I have written several articles law enforcement. A list of links have been provided at bottom of this article for your convenience. This article will, however address different aspects on Law Enforcement.
I had originally planned on breaking this topic into several parts, I have since decided against that tact. I am going to discuss the nomination process first, followed by the precedent for the nomination, ie the timing of the nomination. I will follow up with the vetting process and what questions are unconstitutional, but are asked anyway.
The Nomination Process and the Supreme Court
The president is granted the power to select Supreme court Justices in the Constitution under Article III.*The United States Supreme Court, the highest court in the land, serves as the final appeals court in our judicial system. The court often decides cases of national significance on issues like the constitutionality of same-sex marriage laws. The court is composed of eight associate justices and one chief justice. The justices are nominated by the president, but undergo a thorough Senate confirmation process. Once approved, justices may serve for life.
Selecting a Nominee
When a vacancy occurs on the Supreme Court, the president, with the advice and consent of the Senate, will appoint a new justice. The appointment process for selecting a new Supreme Court justice begins with a presidential nomination. While agencies such as the Department of Justice may offer recommendations on potential candidates, only the president has the authority to make an official nomination. Prospective candidates for a federal judgeship might be suggested to the president by senators, representatives or others. After the president submits a nomination to the Senate, the Senate Judiciary Committee holds hearings on the nominee to assess the candidate’s fitness for the job. After the committee votes to approve or reject a nominee, the nomination is voted on by the full Senate.
Senate Confirmation Hearings
The Senate confirmation hearings begin in the Senate Judiciary Committee, which conducts a thorough background check and examines the nominee’s published works, significant litigation matters, political affiliations and any potential conflicts of interest. The committee convenes a hearing where members discuss the nominee’s qualifications and ask questions regarding his experience. The committee then votes on whether to send the nomination to the full Senate for consideration. If a nomination proceeds, the full Senate will debate the nominee’s qualifications and issues such as how he might interpret the U.S. Constitution when ruling on politically controversial issues such as immigration laws. Once debate concludes, the Senate votes on whether to confirm the nomination. If approved, it sends a confirmation resolution to the president. The nominee is sworn in by taking two oaths: an oath required by the Judicial Act of 1789 and a constitutional oath required under Article IV of the Constitution. These oaths are typically administered by the chief justice or highest-ranking associate justice.
How Many Federal Judges Are There?
Supreme Court Justices, federal appeals court judges and district court judges are referred to as Article III judges. This is the section of the U.S. Constitution that establishes the federal judiciary. Article III judges also include those serving on the U.S. Court of International Trade. There are 860 Article III judge ships, plus an additional 10 temporary judge ships. There are also 20 judge ships established by Congress under Article I of the Constitution, including territorial courts and the U.S. Court of Federal Claims. Article III judges are appointed for life and can only be removed from office via impeachment. Because judges retire or die, vacancies in federal judge ships typically exist.
How Long Do Federal Judges Serve?
Most students learn in junior high school about the balance of power in the United States government and how the executive, legislature and judicial branches provide checks and balances for each other. But how can federal judges stay independent when they are appointed by the president and confirmed by the U.S. Senate? The framers figured it out.
Federal Court System
The federal court one hears about most is the United States Supreme Court. It is the highest court in the land. There is no appeal from a decision of this court. The federal court system also includes 94 district-level trial courts termed district courts, and 13 courts of appeals. District court decisions can be appealed to the court of appeals and court of appeals court decisions can be heard on appeal by the Supreme Court.
During Good Behavior
As the framers struggled to design a government for the United States, the balance of power was a fundamental building block. Congress would make laws, the president and the executive branch would implement them and the judicial branch would interpret them and determine if they lined up with the principals of the Constitution.
To implement this idea, it was essential that judges be independent. Under the Constitution, federal judges are all nominated by the President and confirmed by the United States Senate. If these judges could be readily removed by the President or Congress or have their salaries cut, they would be under pressure to make rulings desired by the other branches. For that reason, the founders built the concept of an independent judiciary into the Constitution.
Article III of the United States Constitution provides that the salaries of federal judges may not be diminished after they are hired. (Currently, federal district court judges make $208,000, circuit court judges $220,600, Supreme Court justices $255,300 and the chief justice $267,000.) Article III also states that judges hold office “during good behavior.” This applies both to Supreme Court justices and lower federal court judges as well, such as federal district court judges.
Exactly what does “during good behavior” mean in this context. It means that the judges serve for life, as long as they do not commit serious offenses, or until they voluntarily quit.
Impeachment for Bad Behavior
The Constitution does not define what “good behavior” for federal judges means. It does, however, talk about bad behavior in its discussion of impeachment. And in fact, the impeachment process is the only way federal judges can be removed from office.
The U.S. Constitution discusses the types of offenses a judge can be impeached for. They include treason, bribery and other “high crimes and misdemeanors.” Impeachment charges are brought in the House of Representatives by a vote of the majority of the members. If this happens, the judge is said to be impeached. But for the judge to be removed, the United States Senate must “convict” by a two-thirds vote.
This doesn’t happen very often. In the over 200 years that the United States has been a nation, only 15 federal judges have been impeached. Of those, only eight have been convicted and removed from office. Three others resigned from the bench after impeachment to avoid a conviction in the Senate.
