Evaluating the SC confirmation process

Question 1

List the strengths of the confirmation process

Answer 1

• Candidates will face detailed background scrutiny from the WH, FBI, SJC and the media. This means any controversial decisions or past transgressions will be uncovered
• The SJC performs detailed scrutiny through its hearings, where it ascertains candidates suitability for the role and their views on a range of judicial issues
• Senate confirmation provides a check on presidential control of the process, as the president must be mindful that they select a candidate that will have sufficient senatorial support
• Although presidents pick justices who are ideologically aligned with themselves, many justices have gone on to disappoint their political patrons
• The involvement of professional independent organisations like the American Bar Association provides legislators with additional info to help them choose a candidate

Question 2

What does most modern day criticism of the appointment and confirmation process centre around?

Answer 2

Accusations of politicisation by the president, senator and media

Question 3

Give an example of a candidate receiving detailed background scrutiny

Answer 3

A full senate vote on Kavanaugh was delayed until the FBI had carried out a full investigation of his sexual assault allegations. This was in addition to his initial FBI background check. R senator Jeff Flake told Trump he could not back the nomination until the FBI had completed this extra investigations. The FBI found no evidence supporting the allegations

Question 4

Give an example of SJC scrutiny of a nominee?

Answer 4

All nominees have to complete a length pre-hearing questionnaire. The answers by Harriet Miers in 2005 were described by the senior D and R members as ‘incomplete’ and ‘insulting’, asking that she re-do the questionnaire. She pulled out shortly after

Question 5

Give an example of the need for senate approval limiting the presidents control of the process

Answer 5

Senate rejection of Robert Bork

Question 6

Give two examples of SC justices going on to disappoint the president who had nominated them

Answer 6

• When GHWB nominated David Souter he expected a conservative. Once appointed he regularly sided with the liberal justices
• Eisenhower described his appointment of Chief Justice Earl Warren as ‘the biggest damn-fool mistake I ever made’, as his decisions were far more liberal than Eisenhower accepted. An example of this could be Brown v Board of Education of Topeka

Question 7

Give an example of the ABA providing specialist information to help the senate with their decision making

Answer 7

The ABA will rate justices as either ‘well qualified’, ‘qualified’ and ‘not qualified’. The only recent example of a justice being ranked anything other than ‘well qualified’ was Clarence Thomas in 1991, who was given just ‘qualified’

Question 8

Give an example of ABA involvement actually being negative

Answer 8

In 1971, Nixon seriously considered Court of Appeals judge, Mildred Lillie. She would have been the first female justice had Nixon not have backed off due to the then all male ABA rating her as ‘not qualified’

Question 9

List the weaknesses of the confirmation process

Answer 9

• The process has become over politicised, with justices being nominated on the basis of their political ideology or judicial philosophy, rather than exclusively on their legal expertise and competence
• The SJC is equally politicised in its approach, being aggressive and personal when questioning opposition candidates but being conciliatory to the point of no longer providing objective scrutiny when the candidate is nominated by a president from their own party. This means that the main objective of providing robust scrutiny has been diminished in favour of partisan posturing
• Although professional interest groups may be expected to provide non-partisan advice, this will not always be the case
• The public nature of the process can lead to it becoming a media circus, with public protests and highly partisan media coverage becoming the norm. This arguably deepens the political divide in America. Opposing interest groups often pour millions of dollars into lobbying the senate and political advertisement
• The process reinforces the idea of a highly politicised court, with a clear divide between its conservative and liberal wings. This appearance makes it harder for the SC to be an impartial referee

Question 10

What type of justice will an R president look at appoint?

Answer 10

A conservative justice who advocates for judicial restraint

Question 11

What type of justice will a D president look to appoint?

Answer 11

A liberal justices who advocates judicial activism

Question 12

What is a conservative justice?

Answer 12

A judge who generally holds a originalist interpretation of the constitution and favour following what the FF meant. They are less likely to ‘discover’ new rights when ruling on cases. They will have a more right wing stance on controversial issues, such as opposing abortion and supporting gun rights

Question 13

Define judicial restraint

Answer 13

A term associated with conservative justices, referring to their general preference to not extend judge made law. The constitution should be searched for its original intent and if it silent on an issue, the courts should not create a new law, as this task belongs to elected politicians and legislatures

Question 14

What is a liberal justice?

Answer 14

A justice who interprets the constitution more broadly in order to give people more freedom and bring about social change. They are more likely to ‘find’ new rights when ruling on cases, especially those that benefit minority groups. It also suggests a more progressive stance on controversial issues, such as supporting affirmative action, and retaining a clear separation between church and state

Question 15

Give an example of how the confirmation process has become more politicised in recent years

Answer 15

The last near unanimous vote was Stephen Breyer in 1994, by a margin of 87-9. By contrast, Kavanaugh just scraped in at 50-48 in 2018, with just 1 D and R breaking from their respective parties

Question 16

Give two examples of when the SJC has been politicised in the way it has scrutinised candidates

Answer 16

In 1991 with Clarence Thomas and 2018 with Brett Kavanaugh, the senate could have focused on their levels of qualification and experience, but instead decided to focus on the fact that both had been accused of sexual assualt

Question 17

What did Clarence Thomas say in criticism of the SJC hearing process?

Answer 17

‘No job is worth what I have been through. Confirm we if you want, don’t confirm me if you have been persuaded to do so. But let this process end. Let me and my family regain our lives’

Question 18

What did Brett Kavanaugh say in criticism of the SJC hearing process?

Answer 18

‘My family and my name have been totally and permanently destroyed by vicious and false allegations. This grotesque and coordinate character assassination will dissuade good and competent people from all political persuasions from serving their country’

Question 19

Why can the ABA be seen as offering non-partisan advice?

Answer 19

Because they have issues well-qualified rating to both conservative and liberal justices, like Elena Kegan and Brett Kavanaugh

Question 20

Give some examples of professional organisations who offer advice in a partisan way

Answer 20

The Federalist Society has a more conservative outlook while the American Constitution Society has a more liberal outlook

Question 21

How did the confirmation process for Brett Kavanaugh show the negative impact of its highly publicised nature?

Answer 21

A group called Demand Justice spent at least $1.1 million on advertisements opposing his appointment, while the pro-Kavanaugh Judicial Crisis Network spent $3.9 million on ads supporting his appointment. The sensationalist coverage of his appointment process shows just how polarised the media has become in reporting on the confirmation process

Question 22

What did Clarence Thomas say about the media coverage of his confirmation hearing?

Answer 22

‘This is a circus. This is a national disgrace. From my POV as a Black American it is a high tech lynching for uppity blacks who in any way think for themselves’

Question 23

Give some examples to show how the confirmation process has increased the perception that the court is highly publicised

Answer 23

All recent appointments have been labelled as conservative or liberal, with all three of Trump’s nominations being labelled conservatives and both of Obama’s being labelled liberals