The Selection of a New Justice of the U.S. Supreme Court

Justices of the United States Supreme Court are appointed through a process in which the president nominates a candidate who must then be approved by a majority vote of the Senate. While it might appear to be a simple process, it is one that was designed by the drafters of the Constitution 229 years ago to keep in check the powers of each of the three branches of government.

The death of one of the associate justices of the Supreme Court has focused attention on a selection process with which many people might not be familiar due to the surprisingly few vacancies that have been filled during the Court’s long history. There have only been a total of 112 associate justices, including 17 chief justices, appointed to the court in more than two centuries. One reason for this might be that federal judges, including justices of the Supreme Court, hold their offices for life.


The role of the Constitution and the Judiciary Act of 1789

Article III of the Constitution created the federal judiciary by vesting judicial powers in a single “Supreme Court,” but it did not make any provision for the number of justices or the qualifications of those who would be appointed to the position. It was left to Congress to take care of those details, including eventually setting the number of justices at nine, by enacting the Judiciary Act of 1789.

Filling a vacancy on the Court

On those relatively rare occasions when a vacancy occurs on the Supreme Court, Article II of the Constitution gives the president the power to nominate someone to fill the position. The Senate Judiciary Committee holds public hearings to inquire about the background, legal philosophy, and other information about the nominee. Approval by the committee is by a simple majority.

After the nominee clears the committee, the appointment is sent to the full Senate for a vote. Sixty senators must vote to approve the nomination for the person to become the newest associate justice.

The politics of filling a vacancy on the Supreme Court

The drafters of the Constitution did not want the president, as the head of the executive branch of the federal government, to control the Supreme Court and the federal judiciary by having the power to fill judicial vacancies without congressional oversight. The confirmation process increases the chances that a nominee will not be someone so closely aligned with the political and ideological beliefs of the president that he or she will not receive the support of the Senate.

Because the makeup of the Court changes so infrequently, the ideological beliefs of an associate justice can influence the decisions coming out of it for decades. For example, if the Court is made up primarily of justices with liberal points of view, history has shown that its decisions will lean toward an interpretation of the Constitution favoring individual rights and freedoms. This occurred during the 1960s with the Court under Chief Justice Earl Warren. A conservative court, however, might lean more toward decisions favoring the rights of law enforcement and government.

An outgoing president working with a Senate controlled by the opposing political party has little chance of getting a nominee confirmed. Given the fact that only six nominees for a seat on the Supreme Court have won confirmation in an election year since 1900, it is probably more important than at any other time for the president to choose someone who can bridge the ideological gap between conservatives and liberals.

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