How Supreme Court Appointments Work

By Ed Grabianowski

Since President Barack Obama nominated Sonia Sotomayor to serve on the Supreme Court, the topic of Supreme Court appointments has made news again. This is nothing new — these appointments have been matters of tremendous importance to American law almost since the inception of the United States.

A president’s nomination to the Supreme Court can make a profound impression on history, so it’s important to understand how these appointments work. From how justices are nominated, to who’s qualified to serve and how a nominee is approved, it’s a pretty involved process. And of course, there are some complicated politics that come into play. 

Supreme Court Basics

The Supreme Court is the highest court in the United States. As the Judicial Branch of the U.S. government, it serves to balance the powers of the Legislative and Executive branches and stands as the final word in any given legal dispute. Once the Supreme Court has made a decision, no other court can review or overturn that decision.

Today, the authority of the Supreme Court is very clear. Roughly 5,000 cases are submitted to the court every year, but it only has time to take on 100 to 150 of them. Usually, the Supreme Court only accepts cases that:

  • involve some crucial question related to the U.S. Constitution
  • have been appealed from a lower federal court
  • involve treason, ambassadors or disputes with other countries

The Supreme Court did not always have this power, however. The Constitution is very vague about the authority of the court, saying only that its “Power shall extend to all Cases, in Law and Equity, arising under this Constitution.” The specifics, such as where and when the court would meet, how many justices there would be and exactly what is covered under “cases arising under this Constitution” were left to Congress to decide later. It wasn’t until Justice John Marshall’s 1803 decision in Marbury v. Madison that the Supreme Court’s authority to judge matters of constitutionality was determined.

The Old Supreme Court Chamber, where the Court sat from 1810-1860 The Old Senate Chamber, where the Court sat from 1860-1935 The Courtroom of the Supreme Court Building, where the Court has sat since 1935

Collection of the Supreme Court of the United States Collection of the Supreme Court of the United States Collection of the Supreme Court of the United States

The Old Supreme Court Chamber, where the Court sat from 1810-1860 The Old Senate Chamber, where the Court sat from 1860-1935 The Courtroom of the Supreme Court Building, where the Court has sat since 1935

Collection of the Supreme Court of the United States Collection of the Supreme Court of the United States Collection of the Supreme Court of the United States

When the Supreme Court renders a decision (by a simple majority, or at least five of the nine justices), all other courts in the country follow the precedent set by that decision. So when a case comes before the Court, the ruling affects not only the specific case and law in question, but all similar laws and cases nationwide. For example, if the Supreme Court decided that a law in Maine banning signs on front lawns with anti-war messages was unconstitutional, any state or municipality with the same kind of law would be unable to prosecute anyone for breaking it. Judges all the way from county courts to state supreme courts would look to the Supreme Court’s decision and throw out the case because it was based on an unconstitutional law.

Supreme Court justices have a great deal of power for another reason, too: They are appointed for life. That means that they never have to face re-election, and they don’t have to make sure that their decisions please the president who appointed them. The average justice serves for 14 years and retires at age 71

When a justice retires, he or she usually tries to time it with the Court’s summer recess so a replacement can be found before the next session. If a replacement hasn’t been found in time, the Court can operate with however many justices are present. If the Court operates with an even number of justices, and a decision results in a tie, the lower court decision in the case is “passively upheld.” That is, it is upheld for that particular case, but the Supreme Court doesn’t issue an opinion or set any kind of legal precedent. Thus, a similar case could come before the Supreme Court in the future.

Next, we’ll find out how Supreme Court justices are nominated and approved.

Who is Qualified?

The president nominates justices to the Supreme Court, subject to majority approval by the Senate. There are no rules spelled out in the Constitution regarding the qualifications of judicial candidates, so technically, the president can nominate anyone he or she wants. However, there are certain traditional attributes that viable candidates for a spot on the Supreme Court should have if he or she is to have any chance of Senate approval.

The Great Hall, looking toward the Courtroom

Collection of the Supreme Court of the United States

Every Supreme Court justice has been a lawyer, and for the last 150 years they have all been graduates of accredited law schools. John Marshall, considered one of the greatest justices to ever serve on the Supreme Court, only attended law school for a few weeks. He studied law as a teenager by borrowing law books from a nearby lawyer (Aaseng, pg. 20).

For the last few decades, almost all Supreme Court nominees have been federal judges.

Nominees generally have participated in politics to some extent, though this can take many forms. Some are involved in unions or other politically active groups, while some served in Congress or were state governors. One chief justice was a former president — Howard Taft became Chief Justice eight years after he left the Oval Office.

