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 Antonin Scalia

From Ballotpedia
Jump to: navigation, search
See: Supreme Court vacancy, 2017: An overview


Historic facts about the nominating process:
  • The last president to nominate justices in the twilight of his presidency was Lyndon Johnson (D) in 1968. Neither nominee was confirmed.
  • Andrew Jackson nominated two justices on his last full day in office in 1837. Only one was confirmed.
  • The most recent justice to be confirmed in the last year of a presidency was Anthony Kennedy by Ronald Reagan (R) in February of 1988. However, he was nominated in November 1987, 15 months before Reagan left office.


    • Antonin Scalia.jpg
    For more on the 2017 nomination, see Supreme Court vacancy, 2017: An overview

    Justice Antonin Scalia died on February 13, 2016, at 79 years of age. A member of the U.S. Supreme Court for three decades, Scalia was considered a champion of originalism and the dominant conservative voice of the court.[1][2]

    His unexpected death created a vacancy in the Supreme Court. Several members of the U.S. Senate quickly made public comments on whether President Barack Obama (D) should nominate a replacement. U.S. Sen. Patrick Leahy (D-Vt.) said, "The American people deserve to have a fully functioning Supreme Court. The Supreme Court of the United States is too important to our democracy for it to be understaffed for partisan reasons. It is only February. The president and the Senate should get to work without delay to nominate, consider and confirm the next justice to serve on the Supreme Court.”[2]

    Some leading Republicans suggested that the individual elected to the presidency in November 2016 should have the right to make the nomination. U.S. Sen. Majority Leader Mitch McConnell (R-Ky.) said in a statement: "The American people should have a voice in the selection of their next Supreme Court justice. Therefore, this vacancy should not be filled until we have a new president."[3] A spokesperson for U.S. Sen. Mike Lee (R-Utah), Conn Carroll, tweeted, "What is less than zero? The chances of Obama successfully appointing a Supreme Court Justice to replace Scalia?"[4]

    Senate Minority Leader Harry Reid (D-Nev.) charged, "It would be unprecedented in recent history for the Supreme Court to go a year with a vacant seat. Failing to fill this vacancy would be a shameful abdication of one of the Senate's most essential Constitutional responsibilities."[5]

    On March 16, 2016, President Barack Obama announced Merrick Garland as his nominee to fill the late Justice Antonin Scalia's seat on the United States Supreme Court.[6] At the time of his nomination, Garland was serving as chief judge of the United States Court of Appeals for the District of Columbia Circuit. He joined the court in 1997 after being nominated by former President Bill Clinton.[7] In 2010, Garland was considered a front-runner for nomination to the Supreme Court of the United States following the retirement of Justice John Paul Stevens. Justice Elena Kagan was chosen instead.[8]

    In accordance with the sine die adjournment of the 114th Congress, Judge Garland's nomination was returned to President Obama. 294 days passed between Judge Garland's nomination on March 16, 2016, and the return of his nomination on January 3, 2017. The 294-day period set a record for the longest interval from nomination to Senate action for any Supreme Court nominee, besting the 125-day interval attending Justice Louis Brandeis' nomination in 1916.[9]

    On January 31, 2017, President Donald Trump nominated Neil Gorsuch to succeed Justice Antonin Scalia on the U.S. Supreme Court. Scalia was a member of the U.S. Supreme Court for three decades.[10] President Trump said regarding the nomination,[11]

    “

    I am proud to announce the nomination of Judge Neil Gorsuch for Justice of the Supreme Court ... This has been the most transparent and most important Supreme Court selection process in the history of our country and I wanted the American people to have a voice in this nomination. Judge Gorsuch has a superb intellect, an unparalleled legal education, and a commitment to interpreting the Constitution according to its text. He will make an incredible Justice as soon as the Senate confirms him. [12]

    		”

    Confirmation hearings on Gorsuch's nomination before the Senate Judiciary Committee were held from March 20-23, 2017. On April 3, 2017, voting 11-9 on party lines, the Senate Judiciary Committee reported Neil Gorsuch's nomination to the full U.S. Senate. That same day, Senate Democrats announced that they had a sufficient number of votes to sustain a filibuster against the nomination of Judge Neil Gorsuch to the U.S. Supreme Court. In anticipation of an expected filibuster, Senate majority leader Mitch McConnell (R-Ky.) indicated that he was prepared to restrict the use of filibusters on Supreme Court nominations, referred to as the nuclear option. The Senate voted on April 6, 2017, to end the use of filibusters on all presidential nominations and proceeded to vote to end debate on the Gorsuch nomination. Gorsuch was confirmed on a recorded 54-45 vote of the Senate on Friday, April 7, 2017, and he received his commission on Monday, April 10, 2017.[13]

    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.[14]

    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.[15]

    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).[16]

    Supreme Court confirmation

    The following section describes the process for filling a vacated Supreme Court seat as it was at the beginning of the process to replace Justice Scalia.