On October 6th, 2018, a Senate vote of 50 to 48 officially confirmed Brett Kavanaugh as justice of the United States Supreme Court. Not only was this highly divisive decision among the closest votes for a Supreme Court nominee in American history, Kavanaugh himself – accused of numerous incidents of sexual assault, withholding documents from his time serving in the George W. Bush administration and lying under oath – goes down as the most unpopular Supreme Court justice appointment in modern history. A Quinnipiac University national poll found that nearly 50 percent of American voters, including 55 percent of women, opposed the judge’s confirmation. Naturally, this unprecedented unpopularity got many Americans thinking: “What about the removal of a Supreme Court justice?” The short answer is that removal is possible by way of impeachment, but strap in for some history lessons and you’ll find out why it’s not an easy task.
Impeachment: The Solution?
Decisions made by sitting Supreme Court justices are often felt throughout the country for decades, and sometimes even beyond. Not only does this add an incredible amount of gravity to the position, it makes the potential removal process quite the weighty proposition. To get to the meat of it, though, Vox senior correspondent Dylan Matthews put it pretty plainly: “It works just like impeaching a president.”
Simple as it sounds, Matthews is correct. Impeachment is not only the process needed to remove a Supreme Court justice before his or her term expires or before the justice chooses to retire, but the rules of impeachment here work just as they do with impeaching presidents. Article II, Section 4 of the Constitution of the United States of America lays it out, allowing for the removal of “the President, Vice President, and all civil Officers of the United States […] on Impeachment for and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”
Article III, Section 1 gives us a little more insight:
“The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office.”
It’s important to remember that impeachment is simply the process by which a governmental body levels charges against a government official. Like an indictment in the world of criminal law, an impeachment is only a statement of charges – impeachment itself does not mean removal from office, nor does it mean conviction for a crime. In fact, it’s just the beginning of the process.
The Hurdles of Impeachment
Though the Constitution grants us the ability to impeach, it has some rather problematic wording: Chiefly, the phrase “high Crimes and Misdemeanors” is more than a little vague. As ongoing debates indicate, it has no clear legal definition in this context.
A 2010 report for the Congressional Research Service by Elizabeth Bazan notes that “the precedents in this country reflect the fact that conduct which may not constitute a crime, but which may still be serious misbehavior bringing disrepute upon the public office involved, may provide a sufficient ground for impeachment.” But she goes on to say, crucially, that “What constitutes an impeachable offense is less than completely clear.”
In increasingly partisan modern legislatures, this often makes impeachment very much a matter of political will as much as it is one of legal analysis. More than that, there’s really not much historical precedent for impeaching a justice based on the Court’s rulings. Chief Justice William Rehnquist wrote in his 1992 book, “Grand Inquests,” that “judicial acts – [a justice’s] rulings from the bench – would not be a basis for removal from office by impeachment and conviction.”
Precedents for Supreme Court Impeachment
In light of the divided discourse over the meaning of “high Crimes and Misdemeanors” and other murky legalities, it helps to take a look at past calls for legal inquiries to better understand the possibility of impeaching justices serving on the Supreme Court. Keep in mind that these are cases where the potential for impeaching the justice simply entered the public discourse or inquiries into impeachment were held; they are not actual impeachment cases. Because there has only ever been one impeachment of a Supreme Court justice, these precedents are often the closest we get to what impeaching a Supreme Court justice actually looks like, especially in the past 200 years.
Sometimes, calls for impeachment come from the people. In the 1950s, billboards emblazoned with “Impeach Earl Warren” appeared across the Southern U.S. after the justice’s Supreme Court decision during historic desegregation rulings. Again in 2015, a Change.org petition called for Supreme Court Justice Antonin Scalia to step down after he made racist comments regarding the admissions plan at the University of Texas.
Most recently, in Justice Kavanaugh’s case, four women – Christine Blasey Ford, Deborah Ramirez, Julie Swetnick and one anonymous alleged victim – accused the judge of sexual assault, igniting a firestorm of controversy among an already disruptive nominee presented during a period of extreme partisanship. Additionally, former Deputy Assistant Attorney General Lisa Graves called for Kavanaugh’s impeachment for lying about stolen memos that the second Bush administration used in previous judicial confirmation hearings under oath. Months prior to that, former New York Times Executive Editor, Jill Abramson, called for an impeachment inquiry against Justice Clarence Thomas for allegedly lying about sexual abuses toward attorney and educator, Anita Hill.
While this gives us some insight on why people historically call for the removal of a Supreme Court justice, calls for impeachment – even from on high – are nothing more than formal requests or public, on-the-record suggestions. Acting on impeachment falls to the House of Representatives.
The Impeachment Process
While calls for impeachment kick-start the process, hard-and-fast Supreme Court justice impeachment rules don’t officially come into play until the House of Representatives steps in.
First, the majority of the House needs to approve an indictment, which is basically, a formal accusation to impeach. Because no controlling authority defines “high Crimes and Misdemeanors” (other than Constitutionally agreed-upon crimes like treason and bribery), members of the House ultimately decide their own standards for impeachment.
