Monday, November 5, 2012

Process of Selecting a Supreme Court Justice, in Brief

Although the process of appointing a Supreme Court Justice is a very good and thorough process, it is also synonymous with partisan politics. The process begins with the President of the United States, who nominates a candidate. This procedure is provided for by the United States Constitution within the Appointment Clause (Article II, Section 2, clause 2). It states that the President “shall nominate, and by and with the advice and consent of the Senate, shall appoint…Judges of the Supreme Court.”

Since there are no formal qualifications for a federal judgeship and because the rule of senatorial courtesy is largely inoperative, the President has a much freer hand in naming individuals to the court than in any other nominations. From there the nomination is sent to the Senate Judiciary Committee (SJC) for consideration. The SJC then takes usually about a month to investigate and vet the nominee, which later results in a SJC hearing where Senators question the nominee about his or her background and qualifications. 

The Senate then debates the nomination. The Senate has a practice, known as filibustering, that allows them to hold unlimited debates, usually used to block a nomination. There is, however, Senate rule (XXII) called “the cloture rule” that enables Senators to end a filibuster. The cloture vote requires the votes of at least three-fifths of all Senators (normally 60 votes). At the conclusion of the debate, the Senators cast their votes and the nomination is confirmed with a simple majority vote (or more than half of the valid votes cast). In the case of a tie the Vice President of the Unites States, who presides over the Senate, casts the deciding vote.

Once selected to the Supreme Court, the appointee can hold the office for the rest of his or her life, barring impeachment or retirement. One recommendation of opponents of this rule is to have a fixed term for all Supreme Court appointees that is less than that time period, say ten years. Knowing the power of the position and how even just one appointee can change laws dramatically, there should be a shorter term for all appointees; ten years would be sufficient and fair. This first recommendation will also help with the second recommendation: seniority on a state court level should be a major consideration for service on the Supreme Court. Experience is usually considered a positive quality, but for several reasons, in this case, experience is seen as a detriment to appointments. 

A major reason for this is that those with many years of statewide court experience yield a long record of controversial cases, which will open the nominee up to more Senate scrutiny during confirmation. Another obstruction tool that the Senate uses, much like the filibuster, is the blue slip policy. This process holds that a nominee’s home-state Senator (nominee of lower federal courts) can use a blue slip to oppose a nomination. If the nominee’s home-state Senator does not return the slip or returns an opposition to the nomination, the nomination will most likely go down in defeat. This policy is something that should be discarded, as it seems to be used at this point only for devious political reasons. That is, if the President does not select the individual preferred by a home-state Senator, the offended home-state Senator can delay or prevent committee action on a judicial nomination for almost any personal, political, or arbitrary reason.

If the consideration on whether or not the nominee is a political activist or not was not held as such a big consideration. It is clear that everyone is somewhat of an activist in their views and ideologies. This should not affect their ability to effectively manage their time on the court. After all, their job is to interpret Constitutional law, and their ideologies are naturally going to come into view. This blocking mechanism is only used as a partisan tool to block an appointee that has different political views than they do.


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