The Selection and Description of Supreme Court Justices - Case Study Example

Selection of US Supreme Court Justices – Procedures and Politics Introduction The selection and of Supreme Court Justices is embodied in the Article 2 and 3 of the US Constitution as mere phrases: “The President…. shall have Power, by and with the Advice and Consent of the Senate…shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law….” (“U.S. Constitution Article 2 Section 2”) and “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office.” (“U.S. Constitution Article 3 Section 1”) The US Supreme Court Justice System is on par in terms of power and influence as the President and the Senate. The US Supreme Court is mandated to uphold the Constitution in any issue. It is to determine the constitutionality of a ruling rather than the determination of innocence or guilt, or the legality of an issue. It is thus of extreme importance that a Supreme court judge be thoroughly cognizant of the US Constitution and to be able to set aside ideologies whether social, political or cultural. Special interest groups should have no hand in influencing the selection process. (Salvato, 2005) The first nine Supreme Court Justices were named in 1789, but it was not until 1816 that the Senate authorized the formation of the Committee on the Judiciary for the explicit purpose of considering and confirming (or rejecting) the nomination of an associate or chief justice for the Supreme Court. It was only at this time that some sort of check and balance was deemed necessary because of the lack of specificity of the terms of the Constitution regarding the selection of justices. It gave the president too much leeway in selecting a nominee and left the confirmation of such an important post to the whims of a directionless Senate, who is supposed to “advice and consent”. Note that deliberate and investigate is not included in this definition of the Senate’s role in the justice selection. However, wise heads determined in 1816 that even if it was not subscribed in the Constitution, it should be established to confirm the legitimacy of the appointment. The system worked quite well but in 1987 the proceedings became quite contentious enough to arouse public interest. It was in the nomination of Robert Bork and the Roe v. Wade case that the Senate hearings became a matter of public debate. However, no other case has attained this level of public notice with regard to Supreme Court Justice selections since and between 1994 and 2005 was quiet because it was time that the nine members of the Supreme Court remained constant. This ended with the retirement of Justice Sandra Day O’Connor in July of 2005 and the death of Chief Justice William Rehnquist in September of that same year. President Bush found himself in a position compelled to name successors to the two vacancies. President Bush complied by naming John Roberts and first Harriet Miers and then Samuel Alito to fill the positions. (Dorsen, 2006) This sparked renewed interest in the process of selecting and confirming justices to the Supreme Court. This paper seeks to provide an overview of this process as well as the political aspects that has influenced the process in recent years. A brief description of the nominations of Roberts, Miers and Alito will serve as case studies to illustrate the current procedures and practices. The Process and the Politics Federal judges are assured of their positions for life or until resignation “during good behavior” as mandated by Article II of the US Constitution. This is to ensure that confirmed judges are free to rule on issues free from the influence of prevailing political agendas. They have no need to please the powers-that-be because short of impeachment, their position is assured. No Supreme Court justice has yet been impeached, although in 1804 the House of Representatives moved for the impeachment of Justice Samuel Chase because he was deemed to of the policies of Thomas Jefferson. The Senate acquitted him and Justice Chase continued to serve until his death in 1811. His acquittal is seen as an affirmation that the Supreme Court was not subject to partisan influence. In the case of Justice Abe Fortas, who resigned before impeachment charges could be completed against him, it was in light of alleged accurate charges of financial and political corruption in 1968. (Dorsen, 2006; Rutkus, 2005) The relevant part of the US Constitution which dictates the process in the selection of a Supreme Court judge is in Article II, Section 2. The steps are as follows: 1. The U.S. President will nominate a candidate, usually after consultation with the Senate The criteria for Supreme Court Justice nomination consist primarily of professional merit, such as previous performance in a legal capacity as a lawyer or lower court judge. A presidential nominee should also have some political adviser or mentor who would have some influence in effecting the nomination. In some cases, the political mentor could be a member of the Senate, which body is typically consulted by the President in the matter of nominations. Or the nominee could actually be a protégé of the president, in which case the risk of being accused of cronyism is high, even when later events prove the merit of the nominations. Sometimes nominations result as a result of some political payback, such as in the case of Sen. Hugo L. Black (D-AL) in 1937 and Robert Jackson during the time of Theodore Roosevelt. Both these men were staunch supporters of Roosevelt and often acted as advisers. In Dwight