Moving past that debate, once articles of impeachment are passed, the U.S. Senate holds a trial to determine whether or not removal of the justice is reasoned and appropriate. This trial is very much akin to a criminal proceeding held at the state or federal level, but because there are not many impeachment rules committed to our country’s governing documents in ink, the Senate may decide to pass a resolution that determines the specific trial procedures before the impeachment trial begins. The trial itself, again like a criminal trial, will include witness testimony and the presentation of evidence from both supporting and opposing sides.
In order for the removal of the Supreme Court justice to occur, at least two-thirds of the Senate must vote to convict the justice. That two-thirds is a portion so large that it’s known as a super majority. Boiling it down to hard numbers, it means that the Senate needs 67 votes to pass a conviction.
Other Ways to Step Down
The Supreme Court justice term is a lifelong position. That’s where Article III, Section 1 of the Constitution really comes into play – that’s the part that says justices of the United States Supreme Court “shall hold their Offices during good Behaviour.”
That somewhat vague clause boils down to just a few possible outcomes for vacating the position of Supreme Court justice:
- Voluntary retirement.
- Voluntary resignation, as was the case with Supreme Court Justice Abe Fortas, who resigned before he could be impeached for accepting $20,000 in Wall Street bribes.
Different Types of Judges
How the federal court system tackles law-related issues is dependent upon the power granted to its constituents by the U.S. Constitution. A judge’s role in the court system is to determine issues relating to the law, with or without a sitting jury. While the courts in our judicial system are of broad assembly, the types of judges can generally be pared down to five different types.
The lowest -ranking court in the federal hierarchy, the magistrate courts are part of the U.S. District Court system, meaning they are special courts established by Congress, and appointed by the president with the Senate’s consent. Magistrate judges usually hold office for about 15 years, and handle only certain criminal and civil cases, depending on the consent of the parties.
U.S. District Court Judge
Ninety-four U.S. District Courts comprise the United States judicial system. Each state has at least one, but larger states require more, like California, which has four. Each district court has 2 to 28 judges. Because district courts are “courts of original jurisdiction,” often called “trial courts,” they are the place where most civil and criminal cases begin.
Court of Appeals Judge
Unless a defendant is declared not guilty, almost anyone who alleges a discrepancy regarding the law over the facts in a case may take it to a United States circuit court of Appeals. Different types of Courts of Appeal include the United States Court of Military Appeals and the United States Court of Veterans Appeals. The United States currently has 13, with a judge presiding in each court.
U.S. Supreme Court Judge
The U.S. Supreme Court is the ultimate deciding body when it comes to the judicial system. It sits in Washington, D.C. and is made up of nine judges, known as justices, with one Chief Justice who presides over all the others. If a party is dissatisfied with the decision made by both the U.S. District Court and the Court of Appeals, he can appeal to the U.S. Supreme Court in a legal procedure called Petition for a Writ of Certiorari.
How Long Does It Take to Become a Judge?
Although the Constitution does establish age requirements for presidents and for members of Congress, it does not mandate any age or other requirements for federal judges. It does not even contain a requirement that a judge attend law school and pass a bar exam to qualify to practice law. Supreme Court Justice Stanley Reed, who was appointed by President Franklin Roosevelt, did not earn a law degree, although he was a practicing lawyer. Some states allow people to pursue legal apprenticeships in lieu of law school.
How Old Is the Youngest Judge in the U.S.?
Abraham Lincoln appointed Thomas Jefferson Boynton to the federal bench when Boynton was just 25 years old. At age 34, William Howard Taft became the youngest judge appointed to a federal court of appeals in 1892. Later in his career, he was elected president of the United States, and eventually, he was appointed chief justice of the United States. The youngest person appointed to the Supreme Court of the United States was Joseph Story, who became a justice at the age of 32 back in 1811. Today, on average, people tend to be in their 50s when appointed as an Article III judge.
The Precedent for Choosing the Supreme Court Justice
It is now time to discuss the precedent of filing vacancies for the Supreme Court Justice. If a Supreme Court vacancy opens up between now and the end of the year, Republicans should fill it. Given the vital importance of the Court to rank-and-file Republican voters and grassroots activists, particularly in the five-decade-long quest to overturn Roe v. Wade, it would be political suicide for Republicans to refrain from filling a vacancy unless some law or important traditional norm was against them. There is no such law and no such norm; those are all on their side. Choosing not to fill a vacancy would be a historically unprecedented act of unilateral disarmament. It has never happened once in all of American history. There is no chance that the Democrats, in the same position, would ever reciprocate, as their own history illustrates.
History supports Republicans filling the seat. Doing so would not be in any way inconsistent with Senate Republicans’ holding open the seat vacated by Justice Antonin Scalia in 2016. The reason is simple, and was explained by Mitch McConnell at the time. Historically, throughout American history, when their party controls the Senate, presidents get to fill Supreme Court vacancies at any time — even in a presidential election year, even in a lame-duck session after the election, even after defeat. Historically, when the opposite party controls the Senate, the Senate gets to block Supreme Court nominees sent up in a presidential election year, and hold the seat open for the winner. Both of those precedents are settled by experience as old as the republic. Republicans should not create a brand-new precedent to deviate from them.
