Your feedback ensures we stay focused on the facts that matter to you most—take our survey.

Process to fill the vacated seat of Justice Anthony Kennedy

From Ballotpedia
Jump to: navigation, search


SCOTUS Vacancy, 2018
Judge Brett Kavanaugh2.jpg
Nominee
Brett Kavanaugh
Retiring Justice
Anthony Kennedy
Vacancy date
July 31, 2018
Confirmation date
October 6, 2018
Coverage

Timeline
Confirmation hearings
Kavanaugh nomination
Process to fill the seat
Kennedy resignation

See also
Brett Kavanaugh
Supreme Court vacancy, 2017
Supreme Court of the United States

On July 9, 2018, President Donald Trump nominated Brett Kavanaugh to succeed Associate Justice Anthony Kennedy on the U.S. Supreme Court. The Senate voted 50-48-1 to confirm Kavanaugh as the 114th associate justice of the Supreme Court on October 6, 2018.

At the time of his nomination, Kavanaugh was a federal judge on the U.S. Court of Appeals on the D.C. Circuit. He was appointed in 2006 by President George W. Bush (R). After Bush was elected president, Kavanaugh was senior associate counsel and associate counsel to the President and then served as assistant to the President and staff secretary. Kavanaugh was serving in this role when Bush nominated him to the D.C. Circuit.

Kavanaugh clerked for Associate Justice Anthony Kennedy from 1993 to 1994. He worked for former independent counsel Ken Starr during the investigation of then-President Bill Clinton (D). He is a Yale Law School graduate.

On June 27, 2018, Justice Anthony Kennedy announced he was retiring from the Supreme Court of the United States effective July 31, 2018. In an official release, Kennedy cited a desire to spend more time with his family as the reason for his retirement.[1] Kennedy was considered by many to be the court's swing vote, often casting the deciding vote between the court's more conservative and liberal members. He authored a number of noteworthy opinions: Obergefell v. Hodges, Citizens United v. Federal Election Commission, and Planned Parenthood of Southeastern Pa. v. Casey.

This page outlines the process for a president to nominate and U.S. Senate to confirm a member of the U.S. Supreme Court.

For more on the 2018 vacancy, see Supreme Court vacancy, 2018: An overview

Process to fill the seat

Although the rules for appointing and confirming a U.S. Supreme Court justice are set out in the U.S. Constitution, the process for choosing nominees is not codified in law. Past presidents have received lists of recommendations from the White House counsel, the attorney general and lawyers in the Justice Department's Office of Legal Counsel. Justices have often been friends or acquaintances who shared ideological views with the president.[2]

The nominating process is also influenced by individuals and organizations outside of the administration. The American Bar Association (ABA), through its 15-member Committee on Federal Judiciary, rates nominees as "well qualified," "qualified" or "not qualified." Others also lobby the president to choose nominees sympathetic to their views or to oppose those with whom they differ.[3]

Some presidents have required that a nominee hold a specific position on a key issue in order to be considered for nomination, sometimes referred to as a litmus test. Such a test is typically on an important social issue. But a nominee's views do not always conform to their future opinions. Some justices have ruled in ways that surprised the presidents who nominated them. Notable examples are Justice Tom C. Clark (nominated by President Harry S. Truman), Chief Justice Earl Warren (nominated by President Dwight D. Eisenhower) and Justice David Souter (nominated by President George H. W. Bush).[4]

Supreme Court confirmation

1.) The usual nomination process starts with the president choosing a nominee. It is not uncommon for the president to consult Senate leadership and the leaders of the Senate Judiciary Committee before deciding on a nominee.[5][6]

2.) The Senate Judiciary Committee then considers the nominee. The committee conducts a rigorous investigation into the nominee’s background, gleaning a sense of his or her judicial philosophy and temperament, which helps inform whether the senator will support the nominee. During this part of the process, the American Bar Association's Standing Committee on Federal Judiciary reviews the nominee. The nominee also visits with senators in their offices in order to help win support for nomination. The most public aspect of the process is when the nominee testifies before the Judiciary Committee and takes questions. The hearing, which is kept open at the discretion of the chairman, can last more than a day, as members, particularly opponents, verbally spar with the nominee. Having the nominee appear before the committee became a part of the process beginning with the nomination of John M. Harlan in 1955. The first televised Supreme Court nomination hearing took place in 1981 for Sandra Day O’Connor.[5][6]

3.) Typically, a week after the hearing is adjourned, the Senate Judiciary Committee holds a vote on the nominee. The committee’s practice has been to send the nomination, whether or not the nominee wins a majority, to the full Senate to allow the chamber to decide whether he or she should be confirmed.[5][6]

4.) The debate in the Senate is scheduled by the Senate majority leader in consultation with the minority leader. On April 6, 2017, during the process of confirming Justice Neil Gorsuch to the Supreme Court, the Senate lowered the threshold to close debate on Supreme Court nominations to a simple majority from 60 votes. According to the Congressional Research Service, "The practical effect of the Senate action on April 6 was to reduce the level of Senate support necessary to confirm a Supreme Court nominee."[5][7]

5.) The president also may choose to make a recess appointment, which would avoid the need for Senate confirmation. But the justice's term would end with the end of the next session of Congress, rather than the lifetime appointments provided by Senate confirmation. There have been 12 recess appointments made to the Supreme Court, most in the 19th century, according to the Congressional Research Service. The most recent was made by President Dwight D. Eisenhower, who gave Justice Potter Stewart a recess appointment on October 14, 1958, to a seat vacated by Justice Harold Burton. Justice Stewart was nominated by Eisenhower to the same seat on January 17, 1959, and was confirmed by the U.S. Senate on May 5, 1959.[5][6][8]

Historic context

Vacancies: departure date to swearing-in of successor

The average vacancy length on the Supreme Court since 1962—when defined as the length of time elapsed between a Justice’s departure date and the swearing-in of their successor—is 89 days. Four of these vacancies lasted for only a few hours each; the successor was sworn in the same day the retiring Justice officially left office. The longest vacancy under this definition was 422 days, following the death of Justice Antonin Scalia.