Eisenhower’s case, his nomination of Governor Earl Warren of California was as payment to a debt incurred during the Republican presidential nomination in 1952, in which Warren with the California delegates supported his claim. Warren succeeded in being confirmed as Chief Justice and proved to be divergent from the position of Eisenhower’s administration. (Dorsen, 2006) 2. The nomination is then handed over the Senate Judiciary Committee for consideration. The committee convenes to hold a hearing and usually takes about 30 days to investigate the qualifications and records of the nominee. During this time, the views of parties opposing and supporting the nominee are heard, and the nominee is brought before the committee to justify the nomination. The case of Robert Bork was one for the books with regard to Senate Judiciary Committee hearings. A nominee of then President Ronald Reagan, Bork was slated to take the vacancy left by Justice Lewis Powell. Bork was eminently qualified, having served on the Court of Appeals, written several peer-reviewed articles on constitutional law and risen to the position of Solicitor General. However, his well-known, extremely conservative views on abortion had special interest groups lobbying against his confirmation, many fearing his vote would tip the scales against the landmark abortion rights case Roe v. Wade. These special interest groups, including the American Civil Liberties Union, claimed Bork was opposed to civil liberties. Such opposition resulted in the rejection of Bork’s nomination. (Dorsen, 2006) 3. The committee then votes and relays the result of the votes and recommendation before the full Senate, which then deliberates on the nomination. This debate has no time limit (this is also known as filibustering). A majority vote is needed to end the debate, either three-fifths of the Senate or 60 senators, which is also referred to as the cloture vote. Otherwise it may continue without limit. Until early in the 20th century, the final decision by the Senate typically took about seven days. However, more recently, it could take the Senate as much as nine weeks, especially between 1967 and 1994. This slow down in the process is attributed to several events. One is the “Warren Court” in the 1950s in which the significance of the all-encompassing nature of the Supreme Court mandate became most apparent under then-Chief Justice Earl Warren, a known liberal, who led to many profound changes in American politics and society. It highlighted the desire of the public, typically suspicious of change, to place control in the hands of people who reflect their own ideologies. Moreover, the Senate had gotten into the habit of close scrutiny of presidential nominations in the 1980s, perhaps because of the divided nature of the government in recent history, where one party was in the White House and the other party ruled the Senate. The type of questions the Senate hearings could ask the nominee had been under issue. While it is generally accepted that asking the nominee for their opinion regarding an ongoing or forthcoming case is inappropriate, it is acceptable to ask the nominee regarding their judicial philosophies. The answers to such questions could quite clearly indicate the kind of vote the nominee would actually cast in a specific case. (Dorsen, 2006) 4. At the end of the debate, a straight majority of the Senators present must vote for a nominee to confirm the nomination. In the event of a tie, the Vice President will cast the deciding vote. (“U.S. Supreme Court nominations,” 2007) In terms of success, nominations to the Supreme Court have set quite a good record since the first nine were appointed in 1789. Of the 154 nominations received (157 including Roberts, Miers and Alito), 120 have been confirmed (not including Roberts and Alito). Of the unsuccessful nominations, most were due to withdrawals by the President, postponement or non-presentation to the Senate. This is seen as a result of a flaw in the system of nomination, in which the President may or may not consult the Senate. The nomination and appointment of Judge Samuel Alito for Supreme Court judgeship is considered to be an illustration of this flaw shared by the US system of Supreme Court appointments and Australian appointment process which is the lack of public transparency in the criteria for judicial merit. There is no non-executive input for the source of the democratic authority of the candidate. The examples of Samuel Alito and Harriet Miers, both nominees of President George W. Bush relied on opposing justifications as to the merits of their nominations. Miers been White House Counsel prior to the nomination, and the lack of judicial exposure was deemed to be an advantage. However, the Senate members appeared to disagree and she withdrew from her nomination during the Senate hearings. Alito on other hand, was an old hand at the judicial system, having been a sitting judge with the Court of Appeals for 16 years and was confirmed for the position as associate justice for the Supreme Court. However, the fact remains that the merits of the nominations has no clear judicial basis. (Horrigan, 2006) Moreover, judicial competence is not a prerequisite for good performance as a Supreme Court justice, as exemplified by the service record of Charles Evan Hughes and William Rehnquist. (Dorsen, 2006) This tug-of-war between a nominee’s professional qualifications and ideological stand has intensified because of the current composition of the Supreme Court, which is composed entirely of former