Power, Norms, and Election-Year Nominations
There are two types of rules in Washington: laws that allocate power, and norms that reflect how power has traditionally, historically been used. Laws that allocate power are paramount, and particularly dangerous to violate, but there is no such law at issue here. A president can always make a nomination for a Supreme Court vacancy, no matter how late in his term or how many times he has been turned down; the only thing in his way is the Senate.
Twenty-nine times in American history there has been an open Supreme Court vacancy in a presidential election year, or in a lame-duck session before the next presidential inauguration. (This counts vacancies created by new seats on the Court, but not vacancies for which there was a nomination already pending when the year began, such as happened in 1835–36 and 1987–88.) The president made a nomination in all twenty-nine cases. George Washington did it three times. John Adams did it. Thomas Jefferson did it. Abraham Lincoln did it. Ulysses S. Grant did it. Franklin D. Roosevelt did it. Dwight Eisenhower did it. Barack Obama, of course, did it. Twenty-two of the 44 men to hold the office faced this situation, and all twenty-two made the decision to send up a nomination, whether or not they had the votes in the Senate.
During the 1844 election, for example, there were two open seats on the Court. John Tyler made nine separate nominations of five different candidates, in one case sending up the same nominee three times. He sent up a pair of nominees in December, after the election. When those failed, he sent up another pair in February (presidential terms then ended in March). He had that power. Presidents have made Supreme Court nominations as late as literally the last day of their term. In Tyler’s case, the Whig-controlled Senate had, and used, its power to block multiple nominations by a man they had previously expelled from their party.
At the same time, in terms of raw power, a majority of senators has the power to seat any nominee they want, and block any nominee they want. Historically, that power of the majority was limited by the filibuster, but a majority can change that rule, and has. Norms long limited the filibuster’s use in judicial nominations in the first place, and violation of those norms led to its abolition. No Supreme Court nominee was filibustered by a minority of Senators until 1968. Senate Democrats attempted filibusters of William Rehnquist twice, and launched the first formal filibuster of a new appointment to the Court on partisan lines against Samuel Alito in 2005. Joe Biden participated prominently in the Rehnquist and Alito filibusters. Senate Democrats, led by Harry Reid and Chuck Schumer and joined by Biden, were the first to filibuster federal appellate nominees in 2003. After Republicans adopted the same tactic years later, Senate Democrats eliminated the filibuster for appellate nominees in 2013. Republicans extended that elimination to Supreme Court nominees in 2017.
So, today, Donald Trump has the raw power to make a Supreme Court nomination all the way to the end of his term. Senate Republicans have the raw power to confirm one at least until a new Senate is seated on January 3, and — so long as there are at least 50 Republican senators on that date — until Trump leaves office. Whether they should use this power, however, is a matter of norms, and of politics.
Norms are crucially important. If parties cannot trust that the other side will abide by established norms of conduct, politics devolves rapidly into a blood sport that quickly loses the capacity to resolve disagreements peaceably within the system. Those norms are derived from tradition and history. So let’s look at the history.
The Senate’s Precedents
In 2016, Barack Obama used his raw power to nominate Merrick Garland to replace Antonin Scalia in March of the last year of Obama’s term, with the Trump–Clinton election underway. The Republican majority in the Senate used its raw power to refuse to seat that nominee. Having reached that decision, the Republican majority did not even hold a hearing for an outcome that was predetermined.
In short: There have been ten vacancies resulting in a presidential election-year or post-election nomination when the president and Senate were from opposite parties. In six of the ten cases, a nomination was made before Election Day. Only one of those, Chief Justice Melville Fuller’s nomination by Grover Cleveland in 1888, was confirmed before the election. Four nominations were made in lame-duck sessions after the election; three of those were left open for the winner of the election. Other than the unusual Fuller nomination (made when the Court was facing a crisis of backlogs in its docket), three of the other nine were filled after Election Day in ways that rewarded the winner of the presidential contest:
- In February 1845, the Whigs (who had lost the Senate and the White House in the 1844 election) compromised in the lame-duck session to seat one of Tyler’s nominees, leaving the other for incoming Democrat James K. Polk.
- In December 1880 and January 1881, the Democrats (who had likewise lost the Senate and failed to regain the White House in 1880) confirmed one of Rutherford B. Hayes’s nominees and defeated the other, who was then successfully renominated by Hayes’s Republican successor, James A. Garfield.
- In 1956, Dwight Eisenhower’s pre-election recess appointment of a Democrat, William Brennan, in mid-October was confirmed as a lifetime appointment in Ike’s second term after he was reelected and the Democrats continued to hold the Senate.
The norm in these cases strongly favored holding the seat open for the conflict between the two branches to be resolved by the presidential election. That is what Republicans did in 2016. The voters had created divided government, and the Senate was within its historical rights to insist on an intervening election to decide the power struggle. Had there been no conflict between the branches to submit to the voters for resolution, there would have been no reason for delay.
When Anthony Kennedy retired in 2018, it was concluded that the norm in midterm-election years favors confirming a Supreme Court nominee regardless of which party holds the Senate. This, too, has become the norm for a reason: While the Senate can always reject a particularly objectionable nominee, it is hard to justify forcing the Court to work short-handed for years on end.