The second longest vacancy in that time was 391 days after Justice Abe Fortas retired on May 14, 1969, in the wake of a series of ethics scandals.[9] First-term president Richard Nixon (R) nominated two different successors for Fortas—Clement Haynsworth, a Fourth Circuit Appeals Judge, and Harold Carswell, a Fifth Circuit Appeals Judge. The Senate rejected both. Nixon’s third nominee, Eighth Circuit Appeals Judge Harry Blackmun, was confirmed on May 12, 1970, and sworn in on June 9, 1970—391 days, after Fortas’ retirement.[10]

The third longest vacancy in this time frame was between the terms of Lewis Franklin Powell and Anthony Kennedy. Powell retired on June 26, 1987. The Senate confirmed Kennedy on February 3, 1988. He was sworn in on February 18, 1988, making for a 237 day vacancy from Powell's retirement to Kennedy's swearing-in. Like Blackmun, Kennedy’s confirmation by the Senate followed two rejections. President Ronald Reagan (R) nominated him on November 30, 1987.[11]

Vacancies: departure date to confirmation of successor

When vacancy is defined as the length of time between a Justice’s departure date and the confirmation date of their successor, the average is 80 days. The vacancies between Scalia and Gorsuch and Fortas and Blackmun are still the longest, at 419 and 363 days, respectively. The third longest is between Lewis Powell and Anthony Kennedy, at 222 days.

Vacancies: announcement of retirement to confirmation of successor

When vacancy is defined as the length of time between the date at which a Justice announced his or her retirement and the confirmation date of their successor, the average length is 138 days. The longest vacancy is, again, between the terms of Scalia and Gorsuch at 419 days, followed by Fortas and Blackmun at 363 days. But the third longest, under this definition, is between the terms of Earl Warren and Warren Burger, at 361 days. Warren announced his retirement on June 13, 1968, almost a year before he officially left the bench on June 23, 1969.

In cases where a Justice died and no retirement announcement took place, we used their departure date. On several occasions, Justices officially retired on the same day as their announcement.

Vacancies prior to 1962

Prior to the 1960’s, there were two much longer vacancies on the Court. A seat sat vacant for almost two-and-a-half years during the presidencies of John Tyler and James K. Polk in the mid-19th century. Justice Henry Baldwin died in office on April 21, 1844. His eventual successor, Robert Grier, was confirmed by the Senate and sworn into office on the same day, August 10, 1846. In the interim, the Senate rejected four nominees. Another lengthy vacancy took place following the death of Justice Peter Daniel on May 31, 1860. Daniel’s seat was left unoccupied until President Abraham Lincoln’s (R) nominee, Samuel Miller, was confirmed and sworn in on July 21, 1862.[12]

Time between SCOTUS nomination and elections

Axios published a chart detailing the amount of time that fell between a nomination to the U.S. Supreme Court and an election since 1950. According to the article,

“ There have been five other cases since 1950 when seats have opened within 150 days of a midterm election. In three of them, the nomination process was completed before the election (David Souter, Antonin Scalia, Arthur Goldberg). In the remaining two instances, both under President Eisenhower, the nomination was delayed until after the election (Potter Stewart, John Marshall Harlan II).[13][14] ”

The chart has been reproduced below with permission.[15]

See also

Footnotes

  1. ↑ Supreme Court of the United States, "Press Releases," June 27, 2018
  2. ↑ NBC News, "A guide to the Supreme Court nomination," accessed February 13, 2016
  3. ↑ CQ Press, "The Selection and Confirmation of Justices: Criteria and Process," accessed February 13, 2016
  4. ↑ New York Times, "Presidents, Picking Justices, Can Have Backfires," July 5, 2005
  5. ↑ 5.0 5.1 5.2 5.3 5.4 CRS Report for Congress, "Supreme Court Appointment Process: Roles of the President, Judiciary Committee, and Senate," July 6, 2005
  6. ↑ 6.0 6.1 6.2 6.3 CRS Report, "Senate Consideration of Presidential Nominations: Committee and Floor Procedure," March 9, 2015
  7. ↑ [https://fas.org/sgp/crs/misc/R44819.pdf Congressional Research Service, "Senate Proceedings Establishing Majority Cloture for Supreme Court Nominations: In Brief," April 14, 2017]
  8. ↑ Federal Judicial Center, "Biographical directory of federal judges," accessed January 26, 2017
  9. ↑ New York Times, "He could never have enough," July 31, 1988
  10. ↑ Politico, "Republicans, Beware the Abe Fortas Precedent," February 15, 2016
  11. ↑ ScotusBlog.com, "Supreme Court vacancies in presidential election years," February 13, 2016
  12. ↑ C.Q. Press (2010). American Political Leaders: 1789 - 2009, Washington, DC: C.Q. Press
  13. ↑ Axios, "How Kavanaugh compares to other SCOTUS nominations close to elections," July 12, 2018
  14. ↑ Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
  15. ↑ Elisabeth Moore, "Email exchange with Nicholas Johnston, Axios editor in chief," July 16, 2018
Retrieved from "https://ballotpedia.org/wiki/index.php?title=Process_to_fill_the_vacated_seat_of_Justice_Anthony_Kennedy&oldid=9122620"