    • 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.[17][18]
    • 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.[17][18]
    • 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.[17][18]
    • The debate in the Senate is scheduled by the Senate majority leader in consultation with the minority leader. In 2013, the Senate lowered the threshold to close debate on most nominations to a simple majority from 60 votes. But the change did not affect Supreme Court nominees, whose confirmation requires 60 votes to invoke cloture and end debate and proceed to a confirmation vote.[17][18]
    • 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.[17][18][19]

    Historic context

    See also: Would it be “unprecedented in recent history” for a vacancy on the Supreme Court to last a year?

    Vacancies: departure date to swearing-in of successor

    As of Scalia's death, 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—was 72.5 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 391 days. Justice Abe Fortas retired on May 14, 1969, in the wake of a series of ethics scandals.[20] 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.[21]

    The second 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.[22]

    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 was 60.9 days prior to Scalia's death. The vacancies between Fortas and Blackmun and Powell and Kennedy were still the longest, at 363 days and 222 days, respectively.

    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 was 124 days as of Scalia's death. The longest vacancy was, again, between the terms of Fortas and Blackmun, at 363 days. But the second longest, under this definition, was 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.[23]

    See also

    Footnotes

    1. ↑ The New York Times, "Justice Antonin Scalia, Who Led a Conservative Renaissance on the Supreme Court, Is Dead at 79," February 13, 2016
    2. ↑ 2.0 2.1 The Hill, "Justice Antonin Scalia dead," February 13, 2016
    3. ↑ CNBC, "U.S. Senate leader McConnell says wait on replacing Scalia," February 13, 2016
    4. ↑ The Huffington Post, "Conservatives Quickly Refuse Any Obama Court Replacement After Antonin Scalia's Death," February 13, 2016
    5. ↑ Talking Points Memo, "Harry Reid To Republicans: You Better Not Block Us From Replacing Scalia," February 13, 2016
    6. ↑ NPR, "President Obama To Announce Merrick Garland As Supreme Court Nominee," accessed March 16, 2016
    7. ↑ United States Court of Appeals District of Columbia Circuit, "Merrick B. Garland," accessed August 22, 2013
    8. ↑ Los Angeles Times, "Profiles of three possible successors to Justice John Paul Stevens," April 10, 2010
    9. ↑ NBC News, "Merrick Garland Now Holds the Record for Longest Supreme Court Wait," July 20, 2016
    10. ↑ The New York Times, "Justice Antonin Scalia, Who Led a Conservative Renaissance on the Supreme Court, Is Dead at 79," February 13, 2016
    11. ↑ The White House, "President Donald J. Trump nominates Neil Gorsuch to the United States Supreme Court," January 31, 2017
    12. ↑ Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
    13. ↑ Politico, "Gorsuch confirmation hearing set for March 20," February 16, 2017
    14. ↑ NBC News, "A guide to the Supreme Court nomination," accessed February 13, 2016
    15. ↑ CQ Press, "The Selection and Confirmation of Justices: Criteria and Process," accessed February 13, 2016
    16. ↑ New York Times, "Presidents, Picking Justices, Can Have Backfires," July 5, 2005
    17. ↑ 17.0 17.1 17.2 17.3 17.4 CRS Report for Congress, "Supreme Court Appointment Process: Roles of the President, Judiciary Committee, and Senate," July 6, 2005
    18. ↑ 18.0 18.1 18.2 18.3 18.4 CRS Report, "Senate Consideration of Presidential Nominations: Committee and Floor Procedure," March 9, 2015
    19. ↑ Federal Judicial Center, "Biographical directory of federal judges," accessed January 26, 2017
    20. ↑ New York Times, "He could never have enough," July 31, 1988
    21. ↑ Politico, "Republicans, Beware the Abe Fortas Precedent," February 15, 2016
    22. ↑ ScotusBlog.com, "Supreme Court vacancies in presidential election years," February 13, 2016
    23. ↑ C.Q. Press (2010). American Political Leaders: 1789 - 2009, Washington, DC: C.Q. Press
    Retrieved from "https://ballotpedia.org/wiki/index.php?title=Process_to_fill_the_vacated_seat_of_Justice_Antonin_Scalia&oldid=8154427"