So what does history say about this situation, where a president is in his last year in office, his party controls the Senate, and the branches are not in conflict? Once again, historical practice and tradition provides a clear and definitive answer: In the absence of divided government, election-year nominees get confirmed.
Nineteen times between 1796 and 1968, presidents have sought to fill a Supreme Court vacancy in a presidential-election year while their party controlled the Senate. Ten of those nominations came before the election; nine of the ten were successful, the only failure being the bipartisan filibuster of the ethically challenged Abe Fortas as chief justice in 1968. Justices to enter the Court under these circumstances included such legal luminaries as Louis Brandeis and Benjamin Cardozo. George Washington made two nominations in 1796, one of them a chief justice replacing a failed nominee the prior year. It was his last year in office, and the Adams–Jefferson race to replace him was bitter and divisive. Woodrow Wilson made two nominations in 1916, one of them to replace Charles Evans Hughes, who had resigned from the Court to run for president against Wilson. Wilson was in a tight reelection campaign that was not decided until California finished counting votes a week after Election Day. Three of the presidents who got election-year nominees confirmed (Benjamin Harrison in 1892, William Howard Taft in 1912, and Herbert Hoover in 1932) were on their way to losing reelection, in Taft’s and Hoover’s cases by overwhelming margins. But they still had the Senate, so they got their nominees through.
Nine times, presidents have made nominations after the election in a lame-duck session. These include some storied nominations, such as John Adams picking Chief Justice John Marshall in 1801 and Abraham Lincoln selecting Chief Justice Salmon P. Chase in 1864. Of the nine, the only one that did not succeed was Washington’s 1793 nomination of William Paterson, which was withdrawn for technical reasons and resubmitted and confirmed the first day of the next Congress (Paterson had helped draft the Judiciary Act of 1789 creating the Court, and the Constitution thus required his term as a senator to end before he could be appointed to the Court). Two of Andrew Jackson’s nominees on the last day of his term were confirmed a few days later, without quibbles. In no case did the Senate reject a nominee or refuse to act on a nomination; why would they? Three of the presidents who filled lame-duck vacancies — Adams, Martin Van Buren, and Benjamin Harrison — had already lost reelection.
The Adams precedent is the most famous; back when people read basic American history in school, everybody knew about Adams and the Federalists in the Senate stocking the courts with “midnight judges.” That is part of the story of the first peaceful transfer of power after a democratic election in history. The crown jewel of the midnight judges, Chief Justice Marshall, went on to become the most influential jurist in American history, entrenching the Federalist Party’s theories of the Constitution for many years after the party ceased to exist. Marshall served into Andrew Jackson’s presidency over three decades later, and his decisions still guide the American constitutional practice of judicial review.
In addition to Marshall, two of the other lame-duck appointees would go on to lead the Court: Salmon P. Chase, Abraham Lincoln’s Treasury secretary, was appointed Chief Justice by Lincoln a month after the 1864 election, and Harlan Fiske Stone, appointed by Calvin Coolidge in January after the 1924 election, would later be elevated by Franklin Roosevelt to Chief Justice in 1941. Lincoln was the only president with a favorable Senate to have a vacancy open just before the election (in mid-October, with the death of Dred Scott author and Lincoln bête noire Roger Taney) and wait until he had won to make a nomination. He had his own strategic reasons to want his own position fortified before using the plum position of Chief Justice to rid himself of Chase, who had angled for Lincoln’s job in 1864 and was trusted by Lincoln ideologically but not politically.
A few of these late-term nominations — but only a few — were made with an eye to political concession. Hoover required two tries to fill a vacancy with a Republican in 1930. When Oliver Wendell Holmes retired in 1932, Hoover was mired in the Depression and fighting for his political life. He chose a Democrat: the liberal, Jewish New Yorker Cardozo, then the most prominent state-court judge in the country and widely seen as a worthy successor to Holmes’s legacy as a common-law judge. Benjamin Harrison, having filled one seat in July 1892 with Republican George Shiras, picked Democrat Howell Jackson for his second choice in the lame-duck session in January 1893. Jackson was not just any Democrat: like his predecessor, Lucius Q. C. Lamar, Jackson had served in the government of the Confederacy. He was also a Harrison family friend. These were, however, political choices; the other 17 vacancies were filled by men from the party holding the presidency and the Senate.
The bottom line: If a president and the Senate agree on a Supreme Court nominee, timing has never stopped them. By tradition, only when the voters have elected a president and a Senate majority from different parties has the fact of a looming presidential election mattered. When there is no dispute between the branches, there is no need to ask the voters to resolve one.
Political Games and Previous Statements
As MSNBC’s Sahil Kapur rounds up, Democrats are already issuing threats of retaliation if Republicans replace Ginsburg late in Trump’s term, in light of the Republican rejection of Garland and the widespread expectation that Trump will lose reelection to Joe Biden. Their arguments for doing so, however, are a transparent sham.
