Buzz
Since George Washington's inaugural appointment, 112 individuals have been part of the nation's highest court. Following Antonin Scalia's passing in 2016, the count will soon reach 113. President Donald Trump recently nominated Neil Gorsuch, a 49-year-old federal judge from Colorado, for the position. What are the next steps in the process?
CRITERIA
Unlike other political figures such as presidents, senators, and representatives, there are no formal requirements for becoming a Supreme Court Justice. The founders chose not to have the public or any single government branch select justices. James Madison explained in The Federalist Papers that justices needed to have 'peculiar qualities.' He also detailed why life tenure is essential, stating that 'the permanent tenure by which the appointments are held in that department, must soon destroy all sense of dependence on the authority conferring them.' Justices can vary in age (Joseph Story was just 32 when appointed in 1811, while Horace Harmon Lurton was 65) or even country of origin (six justices were foreign-born, including Felix Frankfurter from Vienna). Though all justices have some form of legal education, it's not a strict requirement. For instance, James Byrnes, appointed in 1941, never graduated high school and was self-taught in law. However, attending an Ivy League school can certainly boost one's prospects: among the eight current justices, four graduated from Harvard, three from Yale, and one from Columbia (Scalia also attended Harvard).
Justices can be reappointed even after retiring. This has occurred twice: first with John Rutledge (more details on him shortly) and again with Charles Evans Hughes. Hughes was initially appointed to the Supreme Court by William Howard Taft, but in 1916, he resigned to run for president as the Republican candidate against Woodrow Wilson. After his loss, Hughes took on various political roles until Herbert Hoover appointed him Chief Justice, replacing Taft, the same president who had appointed him years earlier. This precedent suggests that a president could re-nominate a former Supreme Court Justice.
HOW DOES THE NOMINATION PROCESS WORK?
The process is relatively simple. The president selects a qualified candidate, and that candidate is then sent a questionnaire covering almost every detail of their life. Afterward, the nominee appears before the Judiciary Committee (currently composed of nine Democrats and 11 Republicans, including presidential hopeful Ted Cruz and former candidate Lindsey Graham), followed by additional written questions. Once all questions are addressed, the Committee votes on whether to forward the nomination to the full Senate with a favorable, unfavorable, or neutral recommendation.
As expected, the process has recently become quite partisan. President Obama's two Justices, Elena Kagan and Sonia Sotomayor, were both confirmed with votes mostly along party lines, with Lindsey Graham crossing party lines both times. President Bush's selection of Samuel Alito saw a similarly divided vote. The last person to be confirmed with unanimous support was Stephen Breyer in 1994.
Perhaps the most intense nomination was Robert Bork's. Nominated by Ronald Reagan to become a new Justice, the announcement was met with immediate backlash from the Democrat-controlled Senate. Within an hour, Ted Kennedy delivered a speech condemning Bork, saying, 'Robert Bork's America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists would be censored at the whim of government, and the doors of federal courts would be shut on the fingers of millions of citizens for whom the judiciary is often the only protector of the individual rights that are at the heart of our democracy.' While most agree Kennedy's rhetoric was exaggerated, Bork faced awkward questioning—when asked why he wanted to be an Associate Justice, his response was 'it would be an intellectual feast.' The Judiciary Committee ultimately voted 9-5, mostly along party lines, to send the nomination to the full Senate with an unfavorable recommendation, with Republican Arlen Specter joining the Democrats in opposition.
Once the nominee passes the committee stage, the full Senate casts the deciding vote, requiring a simple majority. However, this process can be drawn out. Louis Brandeis, nominated on January 28, 1916, didn’t receive a final vote until June 1st, a delay of 125 days [PDF]. It could have been worse: After Henry Baldwin’s death in 1844, President Tyler attempted to nominate a replacement. First, he put forward Edward King, but that nomination was delayed. Then, Tyler nominated King again, but this time the nomination was withdrawn. Next, Tyler sent John Read, but the Senate ignored him. This marked the end of Tyler's presidency, and it was up to Polk to try next. Polk first nominated George Woodward, who was rejected 29-20, before attempting Robert Grier. Two years after Baldwin’s death, Grier was finally confirmed. Tyler had similar struggles filling Smith Thompson’s seat, eventually nominating six people for nine nominations and securing just one confirmation, which ties him with FDR for the second most nominations after Washington.
WHAT HAPPENS IF THE SENATE IS OUT OF SESSION?
The Constitution grants the President the 'Power to fill up all Vacancies that may happen during the Recess of the Senate.' However, any such appointment expires at the end of the next session. While the President can make a temporary appointment, the Senate must ultimately vote to confirm or reject the nominee. This power has been exercised 15 times, including with John Rutledge.
John Rutledge, honored for his role in drafting the Constitution, was nominated and confirmed as the Court’s first senior associate justice. However, he never attended any of the meetings and soon resigned to take a position on a lower court in South Carolina. In 1795, when the first Chief Justice, John Jay, was about to retire, Washington turned to Rutledge. But the Senate was in recess, which wasn’t an issue unless they failed to confirm him before the next legislative session. Unfortunately, between his appointment and confirmation, Rutledge spoke out against Jay’s Treaty, a treaty with Great Britain that had Washington’s backing. He was accused of 'mental incapacity,' and when the Senate voted, Rutledge became the only recess appointment ever rejected. This case set the important precedent that a nominee’s political views could be scrutinized during the confirmation process and established that recess appointments are temporary.
