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“With the Advice and Consent”: Combining the Executive and Legislature

The president and the Senate share the power to appoint uS Supreme Court judges because of the constitutional requirement for the president to appoint judges with the “advice and consent” of the Senate. The president nominates a candidate who then must be confirmed by the Senate. Presidents generally consult with Senate party leaders as well as members of the Senate Judiciary Committee before choosing a nominee.[1] They may also obtain advice from party leaders, interest groups, advisers within the president’s administration, commentators, and sometimes sitting justices on the Supreme Court.[2]

Once the president nominates an individual, a Senate Judiciary Committee conducts an extensive investigation into the nominee and then holds a confirmation hearing.[3] At the hearing, the Committee questions the nominee on a wide range of topics including social and political issues, the Constitution, particular Court rulings, current controversies, and judicial philosophy.[4]

Although a nominee may be reluctant to answer certain questions, some senators may be persuaded to vote against confirmation based on a nominee’s unresponsiveness to questions on subjects they consider important.[5] Other public witnesses, including spokespersons for advocacy groups that support or oppose a nominee, also frequently testify during confirmation hearings. After the hearings, the Judiciary Committee reports back to the Senate by making a positive or negative recommendation, or no recommendation at all.[6] A negative recommendation does not prevent a nomination from moving forward, but it communicates to the rest of the Senate that the committee members had reservations in respect of the nominee.[6]

The full Senate then debates the nominee, focusing to some extent on the nominee’s judicial philosophy and ideology. These debates can become quite polarized.[8] After the floor debate, the Senate decides on a simple majority basis whether to consent to the nomination of the candidate to the Supreme Court. Most votes have been in favor of confirming the nominee’s appointment by a large margin, with only a few nominees being confirmed or rejected by a close vote.[9] The Senate has confirmed 123 out of 159 Supreme Court nominations received.[10] The Senate failed to confirm three nominations in the last 40 years.[11] A justice is sworn into office after the Senate’s confirmation.

The United States therefore has a process that formally requires the participation of both the executive and the legislature. Nearly all stages of the confirmation process, including the initial announcement of the nominee, confirmation hearings, committee’s vote, Senate debate, and the Senate vote, are open and televised to the public.[12] All through the process, politics play a significant role in both the decision by the president to nominate a candidate, and the decision by the Senate to confirm or reject a candidate (or as we saw recently with the controversy about replacing Justice Antonin Scalia, even to hold a hearing). Whether a nomination is ultimately successful may depend on factors such as the Senate’s perception of the nominee’s ideology, timing of the nomination relative to a president’s term, and presidential management of the confirmation process.[13]

  • [1] Rutkus, “Appointment Process,” supra note 2 at 7.
  • [2] Rutkus, “Appointment Process,” supra note 2 at 8.
  • [3] Since 1955, each Supreme Court nominee has testified before the Judiciary Committee during his or her confirmation hearing: Rutkus, “Appointment Process,” supra note 2 at 21.
  • [4] Rutkus, “Appointment Process,” supra note 2 at 29.
  • [5] Rutkus, “Appointment Process,” supra note 2 at 30.
  • [6] Rutkus, “Appointment Process,” supra note 2 at 32.
  • [7] Rutkus, “Appointment Process,” supra note 2 at 32.
  • [8] Rutkus, “Appointment Process,” supra note 2 at 39-40.
  • [9] Rutkus, “Appointment Process” supra note 2 at 46-47.
  • [10] Rutkus, “Appointment Process,” supra note 2 at 48 (the 36 nominations that were not confirmed by the Senate correspond to 31 individual nominees, 6 of whom were re-nominated andapproved by the Senate later on).
  • [11] Rutkus, “Appointment Process,” supra note 2 at 51. One recent unconfirmed nominationwas that of current chief justice John Roberts, who was first nominated to replace JusticeO’Connor, before the sudden death of Chief Justice Rehnquist caused President Bush to withdraw Roberts’s nomination for associate justice and resubmit it for the position of chief justice.See Rutkus, “Appointment Process,” supra note 2 at 5.
  • [12] Rutkus, “Appointment Process,” supra note 2 at 56.
  • [13] Rutkus, “Appointment Process,” supra note 2 at 49.
 
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