By Kerry L. Erisman
Faculty Member, Legal Studies
Supreme Court Justice Stephen G. Breyer announced on January 27, 2022 that he will be retiring at the end of the current term. This announcement immediately triggered exaggerated and feverish headlines from major news organizations.
CNN said: “Another testy Supreme Court battle is the last thing America needs – but it’s probably what lies ahead.” The New York Times added, “Cloud of Supreme Court Confirmation Bitterness Hangs Over Coming Fight.”
Similarly, Politico stated: “Supreme Court confirmation fight to make history in 50-50 Senate.” Finally, Fox News proclaimed: “Expect Biden’s Supreme Court nominee to appease the radical left.”
Related link: The Legacy of Supreme Court Justice Stephen G. Breyer
The Supreme Court Justice Nomination Process
When a sitting Supreme Court justice retires or dies, the sitting U.S. President begins a process of selecting a nominee to fill the vacant position. The authority to nominate a Justice is found in the U.S. Constitution, Article II, Section 2, Clause 2. This clause, known as the Appointments Clause, states that presidents “shall nominate, by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the Supreme Court.”
Nominating potential Supreme Court justices is perhaps the greatest responsibility a president has during his time in office. President Joe Biden recently stated, “Choosing someone to sit on the Supreme Court, I believe, is one of the most serious constitutional responsibilities a president has.”
Supreme Court justices serve for decades, long after the president who nominated them is out of office. The lifetime appointment that Supreme Court justices have pursuant to Article III, Section 1 of the U.S. Constitution, makes their position extremely powerful. Where the Constitution is silent, however, is on what judicial qualifications a nominee must have and how the Senate offers its advice and consent.
What Presidents Look for in Supreme Court Justice Nominees
What does a president look for in a potential Supreme Court nominee? Presidents look for candidates who generally share their views and philosophical beliefs.
It stands to reason that a president would choose a nominee who appears compatible with his beliefs. For example, a conservative president will commonly select a nominee that they believe will be a conservative Supreme Court justice.
For instance, President George W. Bush, a conservative, looked for a nominee who shared his conservative views. When asked in 2000 what criteria he would use to select Supreme Court justices, President George W. Bush stated that he would look for “strict constructionists” who would not “legislate from the bench.”
Related link: Supreme Court Ruling Heralds Ideological Shift for Decades
Vetting Supreme Court Justice Nominees
Potential Supreme Court candidates are heavily vetted by White House personnel, Department of Justice attorneys, and the FBI to uncover any negative information or baggage that may derail a nomination. The investigators also check a potential nominee’s public record and professional credentials.
Another part of the investigation is a private background check, with includes the nominee’s financial background and other personal matters. This rigorous investigation is designed to ensure the president nominates a candidate who will receive Senate confirmation and not embarrass the president.
Once the comprehensive background investigations are complete, the president’s advisors compile a short list of the potential nominees, based on the results of the investigations. The president then discusses the list with his closest advisors and decides whom to interview.
After the interviews are complete, the president makes his final selection and forwards the name to the Senate Judiciary Committee for the confirmation process. Currently, President Biden is in the process of selecting his nominee and has announced that he intends to nominate an African American female jurist. The nomination is expected in February 2022 during Black History Month.
The Confirmation Process
Once the Senate Judiciary Committee receives the name of the president’s nominee, it begins its own independent investigation into the nominee’s background. Judiciary Committee staffers normally conduct the investigation.
It is also normal for nominees to meet privately with senators from the Committee during this time. Once the investigation is complete, a date will then be set for the Judiciary Committee to hold public, televised hearings.
During the hearings, the nominee is afforded the opportunity to deliver an opening statement, and then senators have the chance to make their opening statements. Once the opening statements are completed, senators then are given the opportunity to question the nominee.
Questioning normally takes a few days, and the committee’s questions range from the qualifications of the nominee to political ideology and judicial philosophy. Once the Committee is done examining the nominee, other witnesses are typically called – some in favor of the nominee and others opposed to the nominee.
At the conclusion of the witnesses, the senators make closing statements. Afterward, they usually discuss either their support for or opposition to the nominee.
The next step in the process is for the committee to meet and send its recommendation on confirmation to the full Senate. The full Senate will debate the nominee and then vote on his or her confirmation. A simple majority is required for the nominee to be confirmed as a Supreme Court Justice.
The Senate’s Confirmation Process Has Become Highly Political
Unfortunately, the confirmation process with the Senate has become highly political. The goal no longer appears to be to find the best-qualified nominees for the Supreme Court, but rather for senators to score points with their constituents and supporters.
Outrage, dismay and dramatics best sum up the process. One side will argue that a particular nominee is the best choice for America, while the other side contends that the world is ending.
These arguments seem to be formed even before a nominee is selected, with the individual being far less important than party loyalties.
Is the nomination system broken beyond repair? According to retired Senator Orrin Hatch, a former chair of the Senate Judiciary Committee, “I don’t know that I would say the system is broken, but I do think it has been mauled pretty badly.”
An examination of past Senate votes shows the drastic and unfortunate nature of today’s political divide:
- In 1986, the Senate confirmed Justice Antonin Scalia, a quintessentially conservative and strict constructionist jurist, by a unanimous vote of 98-0.
- In 1993, Justice Ruth Bader Ginsburg, a standard bearer liberal judge, was confirmed by a vote of 96-3.
Both justices represented the extremes of their ideologies. But at their confirmations, they were almost unanimously supported by both parties because they were incredibly gifted jurists.
Despite their skill and qualifications, these numbers would be unheard of today. For the past three nominees who were confirmed, the votes were:
- 54-45 in 2017 (Justice Neil Gorsuch)
- 50-48 in 2018 (Justice Brett Kavanaugh)
- 52-48 in 2020 (Justice Amy Coney Barrett)
If Justices Scalia and Ginsburg were nominated today, the Senate votes would be strictly along party lines. That is similar to what has happened in the past five years, with the minority party doing everything it could to sabotage the nominee. Unfortunately, in the current politically charged process, it is highly likely that the Supreme Court would have been deprived of the groundbreaking opinions of both Justices Ginsberg and Scalia.
How Can We Return to a Better Confirmation Process?
Is there a fix to this highly political mentality? Is there any civility or intellectual honesty left in politics?
There are senators from both political parties who reach across the aisle to gain consensus on hot-button issues. Unfortunately, they are few and far between.
These senators, however, need to work together to improve relationships between the two major parties. The American people need to demand a Senate that works together and compromises for the betterment of America.
Perhaps Senator John Thune summed it up best when he recently stated, “Think about everything else that could be stronger, including America’s confidence in Congress, if we worked together more often. Washington’s political scoreboard, which people inside the Capital Beltway are far too obsessed with these days, is meaningless to the rest of the country. Working together will deliver the best results and put points on the only scoreboard that really matters: the American people’s.” Let’s turn Senator Thune’s words into action and work together to eliminate the circus-style confirmation process.
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