Tag Archives: US Supreme Court

Seven Steps to the U.S. Supreme Court: A quick look at the nomination process

Posted on by

By Victoria Szymczak, Library Director

US Supreme Court building

The Nominating Authority

To be appointed to the U.S. Supreme Court, a candidate must be nominated by the President and then confirmed by the Senate.  Article II, section 2 of the Constitution states that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … Judges of the Supreme Court…” U.S. Const. art. 2 § 2, cl. 2.  Scholars have debated whether the “advice” of the Senate in this matter is binding on the Presidential nomination or appointment, or if it is merely an advisory role that they take on.

Seven Steps to the U.S. Supreme Court

  1. The President consults with his advisors, including Senators, to develop a shortlist of candidates that he will vet and interview before announcing a nomination.  Both the public and private qualifications of each potential nominee will be investigated by government officials.  The President is not required to reveal the names of the people he is considering for the nomination.  There are no deadlines for how quickly a vacancy needs to be filled or for this process to be completed.  A nomination could be announced within days of a vacancy or may take months.  Outside factors, including political considerations or advance knowledge of a vacancy, will affect the speed of this process.

  2. After the President nominates a candidate and informs the Senate, the Senate Judiciary Committee considers the candidate’s qualifications.  This step in the process is not a requirement, but since the Civil War, it is the accepted practice.  The Senate Judiciary Committee is composed of Senators from both the Democratic and Republican political parties.  Currently, the Committee is current chaired by Senator Lindsey Graham (R- South Carolina).  There are ten other Republican Senators and ten Democratic Senators, including Hawaii’s Senator Mazie Hirono that make us the remaining members of this Committee.

    At this time, the President formally submits a nomination to the Senate the nominee is evaluated by the American Bar Association’s Standing Committee on the Federal Judiciary. The committee restricts its evaluation to the candidate’s professional qualifications and does not consider a nominee’s philosophy or ideology.

  3. The Senate Judiciary Committee will schedule a hearing to consider the merits of the nominee.  Before the hearing, the Committee will collect the information it will consider when interviewing the nominee.  They may conduct their own investigations into the public and private life of the candidate.  The nominee will also prepare for his or her appearance before the Senate Judiciary Committee. 

  4. During the hearings, witnesses to support and oppose the candidate will testify.  The Senators on the Committee will have the opportunity to hear the witnesses and question the applicant on the information collected.  There are no exact criteria or qualifications for U.S. Supreme Court Justices.  In Federalist Paper 78, Alexander Hamilton created the historical expectation that judges would act impartially and with integrity when he stated that those selected to serve “unite the requisite integrity with the requisite knowledge” to “qualify them for the stations of judges.”  There is a historical expectation that nominees will possess stellar legal qualifications evidenced by service on a lower court bench, legal scholarship, and/or a respected private practice.  A Supreme Court justice is not required to have a law degree; however, to date, all of the justices have held a law degree.

  5. Following the hearings by the Senate Judiciary Committee, the Committee members vote on the nomination.  They have three options:  confirmation, rejection, or no recommendation.  Their decision is sent to the full Senate for debate. 

  6. The full Senate debates the nomination following the Rules of the Senate.  Currently, the question can be called and debate halted with a simple majority vote (51 to 49) to end debate.   (In April 2017, the Senate abandoned a practice known as filibustering which allowed endless debate on the floor and was often employed by the minority party to delay or defeat measures up for a vote, including Supreme Court nominations.  A cloture vote of 60 senators – 2/3ds majority – was needed to end debate.)

  7. When the debate ends, the Senate votes on the nomination. A nominee needs a simple majority of the Senators present and voting in order to be confirmed. If there is a tie, the Vice President casts the deciding vote.

More

For more detailed and fascinating reading about the U.S. Supreme Court nomination process, please consult these excellent, free, online resources.  More through reading is available through our Primo Discovery platform.  Search for United States Supreme Court in a subject line.  For political influence on the Court and the nomination process, search United States Supreme Court and political questions and judicial power.  Don’t forget to sort by date to find the newest publications on this topic.

