The nomination process

                According to the Constitution, the President has the power to nominate someone for the Supreme Court in the event of a vacancy. This may be the result of resignation, impeachment or death. Given the fact that members of the Supreme Court enjoy life tenure; a vacancy usually arises on the basis of resignation. For instance, the two nominees put forward by President Obama were both as a result of existing members resigning from their post. To date, no member of the Supreme Court has ever been impeached.

                The nomination process is of a highly politicized character which involves a wide range of important actors. It begins with the President himself who will commission a search for suitable candidates for the post. Politics being what it is; this process may well have been underway for some time beforehand. The President will gain advice from a range of sources including his closest confidants and congressional members from his own party. He will also sound out members of the Senate Judiciary Committee in order to anticipate any potential problems. Failure to get his nominee through can be very embarrassing for the President. Finally, the President may well seek the advice of the American Bar Association (ABA). A Republican President may also gauge the opinion of the Federalist Society due to a belief within conservative circles that the ABA has a liberal bias.

                A nominee to the Supreme Court will gain their post based upon a combination of legal expertise and their ideological leanings. In terms of the former, eight of the current members have legal experience from the federal courts. The one exception (Elena Kagan) had served as Solicitor General at the Department of Justice. In political terms, a Democrat President will seek to appoint a liberal judge whereas a Republican will seek to appoint a conservative. It should be noted here that once the appointment is made, the judge in question may well chart a very different ideological course. To take one example, it was commonly assumed that David Souter would be a solid conservative but over time he adopted a fairly moderate position.

                After a shortlist has been reached, the FBI performs a number of background checks upon the possible nominations. If the nominee passes the vetting process, they will be formally interviewed by the President. If they impress during the interview, the nominee is then confirmed to the media via a formal announcement. The ABA then rates the nominee on the basis of ‘well qualified,’ ‘qualified’ or ‘not qualified.’ The only recent example of a nominee failing to gain the highest possible rating was Clarence Thomas.

                The process becomes highly politicized when proceedings shift towards Capitol Hill. The nominee must appear before the congressional committee and face questions from members of the Senate Judiciary Committee. Questions can be of a technical legal nature and of a more personal character. The aforementioned Clarence Thomas offers a particularly revealing case study to consider here. Members of the Senate Judiciary Committee asked him highly personal questions about his relationship with an intern called Anita Hill. During the media circus that ensued, conservatives claimed that liberal members of the committee were seeking to score political points against President Bush. Thomas himself famously described the process as a form of “high-tech lynching.” As one might expect, this particular example occurred during a time of divided government. The process is usually more straight-forward during a time of unified government. However, the President cannot simply assume that his nominee will pass this stage even when his party is in control of the upper chamber. In 2005, Harriet Miers was withdrawn as a candidate for the hallowed bench due to criticism from Republican members of the congressional committee. It was widely thought that Miers was not conservative enough on key issues.

                Once the nominee has faced questions from members of the Senate Judiciary Committee, its members take a vote on further action. This is merely a recommendation to the whole chamber. That said; the recommendation is often seen as a precursor to the judgment of the Senate as a whole. If the Senate Judiciary Committee votes overwhelmingly in favor, then the nominee is almost certain to be confirmed. This was the case with Ruth Ginsburg (1993) and to a lesser extent John Roberts (2005). Under the Obama administration, both Kagan and Sotomayor passed with comfortable majorities. A simple majority is required for confirmation by the upper chamber.

                The nomination process lasts on average around sixty days and consumes a considerable degree of media interest. The process is always more contestable during a time of divided government, and the nominee in question is more likely to face defeat during the lame-duck stage of the presidential cycle (as in the case of the aforementioned Robert Bork). The whole process can lead to a detailed examination of previous comments and actions by the nominee in question. In the case of Sotomayor, her remark about a wise Latina woman reaching a better conclusion than a white male who hasn’t lived that life certainly generated attention and controversy. Similarly, the words of congressional committee members can be politically charged or simply partisan. For instance, Democrats were far more praiseworthy of Elena Kagan’s nomination than Republicans.

The overall significance of the nomination process is self-evident, particularly when the Head of State can shift the political gravity of the Court towards either the left or right. Alas, in many cases he simply makes a like-for-like replacement. Either way, the President tends to put forward someone who will outlive his own presidency. This is why the term echo chamber is sometimes used, in that members of the Supreme Court may reflect the views of the President who nominated them long after they’ve left the Oval Office. However, the nominee may well take an unexpected course. There is no better historical example than the candidates put forward by President Eisenhower. When asked if he had made any mistakes as Head of State, he replied “yes, two, and they are both sitting on the Supreme Court.” The two in question were Earl Warren and William Brennan; both of whom were far more activist and liberal than Eisenhower anticipated. In more recent times, it should be noted that Sonia Sotomayor has distanced herself from Obama’s remark that members of the Court should be influenced by “empathy” when deciding a case. Sotomayor reminds us that members of the Supreme Court are not there to do the President’s bidding. Instead, they are judges serving on a revered institution underpinned by judicial independence.