The pinnacle of the federal judiciary system in the United States of America is the Supreme Court. The Supreme Court is the highest court in the land, having the ultimate authority in matters involving the constitution. The constitutional interpretation and decisions reached by the court are final becoming the law of the land. With such substantial importance given to each ruling, becoming a Supreme Court Justice yields immense power affecting generations to come. It is no surprise then that the nomination process to an empty seat on the highest court in the land can become highly political and very partisan. Much behind the scenes work is done by both the executive and legislative branches of government in compiling a list of potential justices. The unfolding of the nomination process to the Supreme court has changed and evolved over time, becoming increasingly contentious with every new nominee.
The power to appoint Supreme Court Justices is given to the President of the United States of America, in Article 2 of the constitution. The President can receive advice from the Senate, who have the final say by casting a vote to either confirm or deny a potential justice. The United States Constitution does not establish any limitation or conditions when it comes the Supreme Court, giving the president vast leeway in choosing a nominee who is aligned politically or ideologically aligned. The issues regarding the number of justices, their qualifications and responsibilities have been largely settled by law and tradition. The president is also allowed to make recess appoints to the court, but the appoint expires at the end of the next Senate session.
In choosing a nominee the president is careful to choose a justice that will not stray away from the administrations agenda once the nominee is confirmed. The potential justice is usually associated with the same political party which makes them aligned on many issues. Other considerations are given to the selection process including ethics and competency. It is no surprise then that a nominee that would help uphold and implement favorable policies would make their way to the top of the list. The most important factor in choosing a nominee to the court is the probability that the nominee can clear a Senate vote. Choosing a contentious or controversial nominee can hinder the chances that the nomination will succeed, a candidate that is in line with the president and the Senate plays a key role (Johnson 2004). In the most recent Supreme Court nomination, Judge Kavanagh tested how unpopular a candidate can be and still become confirmed. Setting a new precedent that public opinion of a nominee has no bearing in the decision-making process.
The president typically does not make the decision alone, many advisers are consulted before the final decision is made. The president can seek advise from his own white house counsel, but other sources can be utilized. Politicians and the Department of Justice are usually consulted when establishing a list of potential nominees. These lists can be done before a Justice is set to retire. Numerous individuals and outside groups can also seek to influence the president including the American Bar Association, non-legal interest groups, and potential justices lobbying for consideration. The Republican Party has recently tapped the Federalist Society for Law and Public Policy Studies, which is a conservative organization that mentors conservative lawyers for potential lifelong federal appointments. All vacancies on the court require its own nomination process. If the Chief Justice seat is vacant and an associate justice is nominated, there would need to be a nomination process for both the Chief Justice position and the vacant position left by the associate justice (McLeod 2013). When the list of potential nominees is completed, the Federal Bureau of Investigations (FBI) begins a back-ground security check on each nominee before the president submits its final decision to the Senate. The Judge Kavanagh confirmation hearing has also highlighted the thoroughness and effectiveness of the FBI when conducting background checks on nominees.
The next stop in the path to the Supreme Court is the Senate Judiciary Committee. The committee conducts its own investigation of the nominee using the FBI background check as reference. The committee typically gives the nominee a questionnaire to fill out which can include personal information like finances, but also to clarify past rulings or statements that he nominee may have stated in the past.
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