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What Powers Do the President & Congress Have Over the Appointment of Supreme Court Justices?

by Charles Hooper, Demand Media

    The Appointments Clause of the U.S. Constitution's Article II says the President has the power, "with the advice and consent of Senate," to nominate and appoint Supreme Court Justices. According to the Congressional Research Service, since 1789 U.S. presidents have made 160 nominations for Supreme Court Justice, but the Senate only confirmed 124.

    Nomination, Confirmation and Commission

    The Founders intended for the Supreme Court to be independent of and equal to the legislative and executive branches. Federal judges are appointed "during good Behavior," meaning they serve until they retire or die. Only judges have this lifetime federal tenure. Congress can remove a justice if two-thirds of the House of Representatives pass articles of impeachment, and if convicted by two-thirds of the Senate. In 1805, Samuel Chase, charged by the House but acquitted by the Senate, was the only Supreme Court justice ever impeached. The process for selecting justices is straightforward. The President sends the name of the nominee to the Senate. The Senate Judiciary Committee studies the qualifications and holds a hearing to interview the candidate and review qualifications. The Committee then sends the nomination to the full Senate for a vote. Once confirmed, the new justice takes the oath of office. The President signs and seals the commission and that person immediately takes office.

    Presidents and Supreme Court Nominees

    Generally, presidents select Supreme Court nominees with outstanding legal qualifications. They also consider the political influence of their selection on constituencies. Another consideration is a nominee's ideological orientation and how it will affect the balance of the Court. The frequency of 5-to-4 Supreme Court decisions reveals just how delicate that balance is. At the same time, presidents seek candidates possessing strong qualities of judicial temperament, that is, with a clear record of impartiality. Senate opposition is considered and whether the confirmation battle is worth the political risk. Nominations for chief justice include additional qualifications. These typically include a clear history of leadership and administrative skills. Enhancing a nominee's ability to foster collegiality within the Court is a clear level of distinction and imminence.

    Advice and Consent of the Senate

    The Senate's role in advising the President has generally taken the form of the president meeting with Senate leadership and Judiciary Committee members and discussing nominees. Senators may also offer advice on the floor of the Senate or through the media. The Senate has voted against 11 nominated Supreme Court Justices. Presidents withdrew another 25 nominations or they never came before a vote.

    Contentious Nominations

    Until the early 20th century, Senate confirmation of a Supreme Court nominee took only days. But in the late 20th and early 21st century, the process averaged nine weeks. The principle reason for this delay, according to the CRS, is that modern presidents have announced the ideological orientations they expect from their candidates. In addition, the Supreme Court has become a far more politicized body than in the past, sometimes making the nomination and confirmation process a political battle.

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    About the Author

    Charles Hooper began writing as a career in 2009. Since then he has published a nonpartisan political advocacy book and hundreds of articles. An honors graduate from the University of North Carolina at Asheville where he concentrated in sociology and political science, he later earned a Masters degree in social work from the University of North Carolina at Chapel Hill.

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