federal judges. The tendency is to lean towards the conservative side of ideology, and only on occasion does liberal inclinations surface. While this may more or less ensure the continuation of the ideological stream because sitting judges have demonstrated their ideological stance in numerous occasions and are less likely to “switch,” there is a decided loss in terms of diversity and quality of the Court because it those in private practice, public positions such as senators or otherwise not sitting judges are not considered for nomination, no matter how qualified they are. Diversity is especially important at the Supreme Court level because the issues that come before the court are varied. (Dorsen, 2006) This was an advantage to John Roberts during his nomination, but proved to be the undoing of nominee Harriet Miers, whose previous work record, while impressive, indicated that she would not be conservative enough in terms of key social issues such as abortion. Such a distinction brings up the second criterion of ideology. Since presidents have the privilege and duty to nominate Supreme Court justices, the chances are it would be with a person who will in general implement the political or legal philosophy of that president. In the nomination of George Bush of Miers, he appeared to have made an error in judgment in that Miers was not the ideal candidate to uphold the conservative views President Bush holds on social issues. (Dorsen, 2006) At least, this is the interpretation that many, including Harriet Miers, would probably place upon the issue. The likes of those who lobbied against the confirmation of Robert Bork would agree. Conclusion There are no clearly established requirements for a Supreme Court justice, or for any federal judge for that matter, in the US contained in the Constitution or in any statute. Even US citizenship is not required. Moreover, the number of justices to preside over the Supreme Court is also not mandated; the nine spots maintained in the present system have all but become arbitrary. The only requirement is that the nominee be selected by the President, with our without benefit of consent or advice from the Senate. (Dorsen, 2006) However, the selection of members of such a body is of paramount importance because of the very nature of its functions, which is to determine the constitutionality of any and all issues that have become a subject of debate or controversy, and need to be resolved decisively. These are not confined to social issues; indeed, some of the most basic of legislation and judicial decisions which affect the general population, such as tax issues, are subject to the rulings of the Supreme Court which are deemed as final. If these mandates had been in place, perhaps the selection process of justices would be easier to justify and simpler to administer. It would seem that since constitutionality is the primary reason for being of the Supreme Court then its members should be selected based on this alone, and that ideology should have no place in the selection process. However, the reality of the “political” side of the judicial system has been amply illustrated. While justices are not elected, the President and the members of the Senate are, and the nomination of a constitutionally-knowledgeable but ideologically-unpopular Supreme Court justice will eventually redound to those who nominated and confirmed the position. Moreover, the nominations themselves are typically based on some ideological, or at least political, orientation which reflects the prevailing administration’s own views and stance. It would be unrealistic to expect the incumbents to risk their standing in the public eye in the name of diversity and liberal-mindedness. Currently, the trend is towards justices who are judicially experienced and proven conservatives, and this is just the way special interest groups and much of the US population would have it. Whether this will evolve into a Supreme Court that will put ideology aside for a stark interpretation of the US Constitution as is its duty, and whether this would be acceptable to a citizenry for which the Constitution is designed to protect would be an issue for much more speculative discussion. References Dorsen, N. (2006, October). The selection of U.S. Supreme Court Justices. International Journal of Constitutional Law 4, 652-663. Retrieved May 30, 2007 from http://www.ecln.net/elements/conferences/book_berlin/dorsen.pdf Horrigan, B. (2006, January 6) Judging Alito: The US Supreme Court system on trial. Jurist. Retrieved May 30, 2007 from http://jurist.law.pitt.edu/forumy/2006/01/judging-alito-us-supreme-court.php Rutkus, D.S. (2005, July 6) Supreme Court appointment process: roles of the president, judiciary committee, and Senate. CRS Web. Retrieved May 30, 2007 from http://digital.library.unt.edu/govdocs/crs//data/2005/upl-meta-crs-6787/RL31989_2005Jul06.pdf Salvato, F. (2005, July 7) Purposeful selection of a Supreme Court Justice. The American Chronicle. Retrieved May 30, 2007 from http://www.americanchronicle.com/articles/viewArticle.asp?articleID=1024 U.S. Constitution – Article 2 Section 1. (n.d.) U.S. Constitution Online. Retrieved May 30, 2007 http://www.usconstitution.net/xconst_A3Sec1.html U.S. Constitution – Article 2 Section 2. (n.d.) U.S. Constitution Online. Retrieved May 30, 2007 from http://www.usconstitution.net/xconst_A2Sec2.html U.S. Supreme Court nominations. (2007, March 23). Georgetown Law Library. Retrieved May 30, 2007 from http://www.ll.georgetown.edu/guides/supreme_court_nominations.cfm Read More