Tim Kaine, the Democrats’ 2016 vice presidential nominee, rests his case against a nomination — and for Court-packing in retaliation — on historical precedent:
“If they show that they’re unwilling to respect precedent, rules and history, then they can’t feign surprise when others talk about using a statutory option that we have that’s fully constitutional in our availability. I don’t want to do that. But if they act in such a way, they may push it to an inevitability. So they need to be careful about that.” . . . [Kaine] said confirming a nominee of President Donald Trump this year could compel Democrats to consider adding seats to the high court.
Based on the history set forth above, however, Kaine does not have a leg to stand on talking about “precedent, rules and history.” He’s arguing for Republicans to adopt a new rule contradicting traditional practice. For good measure, he shows that he doesn’t know the history behind the rejection of Garland, and throws in a barely concealed dog-whistle charge of racism: “We knew basically they were lying in 2016, when they said, ‘Oh, we can’t do this because it’s an election year.’ We knew they didn’t want to do it because it was President Obama.” In fact, Obama’s own White House counsel admitted that she would have recommended the same course in 2016 had the parties been reversed.
While some Republicans (notably John Thune) are vocally ready to confirm an election-year nominee, two Republican senators who backed the rejection of Garland have expressed concerns about moving forward under these circumstances. One, Lisa Murkowski, voted against Justice Kavanaugh and is not really a must-win vote. But the other, former Judiciary Committee chairman Charles Grassley, is more influential, and still sits on the committee (now chaired by Lindsey Graham), where all twelve Republicans would be needed to pass a nomination.
Grassley has repeatedly suggested that he would not go forward with a nomination if he was still chairman, because it would look hypocritical to go back on the Garland precedent and confirm a nominee in an election year. But an election year alone is not the historical rule. It is not what Mitch McConnell said at the time, and it is not what Grassley said at the time, either. The fact of divided government was what connected their concerns about an election-year nomination to historical practice.
McConnell, in his initial 2016 press conference after Scalia’s death on February 23, 2016, explicitly invoked the relevant historical precedents (emphasis added):
The next president should make this nomination. The — that certainly is supported by precedent. You’d have to go back to 1888 when Grover Cleveland was in the White House to find the last time a Senate of a different party from the president confirmed a nominee for the Supreme Court in an election year, . . . Who should make the decision? . . . the nomination should be made by the president the people elect in the election that’s underway right now…the overwhelming view of the Republican Conference of the Senate, in the Senate, is that this nomination should not be filled, this vacancy should not be filled by this lame-duck president. That was the view of Joe Biden when he was chairman of the Judiciary Committee in 1992. . . . We know what would happen if the shoe was on the other foot. We know what would happen. A nominee of a Republican president would not be confirmed by a Democratic Senate when the vacancy was created in a presidential election year. That’s a fact.
McConnell repeated the point about divided control of the Senate and White House and the not-since-Fuller-in-1888 historical precedent a few weeks later, in a nationally televised Fox News Sunday interview on March 20, 2016, with Chris Wallace:
I think what we need to focus on is the principle, the principle. Who ought to make this appointment? You have to go back 80 years to find the last time a vacancy on the Supreme Court created in a presidential election year was filled. You have to go back to 1888 when Grover Cleveland was in the White House to find the last time when a vacancy was created in a presidential year, a Senate controlled about it party opposite the president confirmed.
The political reality behind the so-called “Biden rule” frequently invoked by McConnell and Grassley in 2016 is that the Senate in 1992 was held by Democrats, and by warning the first President Bush against an election-year nomination, Biden was asserting the partisan prerogatives of the Democratic Senate majority. In fact, Biden in his June 1992 speech on refusing to confirm any election-year Bush nominees leaned explicitly on the different standards applicable to divided government:
What distinguished the Reagan-Bush Justices from these historical parallels . . . is that half of them have been nominated in a period of a divided government. . . . Since 1968, Republicans have controlled the White House for 20 of 24 years. Democrats have controlled the Senate for 18 years of this period. The public has not given either party a mandate to remake the Court into a body reflective of a strong vision of our respective philosophies. . . .
If in this next election the American people conclude that the majority of desks should be moved on that side of the aisle, there should be 56 Republican Senators instead of 56 Democratic Senators, 44 Democratic Senators instead of 56 or 57 Democratic Senators, and at the same time if they choose to pick Bill Clinton over George Bush, we will have a divided Government and I will say the same thing to Bill Clinton: In a divided Government, he must seek the advice of the Republican Senate and compromise. Otherwise, this Republican Senate would be totally entitled to say we reject the nominees of a Democratic President who is attempting to remake the Court in a way with which we disagree.
To be sure, McConnell did not spell out all the elements of his precedential argument every time he spoke on the subject, and other Republican senators regularly couched their responses in broad terms about a pending election that did not grapple with the historical precedents. But Grassley, like McConnell, repeatedly cited the precedents on which his committee was relying:
- February 22, 2016, in a floor statement: “Republicans hold the gavels in the Senate. And a term limited Democrat in the twilight of his presidency occupies the White House. . . . Justice Scalia’s death marks the first time a sitting Supreme Court Justice has passed away in a presidential election year in 100 years. And it’s the first time a sitting Supreme Court Justice passed away in a presidential election year during divided government since 1888…”
- February 23, 2016, in a Judiciary Committee letter to McConnell on not holding hearings: “Not since 1932 has the Senate confirmed in a presidential election year a Supreme Court nominee to a vacancy arising in that year. And it is necessary to go even further back — to 1888 — in order to find an election year nominee who was nominated and confirmed under divided government, as we have now.”
