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Study Notes

Supreme Court appointments process

AQA, Edexcel, OCR, IB

Last updated 22 Mar 2021

The appointments process to the Supreme Court can roughly be broken down into four stages. All appointments to the Supreme Court will go through this process and the process itself can take many months to complete.

1) A Vacancy Occurs

Firstly a vacancy on the Supreme Court must occur. This can come about through the death of a sitting justice, retirement or impeachment. Remember that justices hold their offices for life in good behaviour

2) The Search Begins

After a vacancy has been identified, the President will typically instruct the Executive Office to begin the search for a new justice. Typically the President will seek advise from the Executive Office, from Congress (especially the Senate Judiciary Committee), and professional bodies such as the American Bar Association. Nominees for appointments can come a range of places including lower federal courts, the executive branch, the legislative branch and academia such as Professors of Law at major US Universities.

3) FBI Background Checks and ABA Approval

Once a nominee has been identified, the FBI will undertake background checks on the individual to make sure that they are clean of any indiscretions. In addition to this the nominee will have an interview with the President themselves. Finally at this stage the American Bar Association will give the nominee an informal rating.

4) Senate Hearings and Confirmation

Once all the above has been completed the Senate Judiciary Committee will hold confirmation hearings. This will involve the candidate, people who have worked with them, friends and enemies. All will give evidence to the committee about the suitability of the nominee for the Supreme Court. If a hearing goes badly, the nominee may decide to withdraw from the process. At the end of the hearings a vote will be taken of the committee. The process then moves to a vote on the Senate floor which requires a simple majority. If a nominee lost the committee vote, is it likely that they would lose the Senate floor vote too.

The process of appointing a Supreme Court Justice is long and arduous, but it has been designed that way to ensure the best justices are appointed to the court in the first place.

Notable Appointments:

Earl Warren – Chief Justice Warren was appointed by Eisenhower, and despite his initial conservative credentials turned out to be quite a liberal on the bench. Eisenhower remarked that it was the ‘biggest god dam mistake of his life’

Robert Bork – Ronald Reagan nominated the controversial conservative justice Robert Bork. The failed nomination was subject to a negative ad campaign which resulted in him losing the floor vote in the Senate. The advert can be seen below

Robert Bork Negative Ad

David Souter – Souter was appointed by Republican George H W Bush, and surprisingly turned out to be one of the most liberal members of the Supreme Court.

Presidents will seek to leave a legacy through the appointment of Supreme Court Justices. They will look to appoint justices who are in line with their ideological persuasion. The reason for this is that the Supreme Court will outlive the presidency, therefore the Court can act as an echo chamber for the future.

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