4.2 Appointment process for SC

Question 1

5

Describe the 5-step process for appointing a US SC judge

Answer 1

• Vacancy occurs
• Presidential nomination
• American Bar Association (ABA) rating
• Senate Judiciary Committee
• Senate floor vote

Question 2

3 with examples

When will a vacancy occur?

Answer 2

• Death of a Justice (e.g. Antonin Scalia in 2016)
• Retirement (e.g. Stephen Breyer resigned in 2022 to allow for liberal successor)
• Impeachment (Samuel Chase 1805, though acquitted)

Question 3

4

Describe Presidential considerations for a judicial nominee

Answer 3

• Judicial experience
• Demographics of justices
• Ideology of outgoing justice
• Ideology of nominee

Question 4

3

Describe judicial experience (presidential nomination)

Answer 4

• Nominee should have experience and be qualified in law
• ABA rates candidates as ‘well qualified’, ‘qualified’ or ‘unqualified’
• Only current member not serving on circuit court when appt is Elena Kagan (solicitor general for Obama)

ABA - American Bar Association

Question 5

4

Describe Harriet Miers

Answer 5

• 2005, nominated following Sandra Day O’Connor’s retirement
• Served as White House Deputy Chief of Staff
• Never served at judge at any level - lacked judicial experience
• 2007, nomination withdrew after bipartisan opposition

Question 6

2

Describe consideration of outgoing justice (presidential nomination)

Answer 6

• President may be expected to replace justice with ideologically similar judge
• Yet this is rare - Kavanaugh (2018) and Barrett (2021) were both conservative than predecessors

Question 7

2

Describe demographics of SC (presidential nomination)

Answer 7

• President may wish to widen represenattive nature of Court
• e.g. Biden appt first AA woman to SC - Ketanji Brown Jackson

Question 8

3

Describe the ideology of the nominee (presidential nomination)

Answer 8

• Can ascertain ideology from previous rulings as nearly all nominees have been a judge on a lower court
• e.g. Kavanaugh appeared on a list from the Heritage Foundation (right wing think tank)
• but may not be succesful in finding ideologicla match e.g. Anthony Kennedy (Reagan) a conservative, yet more moderate than expected

Question 9

6

Describe the Senate Judiciary Committee hearings

Answer 9

• 21 members (proportional to party distribution in Senate)
• Scrutinise nominees through hearings and hold vote
• Hear from relevant individuals/groups
• As the committee is not actually constitutional, it is only advisory
• yet has considerable influence on Senate vote
• e.g. Robert Bork rejected by committee 9-5 and subsequently rejected by Senate

Question 10

3

What happened in Amy Coney Barrett’s committee vote?

Answer 10

• boycotted by Democrats
• in protest at speed of confirmation
• won vote 12-0

Question 11

3

Describe the Senate floor vote on SC appointment

Answer 11

• Senate must vote to confirm appointment
• following 2017 reforms, this vote can no longer be fillibustered and requires simple majority
• all votes have become partisan since 2006

Question 12

1

Give an example of a successful Senate floor vote

Answer 12

• 1993, RBG confirmed 96-3

Question 13

1

Give an example of an unsuccessful Senate floor vote

Answer 13

• 1987, Bork rejected 58-42

Question 14

4

Describe the ‘swing justice’

Answer 14

• The justice that is in the idelogical middle of the 9 US SC justices
• Majority decision often a result of ‘swing justice’ decision
• Previously taken up by Kennedy, Day O’Connor
• Role of ‘swing justice’ currently reduced with 6 conservative justices

Question 15

4

Describe the frequency of split decisions in the SC

Answer 15

• only 20% of rulings are decided with 5-4 vote
• 2016-17, 57% of decisions were unanimous 9-0 vote
• e.g. McElrath v Georgia 2024
• factors such as constitution more pervasive in deciding plurality of cases rather than ideology

Question 16

6

List Conservative judges on the SC

Answer 16

• Clarence Thomas (Bush Sr)
• John Roberts (Bush jr)
• Samuel Alito (Bush jr)
• Neil Gorsuch (Trump)
• Brettt Kavanaugh (Trump)
• Amy Coney Barrett (Trump)

(moderate to rights): Roberts → Kavanaugh → Barrett → Gorsuch → Alito → Thomas

Question 17

3

List liberal judges on the SC

Answer 17

• Sonia Sotomayor (Obama)
• Elena Kagan (Obama)
• Ketanji Brown Jackson (Biden)