- February 26, 2016, in an op-ed entitled “Giving the People a Voice — The Supreme Court Vacancy”: “History supports this practice. Not since 1888 has an election year nominee been confirmed during a divided government to fill a vacancy occurring in the same year.”
- May 10, 2016, in a Medium post on “Debunking SCOTUS Myths”: “In 2012, the American people re-elected Barack Obama as President of the United States. In 2014, the American people elected their respective members of Congress, handing over control of the United States Senate to Republicans. . . . Nominating and confirming a Supreme Court justice in a presidential election year, particularly under divided government, would be unprecedented in modern American history. It has been 128 years since a Supreme Court justice was nominated and confirmed in a presidential election year while the president’s opposing party controlled the Senate (1888, President Grover Cleveland, Justice Melville Fuller).”
Mike Davis, former chief counsel for nominations for Senator Grassley on the Senate Judiciary Committee and now president of the Article III Project, says that “Senator Grassley was the key figure in keeping the Scalia seat open, and on President Trump’s historic transformation of the federal judiciary. Chairman Graham has said that he would move forward with a nomination, and I am confident that Senator Grassley will fully support that nomination.” Grassley has emphasized publicly that the decision would be Graham’s, and Davis notes that Grassley has said that he would support Graham’s decision. So, whatever Grassley’s misgivings, they should not deter Republicans from moving forward.
The Nuclear Option
The final concern expressed by those hesitant to confirm a new justice in an election year or a lame-duck session is that Democrats would use this as an excuse for ideological Court-packing that would destroy the Court’s legitimacy and, ultimately, the rule of written law in America. This is not a chimerical concern, but the Democrats’ behavior is not something Republicans can control in any event, and allowing them to threaten the destruction of the constitutional republic in order to cow Republicans out of following tradition would set a bad precedent of its own.
Democrats may pack the Court anyway. A noisy faction of them, including failed presidential contenders on Biden’s vice-presidential shortlist, have already committed to Court-packing. Kapur reports that “the Democratic National Committee is poised to add language to the party’s 2020 platform endorsing ‘structural court reforms to increase transparency and accountability’ and accusing Republicans of having “packed our federal courts with unqualified, partisan judges” — efforts to justify Court-packing and blur the term’s meaning that predate any move to replace Ginsburg.
Or they may not. Biden is on record opposing Court-packing, for whatever influence he may have after the election. Bernie Sanders has opposed it, too. They and other experienced Democrats recognize the potentially explosive political consequences of openly making war on the independence of the judiciary, given how badly it played even for Franklin D. Roosevelt at the pinnacle of his popularity. Having history on their side would make the Republican defense against Court-packing a formidable base from which to launch a major last-ditch resistance on behalf of the Constitution entering the 2022 midterms. The post-Kavanaugh rally of Republican Senate candidates in 2018, while their colleagues in the House were sinking, testifies dramatically to the galvanizing effect that fights over the Court have on Republican voters.
Few things contributed more to the Republican Party’s institutional inability to resist a hostile takeover by Donald Trump in 2016 than a widespread sense that the party would not even fight for its own stated principles if it could find any excuse not to. Nothing is more central to Republicans’ stated principles than control of the Supreme Court by Justices who believe in the written Constitution. No practical application of those principles is more iconic and visceral in its importance than social conservatives’ long labors against Roe v. Wade, a battle in which John Roberts seems to require more reinforcements before he will act.
Republicans should not discard the rule of law or traditional norms to achieve their ends, but a Ginsburg vacancy, if one happens, would require Republicans only to act within the law and in accord with tradition. Woe to their future if they shrink from that.
What Does the Constitution Say About Religion in Regards to Appointments
Article Six of the United States Constitution establishes the laws and treaties of the United States made in accordance with it as the supreme law of the land, forbids a religious test as a requirement for holding a governmental position, and holds the United States under the Constitution responsible for debts incurred by the United States under the Articles of Confederation.
All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States. So there it is, religion can not be used as criteria for the selection of Federal Appointment. The question cannot even be asked. However, members of congress ask it all the time when it comes to vetting court appointments. Which shows that these members of congress, either have no real knowledge of the Constitution, or they simply don’t care. I will let the reader decide that issue.
Do to the length of this article, I have decided to discuss the nomination of Amy Coney Barrett in a another article. Hopefully after reading this article, you will have a better understanding of not only the Supreme Court and the replacement of its members. Also that you will understand the precedent behind the Presidents’ appointment. The president is elected to a 4 year term. Even Ruth Bader Gingsburg, a staunch opponent, in 2016, she said that the president is “elected for four years not three years.” Also there is an argument postulated that we should wait and let the voter decide who is chosen, by waiting till after the election. My belief is that the voter already decided by voting for the President in 2016. They chose a person who gets things done, and who believes in and loves not only the country but the constitution.
legalbeagle.com, “How Are Supreme Court Justices Appointed?” By Jen Gehring; minnpost.com, “What does the Constitution say about picking Supreme Court justices? Not much,” By Eric Black; nationalreview.com, “History Is on the Side of Republicans Filling a Supreme Court Vacancy in 2020,” By Dan Mclaughlin;
Article III of the Constitution establishes and empowers the judicial branch of the national government. The very first sentence of Article III says: “The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.” So the Constitution itself says that we will have a Supreme Court, and that this Court is separate from both the legislature (Congress) and the executive (the President). It is up to Congress to decide what other federal courts we will have. But one of the first things Congress did in 1789, the year the new government got going, was to set up a federal judiciary, including the Supreme Court—with six Justices. Today, we have a three-level federal court system—trial courts, courts of appeals, and the Supreme Court—with about 800 federal judges. All those judges, and the Justices of the Supreme Court, are appointed by the President and confirmed by the Senate.