The Supreme Court is Getting Ready to Rock-N-Roll

Posted on by

In case you hadn’t noticed, the U.S. Supreme Court is back in session. For a quick preview of the many blockbuster cases on the calendar this session, you might want to take in this Law 360 Pro Say Podcast: https://www.law360.com/in-depth/articles/967263?nl_pk=12824ff8-eeda-4c14-bbd7-cadc7f92d867&utm_source=newsletter&utm_medium=email&utm_campaign=in-depth (If you do not know how to activate your Law 360 access, contact Brian Huffman!)

The Court is already underway with the Notorious RGB leveraging a constitutional smack down on new Justice Neil Gorsuch in Gill v. Whitford (a/k/a the partisan gerrymandering case). Attorney Smith was answering Justice Ginsburg question on how redistricting laws created one party rule in some states. Justice Gorsuch interrupted and diverted attention away from an equal protection argument to a Republican form of government clause theory supported by constitutional textualism. Justice Gorsuch said:

“… where exactly do we get authority to revise state legislative lines? When the Constitution authorizes the federal government to step in on state – state legislative matters, it’s pretty clear.  If you look at the Fifteenth Amendment, you look at the Nineteenth Amendment, the Twenty-Sixth Amendment, and even the Fourteenth Amendment, Section 2, says Congress has the power, when state legislators don’t provide the right to vote equally, to dilute congressional representation. Aren’t those all textual indications in the Constitution itself that maybe we ought to be cautious about stepping in here?” – Gill v. Whitford transcript, page 59, courtesy of Scotus.

Justice Ginsburg intervened in the Gorsuch/Smith back and forth asking the Court:  Where did one person/one vote come from? She was referring to the 1963 Reynolds v. Sims Supreme Court decision. One person/one vote was read into the Constitution by Chief Justice Earl Warren and it is not in the Constitutional document itself, upending Justice Gorsuch’s textualism argument.  You can actually listen to the oral arguments on the Oyez website!

Wowza!  The Supreme Court is getting ready to rock-n-roll!

I know you want to keep track of all the exciting Supreme Court happenings. Here is a short list of some of my favorite Supreme Court resources. NB: If is it marked with $$$, it indicates that this is a subscription database so you will either need a username and password, or perhaps proxy access if you are trying to open the page from off campus.

BTW, the NYT has a good article on the “new math” of gerrymandering and how you might measure the effect of redistricting using one method called the “efficiency gap.”

Daily News

Lyle Dennison Law News, http://lyldenlawnews.com/

New York Times Supreme Court News Page: https://www.nytimes.com/topic/organization/us-supreme-court $$$

iScotus Now, http://blogs.kentlaw.iit.edu/iscotus/

Scotus Blog, http://www.scotusblog.com/

Supreme Court Brief, http://www.nationallawjournal.com/supremecourtbrief $$$

Supreme Court Dispatches, Slate News, http://www.slate.com/articles/news_and_politics/supreme_court_dispatches.html

 

More General Coverage

Appellate, http://www.law.com/practice-areas/appellate $$$

BloombergLaw, United States Law Week, $$$

Reuters Supreme Court News, http://www.reuters.com/subjects/supreme-court

NPR Stories About the Supreme Court: http://www.npr.org/tags/125938785/supreme-court

Oyez, https://www.oyez.org, Providing the facts of the case, question presented and conclusion for all cases beginning in 1789.  Oyez also has select audio coverage of oral arguments.

Washington Post’s Courts and the Law: https://www.washingtonpost.com/politics/courts-law/?utm_term=.c9df6c046334,

Supreme Court web site, https://www.supremecourt.gov/

 

Deeper Analysis

Merits, from Scotus Blog, http://www.scotusblog.com/case-files/terms/ot2017 – you might also be interested in their stats pack page: http://www.scotusblog.com/statistics/

Preview of United States Supreme Court Cases (via Hein),  Eight issues a year analyzing the court’s decisions.

1)  http://heinonline.org/HOL/Index?index=previewa&collection=preview $$$

2)  Via the ABA web site: https://www.americanbar.org/groups/public_education/publications/preview_home.html

3) Westlaw, http://lawschool.westlaw.com $$$