(moderate to right): Sotomayor → Breyer (Clinton) → Kagan → Jackson

Question 18

3

Describe conservative judges

Answer 18

• More likely to produce rulings that limit federal government
• Uphold conservative ideals e.g. pro-gun, pro-life
• more likely to be strict constructionists

Question 19

4

Describe liberal judges

Answer 19

• More liekly to produce rulings that produce greater equality
• Uphold liberal ideals e.g. LGBT rights and gun control
• May indicate larger federal government
• more likely to be loose constructionists

Question 20

3

Describe the diversity of the US SC

Answer 20

• Ethnicity - 6 white justices, 2 black justices, 1 hispanic justice
• Gender - 5 men, 4 women
• Religion - 6 catholics, 2 protestants (Gorsuch/Jackson), 1 Jew (Kagan)

Question 21

What happens when a ruling is tied?

Answer 21

Original ruling stands

Question 22

2

Give an example of a tied ruling

Answer 22

• Obama’s executive order regarding DAPA struck down by 4-4 vote that led to lower court decision standing
• Office left vacant after liberal Antonin Scalia’s death and Republican obstructionism of nomination

Question 23

1

Describe controversy over Sotomayor

Answer 23

• in 2001 claimed that latina woman justice could make better rulings than white male

Question 24

2

Describe the financing of SC justices

Answer 24

• Judicial Crisis Network given $7m by donors to oppose Garland appointment, $10m to support Gorsuch appointment
• Demand Justice launched $1m campaign to support Jackson nomination

Question 25

# 2 What did Biden campaign for in 2020 on the Supreme Court?

Answer 25

* To appoint a black woman * Best example of political appointment

Question 26

# 3 Describe the Presidential Commission on the Supreme Court

Answer 26

* 2021 Biden signed executive order to create committee made up of legal scholars to invetsigate possible SC reforms * Reported that there was bipartisan support for 18-year term limits * Yet no consensus on court expansion

Question 27

# 2 Give an example of how Chief Justice John Roberts is moderate

Answer 27

* 2012, SC declared Affordable Care Act (ACA) constitutional * Deciding vote by Roberts

Question 28

# 2 Describe the limited time given to nominees in SJC hearings

Answer 28

* Hearings of Alito, Setomayor, Kagan and Gorsuch * Nominees only spoke for 33% of hearing - rest taken up by Senators

Question 29

# 3 Give an overview of the strengths/weaknesses of the SC Appointment process

Answer 29

* Length of process * Legitimacy * Judicial independence

Question 30

# 5 Describe the strengths of the SC Appointment process - **length**

Answer 30

* Ensures well-qualified candidate * Length of process (usually 2-3 months) allows vetting for judicial experience * e.g. Harriet Miers * ABA ratings ensure experience * important justices are sufficiently competent as have hugely consequential judicial review powers

Question 31

# 3 Describe the weakness of the SC Appointment process - **length**

Answer 31

- vacancy caused by death/impeachment leaves even number (8) of justices - causes tied rulings e.g. Obama DACA - lifetime appointments creates eventual Court that reflects an ideology inconsistent with future public will

Question 32

# 2 Describe the strengths of the SC Appointment process - **grants legitimacy to SC**

Answer 32

* elected President and Congress hold role * role of Senate Judiciary Committee

Question 33

# 3 Describe the weakness of the SC Appointment process - **SC has lack of legitimacy**

Answer 33

* ABA unelcted/unaccountable - lacks constitutional weight, so should lack influence * nominees rarely speak in SJC hearings * can therefore be questioned whether nominees are adequately qualified

Question 34

# 2 Describe the strengths of the SC Appointment process - **judicial independence**

Answer 34

* Senate confirmation prevents Presidential packing * President's ideological nominations may not be successful (e.g. Roberts is a moderate)

Question 35

# 4 Describe the weakness of the SC Appointment process - **lacks independence**

Answer 35

* All appointments since 2006 voted on party-lines in Senate * media circus undermines independence e.g. Kavanaugh, Sotomayor * financing of nomination campaigns * politicisation of process prevents independence

Question 36

# 2 Describe Earl Warren

Answer 36

* Appointed by Republican Eisenhower * More liberal than expected

Question 37

# 1 What was Kavanaugh's past role?

Answer 37

Was a republican lawyer on Clinton impeachment case - politicisation of judges

Question 38

# 1 Describe Samuel Chase

Answer 38

* Impeached but not removed