Federal Judicial Appointments

The Nomination Process

It is the president’s responsibility to nominate federal judges and the Senate’s responsibility to approve or reject the nomination.

Learning Objectives

Explain how the nomination process represents the systems of checks and balances in the Constitution

Key Takeaways

Key Points

  • The U.S. Constitution establishes ” checks and balances ” among the powers of the executive, legislative and judiciary branches. The nomination process of federal judges is an important part of this system.
  • The Appointments Clause of the United States Constitution empowers the president to appoint certain public officials with the “advice and consent” of the U.S. Senate.
  • Certain factors influence who the president chooses to nominate for the Supreme Court: composition of the Senate, timing of the election cycle, public approval rate of the president, and the strength of interest groups.
  • After the president makes a nomination, the Senate Judiciary Committee studies the nomination and makes a recommendation to the Senate.

Key Terms

  • Veto: A political right to disapprove of (and thereby stop) the process of a decision, a law, etc.
  • Judiciary: The court system and judges considered collectively, the judicial branch of government.
  • Senate Judiciary Committee: A standing committee of the US Senate, the 18-member committee is charged with conducting hearings prior to the Senate votes on confirmation of federal judges (including Supreme Court justices) nominated by the President.

Checks and Balances

One of the theoretical pillars of the United States Constitution is the idea of checks and balances among the powers of the executive, legislative and judiciary branches. For example, while the legislative ( Congress ) has the power to create law, the executive (president) can veto any legislation; an act that can be overridden by Congress. The president nominates judges to the nation’s highest judiciary authority (Supreme Court), but Congress must approve those nominees. The Supreme Court, meanwhile, has the power to invalidate as unconstitutional any law passed by the Congress. Thus, the nomination and appointment process of federal judges serves as an important component of the checks and balances process.

The Appointment Clause of the Constitution

The president has the power to nominate candidates for Supreme Court and other federal judge positions based on the Appointments Clause of the United States Constitution. This clause empowers the president to appoint certain public officials with the “advice and consent” of the U.S. Senate. Acts of Congress have established 13 courts of appeals (also called “circuit courts”) with appellate jurisdiction over different regions of the country. Every judge appointed to the court may be categorized as a federal judge with approval from the Senate.

The Nomination Process

The president nominates all federal judges, who must then be approved by the Senate. The appointment of judges to lower federal courts is important because almost all federal cases end there. Through lower federal judicial appointments, a president “has the opportunity to influence the course of national affairs for a quarter of a century after he leaves office.” Once in office, federal judges can be removed only by impeachment and conviction. Judges may time their departures so that their replacements are appointed by a president who shares their views. For example, Supreme Court Justice Souter retired in 2009 and Justice Stevens in 2010, enabling President Obama to nominate – and the Democratic controlled Senate to confirm – their successors. A recess appointment is the appointment, by the President of the United States, of a senior federal official while the U.S. Senate is in recess. To remain in effect a recess appointment must be approved by the Senate by the end of the next session of Congress, or the position becomes vacant again; in current practice this means that a recess appointment must be approved by roughly the end of the next calendar year.

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Chief Justice Roberts: John G. Roberts, Jr., Chief Justice of the United States of America. Federal judges, such as Supreme Court Justices, must be nominated.

Choosing Supreme Court Justices

In nominating Supreme Court justices, presidents seek to satisfy their political, policy and personal goals. They do not always succeed, as justices sometimes change their views over time or may surprise the president from the start. The following are some other factors that can influence a president’s choice of Supreme Court nominee:

  1. Senate composition: Whether the president’s party has a majority or a minority in the Senate is a factor. In 1990, when the Democrats had a majority, Republican President George H. W. Bush nominated the judicially experienced and reputedly ideologically moderate David H. Souter, who was easily approved.
  2. Timing: The closer to an upcoming presidential election the appointment occurs, the more necessary it is to appoint a highly qualified, noncontroversial figure acceptable to the Senate. Otherwise, senators have an incentive to stall until after the election.
  3. Public approval of the president: The higher the president’s approval ratings, the more nominating leeway the president possesses. However, even presidents riding a wave of popularity can fail to get their nominees past the Senate, as was the case with Richard Nixon and his failed nominations of Clement Haynesworth and G. Harrold Carswell in 1970. So lacking were Carswell’s qualifications that a senator defended him saying, “Even if he were mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation…and a little chance.”
  4. Interest groups: Nominees must be acceptable to interest groups that support the president. They also must be invulnerable to being depicted in ways that would significantly reduce their chances of Senate approval.

