Who Selects the Supreme Court Justices? A Primer on the Judicial Branch

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The Supreme Court

Although Supreme Court justices are generally not as visible as Congressional leaders, and in theory should be nonpartisan, they are some of the most influential people in the American political system. Not only is the SCOTUS (Supreme Court of the United States) the court of last resort - there is no higher court to which decisions can be appealed - but they act, at least in theory, as a check on the power of Congress and the president. So who selects the Supreme Court justices, and who qualifies to sit on the court?

Appointment of Judges

Under article two of the United States Constitution, the president is granted the power to appoint justices, “with the advice and consent of the senate”. Although Supreme Court justices have traditionally been lawyers, this is not a requirement. Indeed, the Constitution sets no qualifications for service - only who selects the supreme Court Justices. Accordingly, the president may nominate anyone he chooses.

After being nominated, a candidate must be confirmed by the Senate. This takes place in several steps. First, the Senate Judiciary Committee conducts hearings; it is the job of the committee to make a recommendation to the full Senate as to whether the nominee should be approved. Since 1955, the committee has taken up interviewing nominees as well as debating their qualifications.

Confirming a justice to the court requires a simple majority vote of the Senate.

Recess Appointments

Although all federal justices must be confirmed by the Senate, they can be temporarily appointed by the president when the Senate is in recess. Such an appointee, however, holds office only until the end of the next session of the Senate. The Senate considers recess appointments to be an end-run around their prerogative to give “advice and consent” and generally will refuse to confirm these appointments. Accordingly, such appointments are fairly rare.

Rejecting Nominees

Traditionally, the president’s nominees to the court are confirmed by the Senate. Only twelve have been voted down in the history of the republic. In addition, seven people declined the nomination, eight nominations were withdrawn, and in eight cases the Senate either took no action or indefinitely postponed the vote.

Qualifications of Justices

As mentioned, there is no constitutional requirement to serve as a Supreme Court Justice; however, it is generally understood that nominees must possess a keen legal mind, and thorough knowledge of the law is naturally seen as a plus. Although the court is nominally nonpartisan, presidents naturally nominate those they expect to be sympathetic to their political views, and partisan politics has definitely played a role in the nomination and evaluation of judges.

Generally nominees with outstanding qualifications have no problems being approved by the Senate. Of the last four people nominated, three currently serve on the court. Anthony Kennedy was confirmed 97-0, while Chief Justice John Roberts was confirmed 78-22. Harriet Miers, George W. Bush’s White House Counsel, was nominated but was widely seen as unqualified. Her nomination continued to move forward until it was revealed that she had once supported a Democratic candidate, at which point she lost Republican support and Bush withdrew her nomination. Samual Alito was then nominated and confirmed on a 58-42 vote.

Justice for Life

Justices, unless given recess appointments, hold their offices “during good behavior”. In practice, this means that unless a judge dies or chooses to retire, he holds his seat for life unless he is impeached. No Supreme Court Justice has ever been successfully impeached. Samuel Chase was impeached by the House in 1805. He was, however, acquitted by the Senate.

As Justices may serve indefinitely, a judicial appointment is an opportunity for the president to make a decision that can have repercussions extending far beyond his term. Accordingly, presidents have lately tended to nominate younger justices (so that they can serve longer) and the nomination fights have become increasingly partisan, with prospective justices refusing to comment on anything they might be called to rule upon, lest it be used to derail their nominations.