Supreme Court Appointment Process: Roles of the President, Judiciary Committee, and Senate

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Supreme Court Appointment Process: Roles of the President, Judiciary Committee, and Senate Supreme Court Appointment Process: Roles of the President, Judiciary Committee, and Senate Denis Steven Rutkus Specialist on the Federal Judiciary February 19, 2010 Congressional Research Service 7-5700 www.crs.gov RL31989 CRS Report for Congress Prepared for Members and Committees of Congress Supreme Court Appointment Process Summary The appointment of a Supreme Court Justice is an event of major significance in American politics. Each appointment is of consequence because of the enormous judicial power the Supreme Court exercises as the highest appellate court in the federal judiciary. Appointments are usually infrequent, as a vacancy on the nine-member Court may occur only once or twice, or never at all, during a particular President’s years in office. Under the Constitution, Justices on the Supreme Court receive lifetime appointments. Such job security in the government has been conferred solely on judges and, by constitutional design, helps insure the Court’s independence from the President and Congress. The procedure for appointing a Justice is provided for by the Constitution in only a few words. The “Appointments Clause” (Article II, Section 2, clause 2) states that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint ... Judges of the supreme Court.” The process of appointing Justices has undergone changes over two centuries, but its most basic feature—the sharing of power between the President and Senate—has remained unchanged: To receive lifetime appointment to the Court, a candidate must first be nominated by the President and then confirmed by the Senate. Although not mentioned in the Constitution, an important role is played midway in the process (after the President selects, but before the Senate considers) by the Senate Judiciary Committee. On rare occasions, Presidents also have made Court appointments without the Senate’s consent, when the Senate was in recess. Such “recess appointments,” however, were temporary, with their terms expiring at the end of the Senate’s next session. The last recess appointments to the Court, made in the 1950s, were controversial because they bypassed the Senate and its “advice and consent” role. The appointment of a Justice might or might not proceed smoothly. From the first appointments in 1789, the Senate has confirmed 123 out of 159 Court nominations. Of the 36 unsuccessful nominations, 11 were rejected in Senate roll-call votes, while nearly all of the rest, in the face of committee or Senate opposition to the nominee or the President, were withdrawn by the President or were postponed, tabled, or never voted on by the Senate. (Six individuals, however, whose initial Supreme Court nominations were not confirmed, were later re-nominated and confirmed.) Over more than two centuries, a recurring theme in the Supreme Court appointment process has been the assumed need for excellence in a nominee. However, politics also has played an important role in Supreme Court appointments. The political nature of the appointment process becomes especially apparent when a President submits a nominee with controversial views, there are sharp partisan or ideological differences between the President and the Senate, or the outcome of important constitutional issues before the Court is seen to be at stake. For a listing of all nominations to the Court and their outcomes, see CRS Report RL33225, Supreme Court Nominations, 1789 - 2009: Actions by the Senate, the Judiciary Committee, and the President, by Denis Steven Rutkus and Maureen Bearden. Congressional Research Service Supreme Court Appointment Process Contents Background ................................................................................................................................1 President’s Selection of a Nominee .............................................................................................6 The Role of Senate Advice....................................................................................................6 Advice from Other Sources ...................................................................................................8 Criteria for Selecting a Nominee ...........................................................................................8 Background Investigations .................................................................................................. 11 Speed with Which President Selects Nominees....................................................................13 Recess Appointments to the Court.......................................................................................16 Consideration by the Senate Judiciary Committee .....................................................................17 Historical Background ........................................................................................................17 Senators Nominated to the Court...................................................................................18 Movement Toward Open Hearings ................................................................................20 Nominee Appearances at Confirmation Hearings...........................................................21 Lengthening of Committee Involvement in Appointment Proecess ................................21 Pre-Hearing Stage ...............................................................................................................22 Hearings .............................................................................................................................29 Reporting the Nomination...................................................................................................32 Senate Debate and Confirmation Vote .......................................................................................35 Bringing the Nomination to the Floor..................................................................................35 Criteria Used to Evaluate Nominees....................................................................................38 Filibusters and Motions to End Debate................................................................................43 Voice Votes, Roll Calls, and Vote Margins ...........................................................................46 Reconsideration of the Confirmation Vote ...........................................................................48 Nominations That Failed to Be Confirmed ..........................................................................48 Calling Upon the Judiciary Committee to Further Examine the Nomination ........................52 After Senate Confirmation ..................................................................................................54 Conclusion................................................................................................................................55 Additional Sources....................................................................................................................57 Tables Table 1. Current Members of the Supreme Court of the United States..........................................3 Table 2. Supreme Court Nominations Not Confirmed by the Senate ..........................................50 Contacts Author Contact Information ......................................................................................................60 Congressional Research Service Supreme Court Appointment Process Background The appointment of a Supreme Court Justice is an event of major significance in American politics. Each appointment to the nine-member Court is of consequence because of the enormous judicial power that the Court exercises, separate from, and independent of, the executive and legislative branches. While “on average, a new Justice joins the Court almost every two years,”1 the time at which any given appointment will be made to the Court is unpredictable. Appointments may be infrequent (with a vacancy on the Court occurring only once or twice, or even never at all, during a particular President’s years in office)2 or occur in close proximity to each other (with a particular President afforded several opportunities to name persons to the Court).3 Early in his presidency, Barack Obama was afforded an opportunity to make his first appointment to the Court, On May 1, 2009, Associate Justice David H. Souter notified President Obama of his intention to retire and subsequently, on June 29, 2009, stepped down from the Court. In response, President Obama on June 1 nominated Sonia Sotomayor, a U.S. court of appeals judge, to replace Justice Souter. It was the 159th time a President of the United States has nominated someone to be a Supreme Court Justice. On July 28, following four days of confirmation hearings, the Senate Judiciary Committee, by a vote of 13-6, favorably reported the Sotomayor nomination to the Senate. Following three days of floor debate, the Senate, on August 6, confirmed Judge Sotomayor to the Court by a vote of 68-31. Under the Constitution, Justices on the Supreme Court hold office “during good Behaviour,”4 in effect receiving lifetime appointments. Once confirmed, Justices may hold office for as long as they live or until they voluntarily step down. Such job security in the federal government is conferred solely on judges and, by constitutional design, is intended to insure the independence of the federal judiciary, including the Supreme Court, from the President and Congress.5 A President 1 U.S. Supreme Court, The Supreme
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