SOME IMPORTANT DATES IN SUPREME COURT HISTORY

  • 1790 – First session
  • 1803 – Marbury v. Madison establishes judicial review — the Supreme Court as the ultimate word on constitutionality.
  • 1857 – Dred Scott v. Stanford finds that slaves have no legal rights under the Constitution.
  • 1896 – Plessy v. Ferguson finds that “separate but equal” treatment of blacks and whites is constitutional.
  • 1954 – Brown v. Board of Education finds that “separate but equal” is not constitutional.
  • 1967 – Thurgood Marshall becomes first black justice appointed to the Court.
  • 1973 – Roe v. Wade finds that state laws barring abortion are unconstitutional.
  • 1974 – United States v. Nixon finds that presidential communications are not inherently protected.
  • 1981 – Sandra Day O’Connor becomes first female justice appointed to the Court.
  • 1989 – Texas v. Johnson finds that burning the American flag is not a criminal act.

The Nomination Process

Once the president nominates someone (usually with a personalphone call to that person) and releases the name, the Senate holds hearings. At these hearings, senators interview the nominee regarding his or her record as a judge and lawyer and where he or she stands on key issues. If the nominee has any dark secrets or past indiscretions, they are likely to come out in the Senate hearings, as well. Perhaps the most infamous instance of this took place at the confirmation hearings for Clarence Thomas, who was accused of sexual harassment by former colleague Anita Hill. He was eventually confirmed by the Senate despite the controversy. The overwhelming majority of Supreme Court nominees are approved by the Senate. There are some conflicting statistics, but the Congressional Research Service (CRS) reports there have been only 36 rejections out of 158 nominees since 2007

Until the 20th century, these hearings were held behind closed doors. In fact, the nomination process was almost completely invisible to the public. The president might seek the advice of friends and associates, but he made the choice on his own and even contacted and interviewed potential candidates on his own time. Today, members of the White House staff and the Justice Department are all involved in the decision, creating lists of candidates and sometimes competing with one and other to promote a particular candidate. Also, since 1930 the confirmation hearings have been completely open to the public. They have beentelevised since 1981 (Yalof, pg. 15).

There are several ways that a nominee can fail to become a Supreme Court justice. Seven nominees throughout history have simply declined the nomination. If it appears that there is great opposition to a candidate, the president can withdraw the nomination, or the nominee can withdraw him or herself. The Senate can also reject a nominee. Once rejected, a nominee can be submitted again, but this is a foolish course of action for the president unless something has changed that might lead to a different vote by the Senate. In 1836, Andrew Jackson nominated Roger Taney, but the Senate rejected him. A few months later, Jackson nominated Taney again. In that time, Congressional elections had been held, and the Senate was now more favorable to Jackson. Taney was confirmed (Aaseng, pg. 43).

In the next section, we’ll navigate the complicated political landscape that surrounds Supreme Court nominations.

THE INDUCTION CEREMONY

Arthur J. Goldberg, who was appointed by John F. Kennedy in 1962, provides an account of the induction ceremony for new Supreme Court justices.

“It is not generally known that a newly appointed justice takes two oaths. The first is the judicial oath (like the Hippocratic oath of doctors) administered by the chief justice in the robing room in the presence of other members of the Court. The second is administered in open court.”

Goldberg chose to take both oaths on a Hebrew bible, because he was Jewish, while other justices choose to take the oath on the official court bible (a Christian bible), which has the signatures of previous justices on the fly-leaf (Goldberg signed the court bible “to maintain continuity.”). The open court portion of the ceremony was attended by the President and other government officials. However, Chief Justice Earl Warren did not make any special acknowledgement of Kennedy on that occasion, something Goldberg noted: “I noticed from President Kennedy’s expression that he was rather nonplussed and somewhat resentful at not being introduced and called upon to say a few words.”

After the taking of oaths, Goldberg was seated at his place on the bench, a long, high table at which all nine justices sit, with the Chief Justice at the center. At this point, Goldberg made a discovery that speaks to the great honor someone feels when they take a position in the highest court in the nation.

“I opened the drawer on the Bench adjacent to my chair to obtain some note paper. To my surprise and delight I found an old dog-eared copy of the Constitution bearing the personal signature of that great Yankee from Olympus, Justice Oliver W Holmes, Jr. Needless to say, this finding made a considerable emotional impact on me. To sit on the seat on the Bench once occupied by that great justice was a singular honor. To find a copy of the Constitution inscribed by Justice Holmes was doubly so.”

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