Why did the Framers guarantee that we would have a Supreme Court (unless the Constitution was amended—a very difficult thing to do) but leave open the possibility that there would be no other federal courts, depending on what the politicians in Congress decided? The answer tells us something about the debates at the time the Constitution was written. To some people in the United States at that time, the federal government seemed almost like a foreign government. Those people’s main loyalty was to their states; the federal government was far away, and they did not feel that they had much of a say in who ran it. If you thought that way, an extensive system of federal courts, staffed by judges who were appointed by the President and who might not have a lot of connections to the state and its government, amounted to allowing the “foreign,” federal government to get its tentacles into every corner of the nation. Other Framers, though, thought that the federal government could not be effective unless it had courts to help enforce its laws. If everything were left up to state courts, states that were hostile to the new federal government might thwart it at every turn.
The compromise was that, just as the Constitution and federal laws would be the “supreme Law of the Land,” there would definitely be a Supreme Court—so a court created by the federal government, with judges appointed by the President, would get the last word, in case state courts did something that was too threatening to the new nation. But the extent and shape of the rest of the federal court system—the degree to which the federal government would be present around the nation—would get hashed out in day-to-day politics. The result is the large and powerful federal judiciary we have today.
The second sentence of Article III, Section 1, says: “The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.” It’s pretty clear what’s going on here: this provision is designed to make sure that the judges are independent. They can decide cases according to what they think the law requires, without worrying about whether some powerful person—or even a majority of the people—will object. As Alexander Hamilton put it in The Federalist No. 78, judicial independence “is the best expedient which can be devised in any government to secure a steady, upright, and impartial administration of the laws.”
The language about “holding offices during good behaviour” has been interpreted to mean that the only way federal judges can be removed from office is if the House of Representatives impeaches them, and the Senate convicts them, of “treason, bribery, or other high crimes and misdemeanors.” Only fifteen judges have ever been impeached (that is, formally accused by the House of Representatives) and only eight have been convicted and removed from office. For practical purposes, any judge who does not commit a crime (or do something equally bad) has “lifetime tenure” and will stay in office until he or she dies or voluntarily steps down. And, as the provision says, Congress and the President cannot retaliate against judges by cutting their salaries.
Most state court judges—unlike federal judges—are elected, not appointed; and some have to be re-elected, or approved by the voters, every few years. Those systems of elected judges are often criticized just because, unlike the federal system, judges might think they have to do politically popular things, or build up political connections, in order to keep their jobs, even if that means ruling in a way that doesn’t follow the law. Very few people think that federal judges should be elected. There are, though, some critics of lifetime tenure: those critics say that lifetime tenure causes judges to stay in their positions longer than they should—after they have become too old to do their job well, either just because of age or because they are out of touch with modern times. Maybe, these critics say, judges should be appointed for a fixed term of years—say 14 or 18 years—with no chance of being reappointed. They still couldn’t be fired and, since they would have to leave at the end of their term, they would have no reason to shape their rulings in a way that pleases powerful figures or popular opinion. But a change like this would almost certainly require a constitutional amendment, and the chance of its happening is extremely small.
Although the guarantee that judges will have lifetime tenure seems simple, it actually raises a difficult question in our system. In the federal government, there are many officials who do judge-like things—think of military courts-martial, for example—but who do not have the lifetime tenure that Article III seems to require for federal judges. Many of these officials are members of, or work for, administrative agencies—what is sometimes called the federal bureaucracy. Officials like this will rule on whether, for example, a company has used advertisements that deceive consumers, or a business has wrongly tried to prevent its workers from joining a union, or the government has not paid a person the disability benefits he or she is entitled to. Thousands of decisions of this kind are made every year by federal officials who are not considered “judges” for purposes of Article III, and therefore do not have lifetime tenure, but who are doing the kinds of things judges usually do: settle disputes between people. These administrative officials usually serve only for a few years, after which the President can replace them. There are safeguards to prevent officials of this kind from being openly biased or unfair, but because they are appointed so frequently, they are often thought to be more responsive to day-to-day politics than judges are.
Why do we allow these officials to resolve disputes in the way that judges do, even though they do not have the lifetime tenure guarantee that judges have? The answer is complicated, but the basic idea is that you generally have a right to appeal from a decision of one of these officials to a judge whose independence is protected by lifetime tenure. So judges—including, potentially, the Supreme Court—will have the final word, and that, the Supreme Court has said, is enough to maintain the principle of judicial independence enshrined in Article III.
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