Nomination and Confirmation How the Court Works The Supreme Court Nomination and Confirmation How the Court Works

The Nomination Process – The Constitution Under the Constitution, the President has the power to nominate federal judges, who must then be confirmed by the Senate. Hundreds of judges sit on district courts and courts of appeals. Nine judges make up the Supreme Court. All of them serve for life.

The Nomination Process – Lower Courts Generally, appointments to the district courts follows precedent set by George Washington: senatorial courtesy. The Senate will usually not confirm a district court judge if the senior senator from the state objects. They will usually not confirm an appeals court judge if not approved by the Senators from the judge’s home state. Presidents usually check with Senators ahead of time – the Senate holds a lot of power in the appointment of federal judges.

The Nomination Process – The Supreme Court One of the most important duties of a President can be appointing Supreme Court judges. Justices retire at their own discretion. -Nixon got to nominate four. -Carter didn’t get any. -Reagan got three. -Clinton and each Bush each appointed two. -Obama appointed two (so far.) Clinton appointed Ruth Bader Ginsberg and Stephen Breyer. W. Bush appointed John Roberts and Samuel Alito. Obama appointed Elena Kagan and Sonia Sotomayor. In each case, the appointees reflected the politics of the president.

The Nomination Process – Senate Confirmation Since Senators suggest nominees for district courts, confirmation is a formality for most. For appeals courts, and especially the Supreme Court, it can be a big deal. The Senate Judiciary Committee interviews them and holds hearings before they go to the entire Senate. If the SJC doesn’t recommend them, the Senate usually will reject them.

Selection Criteria Political Ideology Party and personal loyalties Acceptability to the Senate Judicial experience Race and gender

The “Litmus Test” Although officially denied, some observers believe that candidates must pass a test of ideological purity to be nominated and confirmed by the Supreme Court. In other words, there are ideologies that are deal-breakers. Nominees David Souter and Clarence Thomas were grilled extensively about their opinions on abortion cases. After the September 11th attacks, support of civil rights and civil liberties have become a new litmus test for federal judges.

How the Court Works The court meets from October to June. They listen to oral arguments for two weeks, and adjourn for two weeks to consider the cases and write opinions. In a tie, the decision of the lower court stands.

How the Court Works – Taking Cases Most cases come by a writ of certiorari. Latin for “made more certain.” This is like an appeal. The court considers all petitions to review lower court decisions. If four justices agree to hear the case (the Rule of four), the case is scheduled for hearing. Only a tiny fraction of the cases appealed to the Court are accepted. The court also hears the very few cases in which it has original jurisdiction.

Briefs and Oral Arguments Each side presents printed briefs to the court explaining its position and relevant legal precedents. Also, the court may receive amicus curiae briefs. When oral arguments are presented, each side is generally limited to 30 minutes. Judges may interrupt at any time to ask questions.

Conference Wednesday afternoons and all day Friday the justices confer. Before each conference, judges receive a list of the cases to be discussed. These discussions are lively and informal. No vote is taken, but at the end, each justice is asked to give his or her views and conclusions.

Opinions An opinion – a statement of legal reasoning – must be formally stated once decisions have been made. The most senior judge in the majority assigns the task of writing the majority opinion. If not unanimous, the most senior dissenting judge assigns the task of writing the dissenting opinion. A justice may write a concurring opinion if they agree with the decision, but for different reasons than the majority opinion.