Once Supreme Court justices are approved, they serve for life unless they retire. This means that their selection must be taken with the utmost care. As the third major branch of government, the Supreme Court is a powerful check against the other two branches, the Legislative and the Executive.
Over the past few years, there has been more than the usual share of controversy about the selection of new justices. We wanted to take the time to educate readers on how the selection process happens. Concisely, the President puts forth a nominee. The Senate then votes on whether to approve the nominee or not. If they vote to approve, the nominee becomes a justice.
Who Can Be Nominated?
The most unusual thing about picking a new justice is that there are no requirements for Supreme Court justice nominees. Anyone could be selected, even a foreigner. The Federalist Papers state that by having one person, the President, do the nominating, they would take far more care to choose someone because it would risk their reputation if the candidate was rejected.
In practice, Presidents have chosen people with strong and meritorious legal backgrounds. They also tend to choose people who are inclined to believe similar Constitutional views to their party. This is a tricky road for nominees due to the appointing process.
Why A Lifetime Term?
The lifetime appointment term was put in place to prevent any nominee from feeling as if they were beholden to any authority for their position. The current average tenure for a Supreme Court justice is 25.5 years, far more than the maximum 8 years a President can serve.
What Happens After Nomination?
After the President announces a nominee, the nominee is sent an extensive questionnaire covering all aspects of their life, beliefs, legal background, and other questions of interest to the Senate Judiciary Committee. Once this is complete, the committee studies the answers and then brings in the nominee for an intense and quite political interview. Further written questions may be developed from this interview for the nominee to answer.
What Does The Senate Judiciary Committee Do Then?
The Senate Judiciary Committee’s role is to make one of three choices to the rest of the Senate. They can approve or reject the nominee, or abstain from making a recommendation. Rejection of a nominee doesn’t automatically mean the nominee has no chance, though the nominee could choose to withdraw.
What Does The Senate Do Next?
At this point, the Senate will debate the nominee and take a vote. If the nominee receives a simple majority, they will be appointed as a Justice. However, the length of time between nomination and the vote can be quite long. The average is a little over two months but it can last much longer. The Senate has stymied Presidents in the past by refusing to vote on a nominee, even if the candidate is highly qualified.
Can The President Do Anything About This?
Yes. If the Senate is not in session and the President feels that a seat needs to be filled they can make a recess appointment. This appointment will last until the next Senate is elected, at which time the new Senate votes on whether to keep the appointee or not. This power has been used a handful of times for Supreme Court justices throughout our history.
It’s quite likely that several Justices will choose to retire over the next 5-10 years due to age. This will give Americans plenty of opportunities to see this process in action. If you wish to have your voice heard, learn about any nominees put forth and let your opinion be known to your Senators.