly qualified, the vote shouldn’t be much of a problem.

Second, what’s going on this time?

Well, Justice Scalia didn’t choose his retirement. He died unexpectedly. Certainly this is a conceivable scenario; in fact it happened 11 years ago, when Chief Justice William Rehnquist died in early September 2005. But this was immediately after the 2004 election, in which Bush had brought with him a majority of the Senate (55 R, 44 D, 1 I). This was also before the term started, which gave the Senate a clear deadline, and Roberts was confirmed within the month.

Scalia’s death came at possibly the worst time. Many of the important cases have already been heard, and, quite conceivably, decided, but if they haven’t been released yet, Scalia’s vote is not counted, regardless of whether the case has been heard. And since the Court isn’t going to rehear this term many of these cases, the Republican-led Senate is in no rush to confirm an appointee. The problem is that this still leaves practically all of next term to have only eight Justices sitting. That’s quite unfortunate and essentially renders void all of the “sexy” decisions this term and next, which are plentiful.

Third, what’s the precedent for this?

This is pretty rare. Republicans say that there is an 80-year precedent of not appointing Supreme Court justices in an election year. That’s technically true, but not in the true sense of the word “precedent.” It’s just never happened before. Supreme Court vacancies are far from a common occurrence. Since Ruth Bader Ginsburg’s appointment in 1993, there have been five appointments. Five appointments over 23 years? Really not that common, especially given that only one of those appointments has been because of a death – otherwise, Justices carefully planned when they would retire. So it’s not fair to say that there is a strong precedent of not appointing in election years.

Additionally, while we haven’t had an appointment during an election year, we have had confirmation. Folks on the left will say that Justice Anthony Kennedy, the current swing vote on the Court, was nominated by President Reagan in 1988 (his fourth nomination. For the record, this is Obama’s third vacancy). 1988, of course, was Reagan’s last year in office. Yes, Kennedy was confirmed in that year, but he was nominated in 1987, and the election cycle was shorter, so during the vacancy, we wouldn’t have been in the same election climate we’re in now.

I just want to say, as an aside, it’s frustrating for me as a partisan to see my party historically make claims against this simple idea. I am ashamed that our Vice President would suggest that we delay the appointment until after the election – unprompted, mind you – but I’m even more concerned about how I would personally respond if, instead of a Democrat president, we had a Republican with a vacancy. This troubles me because I am aware my current thinking is at least politically charged a bit, but it’s something with which I am grappling.

So, what does the Constitution say about this?

Article II, Section 2, Clause 2 of the Constitution states “…and [the president] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint…Judges of the supreme Court…”

This lays out two responsibilities: the president proposes new Justices, and the Senate advises and consents.

How does this fit in to what’s happening now?

In 2012, President Obama was re-elected, so, obviously, he is the president. Two years later, thanks to a dismal turnout by young voters, as always in midterm elections, Democrats lost their control of the Senate, and now there is a Republican majority there. This means that each senate committee is chaired by a Republican, not a Democrat.

Here’s how this all should work: The president submits a name to the Senate Judiciary Committee, and they vote for or against the nominee. Usually, because the Supreme Court is full of really, really smart people who transcend politics (and, though many are really cynical, this ends up being the case often), these hearings are non-controversial, unless the candidate is truly extreme (see: Robert Bork). If the Judiciary Committee does not like the nominee, they can vote against them, and so can the Senate if they disapprove. But this requires knowing something about the nominee (i.e. who the nominee actually is).

President Obama has said he will submit a qualified nominee, but the Senate Judiciary Committee has told Obama that they won’t even hear the nominee until January 20, 2017, when the new president assumes their office. This is utterly ridiculous. Yes, Justice Scalia was very consequential, and with an Obama appointee, theoretically, the Court will become more liberal. But that’s just the game. In the late 1970s, for instance, seven of the nine Justices were appointed by Republican presidents: Brennan (Eisenhower), Stewart (Eisenhower), Burger (Nixon), Blackmun (Nixon), Powell (Nixon), Rehnquist (Nixon), and Stewart (Ford). Only White (Kennedy) and Marshall (Johnson) represented the Democrats. Yet apparently now balance seems to a major concern.

If the Senate votes against a nominee, a practice that is fairly uncommon, they should face the consequences. But simply not hearing a nominee is irresponsible: the president has a year left in his presidency. Cutting off a president’s responsibilities for the sake of an election? Now that’s unprecedented.

Should the public be involved?

Here’s where the Republicans think they’ve got a winning argument but really have less than that. Republicans, in their letter to President Obama, note that Americans now have a unique opportunity to control the President, the Congress, and the Court. But that’s not our responsibility. The Constitution gives that authority to the President and the Senate, which we are supposed to consider when voting for those offices. Only those in the extreme legal elite are at all cognizant of who would make a good Supreme Court justice; how are average Americans to know the intricacies of bankruptcy law or tort law? People often forget that the Court hears about 80 cases per term, not the two or three major ones we hear about in the end, and understanding the Supreme Court and nominees requires a substantive knowledge of many of these issues. Further, we don’t even get any candidates. In other words, if I vote for Ted Cruz, I don’t know who he’s going to select, I just vote to relay my trust in his judgment for who would be on the Court. But that’s exactly what we did in 2012. This argument just makes very little sense.

What Can I Do?

Contact the people on the left (column, not ideologically) and demand they hear Obama’s nominee:

It’s their, and our, duty.


One thought on “Some Thoughts on the Appointment Process

  1. Well written. Republican or Democrat, the
    constitution comes first and the duties of the senate are quite clear. In refusing to hold hearings senate republicans are denying the citizens the opportunity to hear the nominee and the opportunity to see their senators recorded vote on the nominee. This bickering has to end. In the event the senate refuses to hold hearings, I’m hopeful that the president will seek a writ of mandamus from the Supreme Court to compel a hearing. We appear to be at the early stages of constitutional crisis. Regarding Biden, he was wrong to say what he did in the past, but his comments were inconsequential as no nominees came forward subsequent to those comments.


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