US Judicial Appointments

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What happens when a vacancy occurs

When a vacancy occurs in the Supreme Court through retirement of death of an existing justice, the president nominates a replacement, who is rated by the American Bar Association as either:

  • Well qualified
  • Qualified
  • Questionable 

The nominee is then extensively questioned, mainly by the Senate Judiciary Commission where they are voted and finally debated on by the whole Senate floor. 

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Checks and Balances of this Process

The ratification of a judicial appointment of a president by the Senate acts is a classic example of the checks and balances that the Founding Fathers built into the US Constitution. If the president alone could appoint judges, they could misuse this power to put friends or political allies on the SC.

Similarly, if the Senate alone had this power, the majority party could appoint on of their own members.

Either way, the independence of the judicial branch would be compromised. 

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Examples of Presidential Judicial Appointments (1)

Robert Bork was nominated by President Reagan in 1987. Very conservative "originalist" views and previous work in the Nixon WH provoked widespread opposition from many quarters, including Senator Edward Kennedy and the American Civil Liberties Union. The Senate voted 42-58 to reject his nomination. 

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Presidential Judiciary Nominations Examples (2)

Clarence Thomas was nominated by President George H. W. Bush in 1991.His nomination hearings were notable for accusations of sexual harrassment from a female former colleague. Despite only being rated as "Qualified" by the ABA, Thomas was confirmed 52-48 by the Senate, becoming the only 2nd African-American to sit on the Supreme Court. 

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Presidential Judiciary Nominations Examples (3)

Ruth Bader Ginsburg was nominated by President Clinton in 1993. A well-known campaigner on women's rights, she sailed through the Judicial Committee hearings and was confirmed 96-3. becoming only the 2nd female Supreme Court Justice 

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Presidential Judiciary Nominations Examples (4)

John Roberts was originally nominated by President George W. Bush to replace Sandra Day O'Connor on her retirement in 2005, but when William Rehnquist died on 5th September 2005, Bush nominated Roberts as Chief Justice instead. He was confirmed 78-22

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Presidential Judiciary Nominations Examples (5)

Harriet Miers was nominated by Bush for the vacancy caused by Sandra Day O'Connors retirement in 2005. Miers, who had been Bush' personal legal adviser in Texas, had no judicial experience and her nomination was greeted with ridicule, even among Republicans. Her ABA rating was "Questionanle" and she wisely withdrew before facing the Judicial Committee

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Presidential Judiciary Nominations Examples (6)

Samuel Alito was nominated by Bush after Miers' withdrawal. Though better qualified than Miers, Alito was a controversial choice as he was more conservative than the swing justice, O'Connor, he was replacing. He was confirmed by the fairly small margin of 58-2. 

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Presidential Judiciary Nominations Examples (7)

Sonya Sotomayer was President Barack Obama's first nomination to the Supreme Court in 2009, when David Souter announced his decision to retire. Sotomayor, though still relativel young, had extensive experience in the Courts of Appeals. She secured confirmation by 68-31 and became the first Hispanic Supreme Court Justice. 

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Presidential Judiciary Nominations Examples (8)

Elena Kagan was nominated by President Obama to replace the long-serving John Paul Stevens in 2010. Kagan had never sat as a judge in a lower court, but as a former cleck to Justice Thurgood Marshall, a former Dean of Harvard University Law School and Solicitor-General in Obama's administration, having an impressive CV and an excellent legal mind. She was confirmed 63-67. 

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Reasons for Politicised Appointment Process

  • The SC's power to shape public policy in controversial areas (e.g. campaign finance - Citizens United vs FEC; abotion - Gonzalez vs Carhart; healthcare - ACA cases; affirmative action - Fisher vs University of Texas; gay marriage - Windsor v United States)
  • The general polarisation of US Politics
  • The fine balance between liberal and conservative justices on the court and the possibility that a new appointment may change this balance 
  • Increased life expectancy and the likelihood that justices may serve for 3 decades once appointed (e.g Stevens 1975-2005, Scalia 1986-present)
  • A succesion of Presidents making the nominations (Clinton, Bush, Obama) have been seen as divisive, polarising figures. 
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Examples of Controversial Appointments

  • Clarence Thomas because of doubts about his qualifications and the allegations of sexual harrassment that surfaced during his Jud Com hearing 
  • Harriet Miers because of her personal ties to President Bush, her lack of judicial experience and her "Questionable" ABA rating 
  • Samuel Alito because he was clearly more conservative than the swing justice O'Connor he was replacng and hence his appointment affected the political balance on the court
  • Elena Kagan as she had never sat as a judge in a lower court
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