Nominations go to the Senate Judiciary Committee, which usually holds hearings. Whether senators should concern themselves with anything more than the nominee’s professional qualifications is often debated. Arguably, “nothing in the Constitution, historical experience, political practice, ethical norms, or statutory enactments prohibits senators from asking questions that reveal judicial nominees’ views on political and ideological issues.” The next step for the Judiciary Committee is to vote on whether or not to send the nomination to the Senate floor. If it reaches the floor, senators then can vote to confirm or reject the nomination, or filibuster so that a vote is delayed or does not take place. Fewer than half of recent nominees to the federal appeals courts have been confirmed.

The Confirmation Process

To be appointed as a federal judge, nominees must be confirmed by the Senate after being interviewed by a Committee.

Learning Objectives

Explain the confirmation process for nominees to the U.S. Supreme Court

Key Takeaways

Key Points

  • In modern times, the confirmation process has attracted considerable attention from special-interest groups, many of which lobby senators to confirm or to reject a nominee depending on whether the nominee’s track record aligns with the group’s views.
  • The modern practice of the Committee questioning nominees on their judicial views began with the nomination of John Marshall Harlan II in 1955. The nomination came shortly after the Court handed down the landmark Brown v. Board of Education decision.
  • A simple majority vote is required to confirm or to reject a nominee. Once the Committee reports out the nomination, the whole Senate considers it. Rejections are relatively uncommon; the Senate has explicitly rejected twelve Supreme Court nominees in its history.
  • Once the Senate confirms the nomination by an affirmative vote, the President must prepare and sign a commission and have the Seal of the United States Department of Justice affixed to the document before the new Justice can take office.

Key Terms

  • John Marshall Harlan II: An American jurist who served as an Associate Justice of the Supreme Court from 1955 to 1971.
  • interest groups: The term interest group refers to virtually any voluntary association that seeks to publicly promote and create advantages for its cause. It applies to a vast array of diverse organizations. This includes corporations, charitable organizations, civil rights groups, neighborhood associations, and professional and trade associations.
  • Senate Judiciary Committee: A standing committee of the US Senate, the 18-member committee is charged with conducting hearings prior to the Senate votes on confirmation of federal judges (including Supreme Court justices) nominated by the President.

Background

Federal judicial appointments must go through a confirmation process before they are approved. During this process, a committee called the Senate Judiciary Committee conducts hearings, questioning nominees to determine their suitability. At the close of confirmation hearings, the Committee votes on whether the nomination should go to the full Senate with a positive, negative, or neutral report.

In modern times, the confirmation process has attracted considerable attention from special-interest groups, many of which lobby senators to confirm or to reject a nominee depending on whether the nominee’s track record aligns with the group’s views.

The Committees and Confirmation Process

The Senate Judiciary Committee personally interviews nominees, a practice that is relatively recent and began in 1925. The modern practice of the Committee questioning every nominee on their judicial views began with the nomination of John Marshall Harlan II in 1955. The nomination came shortly after the Court handed down the landmark Brown v. Board of Education decision, and several Southern senators attempted to block Harlan’s confirmation – hence the decision to testify.

A simple majority vote is required to confirm or to reject a nominee. Once the Committee reports out the nomination, the whole Senate considers it. Rejections are relatively uncommon; the Senate has explicitly rejected only twelve Supreme Court nominees in its history.

It is also possible for the President to withdraw a nominee’s name before the actual confirmation vote occurs. This usually happens when the President feels that the nominee has little chance of being confirmed. Supreme Court nominations have caused media speculation about whether the judge leans to the left, middle, or right. One indication of the politicized selection process is how much time each nominee spends being questioned under the glare of media coverage. Before 1925, nominees were never questioned; after 1955, every nominee has been required to appear before the Senate Judiciary Committee and answer questions. The number of hours hours spent being grilled has increased from single digits (before 1980) to double digits today.

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The U.S. Supreme Court: The United States Supreme Court, the highest court in the United States, in 2010. Top row (left to right): Associate Justice Sonia Sotomayor, Associate Justice Stephen G. Breyer, Associate Justice Samuel A. Alito, and Associate Justice Elena Kagan. Bottom row (left to right): Associate Justice Clarence Thomas, Associate Justice Antonin Scalia, Chief Justice John G. Roberts, Associate Justice Anthony Kennedy, and Associate Justice Ruth Bader Ginsburg.

Once the Senate confirms the nomination by an affirmative vote, the President must prepare and sign a commission and have the Seal of the United States Department of Justice affixed to the document before the new Justice can take office. It is this act of the President which officially commences the beginning of an individual Justice’s tenure.