Lady Justice and Lady Liberty. Strong female symbols have long been used to represent the embodiment of American ideals and freedom.
So, it almost seems fitting that two women — the late Supreme Court Justice Ruth Bader Ginsburg and President Donald Trump’s presumptive replacement nominee Amy Coney Barrett — are at the heart of tensions over a vacancy on the country’s highest court.
But has the Supreme Court appointment process always been so controversial? What is the procedure modeled after, and how does it stack up against other countries? And how rare is it for a seat to come open mere weeks before the general election?
For answers, we checked in with Rebecca Gill, a UNLV political scientist whose research specialties include judges, judicial selection, and gender bias.
Here, Gill offers a primer on SCOTUS history, how nominations work, our forefathers’ unintended infusion of politics into the process, and ways that the next justice might influence the nation for hundreds of years to come.
First some background: From where does the United States' Supreme Court nomination process derive, and how does it work?
The selection process for Supreme Court justices comes directly from Article II in the Constitution, which gives the president power to appoint justices "by and with the advice and consent of the Senate." Of course, the actual process has evolved over time to become the nomination and confirmation hearings procedure we recognize today. There's nothing in the Constitution that gives precise direction on how the Senate gives “advice and consent.” Here’s how it typically works (specifically for Supreme Court justices, since the process is a bit different for lower federal judges):
First, after the vacancy occurs, the president drafts a list of nominees that he intends to consider. Presidents have approached the development of this list in a number of different ways over the years. Typically, the president relies upon his aides and folks from the Justice Department to compile the list. At this stage, folks (including interest groups) start coming out of the woodwork to lobby the White House on behalf of their preferred potential nominees. Of course, as you know, President Trump had announced his list of potential nominees well in advance of the vacancy, and it was informed heavily by the input of a particular interest group — the Federalist Society.
Next, the White House and Justice Department start the vetting process. They conduct background checks and ask the potential nominees to complete lengthy questionnaires. The initial list is reduced to a shorter list. Once the president has settled on a nominee, the name is submitted to the Senate, which is usually about the time the rest of us find out about it.
It’s at this point that the "confirmation" part of the process begins. Generally, the Senate will refer the nomination to the Senate Judiciary Committee, which will schedule and conduct committee hearings on the nominee. These are the hearings that we generally see on C-SPAN. One major exception to this, of course, was former President Barack Obama’s nomination of Judge Merrick Garland for elevation to the Supreme Court; in that case, the Senate Majority Leader refused to refer the name to the Judiciary Committee, and so no further action was ever taken on that nominee.
In the normal course of events, the committee hearing provides members of the Judiciary Committee an opportunity to ask questions of the nominee. After this, the committee votes on the nominee and, if the vote is favorable, refers the nomination to the full Senate. Meanwhile, members of the White House staff, interest groups, and constituents continue to lobby senators to try to convince them to vote one way or the other on the nominee.
How does the United States Supreme Court nomination process differ from that of other countries?
There is essentially no other country that selects its judges the way we do. For example, Europe — which picks top judges with bipartisan approval to create ideologically balanced high courts — has a much different system than ours. A lot of that has to do with the fact that many European countries have a "Constitutional Court" structure, where their tribunal exists outside the normal judiciary and makes only these political-constitutional decisions. Our system, on the other hand, gives the power of constitutional review to judges in the normal judicial system, making the distinction between "political" decisions and "purely legal" decisions much harder to parse.
Of the systems that are most like ours, very few have evolved into the kind of contentious political spectacle that we have. However, I think that some other countries may be destined to land in a similar place given enough time. For example, Australia allows the government to appoint High Court judges "in consultation" with the state governments. In practice, that provision has been interpreted to require only that the federal government tells the states in advance what they are planning to do. Because they do not have a process by which any other branch needs to give consent, they avoid the political spectacle of the confirmation hearings. That doesn't mean the process isn't increasingly contentious, though. Politics has certainly infused many of the appointments to the High Court in recent years.
Why are SCOTUS positions nominated/appointed, unlike local and county judges, which are usually elected?
The short answer to this question is that this is what the Constitution requires. However, the reason the Constitution requires Supreme Court justices to be appointed, rather than elected, is to try to ensure that members of the highest court are free to exercise independent judgment. Our federal judicial selection system maximizes the goals of judicial independence by guaranteeing life tenure during good behavior and by forbidding Congress from reducing the salary of justices. Of course, Congress has other ways of attempting to exert influence over the Court. The most obvious is the fact that the Senate must approve justices on the front end. Of course, it is not unheard of for justices to shift ideologically once they reach the bench. Congress can also attempt various court-curbing measures like voting to remove the Court's jurisdiction in certain issue areas or failing to provide the Court with sufficient funds to maintain operations; while Congress is forbidden from reducing salaries, nothing in the Constitution requires Congress to increase salaries or provide as much money as the Court requests to allow it to maintain its building, staff, and so on.
Most states started with judicial selection systems that also featured political appointments and long terms of office. However, many state-appointing authorities saw the allocation of judgeships as an opportunity for political patronage. When governors appointed incompetent cronies as judges, it started to emphasize the problems with extreme judicial independence. During the populist era, states began shifting to systems of elections in order to keep the judges accountable to the people and independent from the other branches of government. Of course, this meant that the judges would be accountable to the people via elections, which brings along a different set of problems.
Have presidential SCOTUS picks always been so controversial?
The era of controversial Supreme Court nominations is fairly new.
It's certainly true that some individual nominees throughout history have been controversial. For example, former President Lyndon B. Johnson's attempt to elevate Abe Fortas to Chief Justice was thwarted on account of the fact that he and Fortas had an unusually and inappropriately close relationship. Fortas essentially acted as a cabinet member, attending White House meetings and spilling the Court's internal business to the president on a fairly regular basis.
However, we generally tend to see the beginning of the era of controversial nominations as the battle over the elevation of Judge Robert Bork to the Supreme Court in 1987. Justice Bork was a very highly qualified jurist and a prolific writer about topics of legal philosophy. It was this second part, though, that would be his downfall. He had written extensively about his controversial approach to interpreting the law and Constitution, leading to significant pushback against him during his confirmation hearings. This was in addition to his problematic role in the "Saturday Night Massacre" during the Nixon administration. In the end, Bork lost the floor vote 42-58. Now, it's certainly not that other nominees had never been rejected before — even one of George Washington’s nominees lost a confirmation vote. But the nature of the Bork fight seemed different. At this point, presidents (especially Republicans) had really figured out that appointing justices who were fellow ideologues could cement their legacies and be a huge source of power. This increased the stakes of each individual appointment, and we can certainly see that effect today. Of course, that is not to say that there haven't been justices since then who enjoyed broad bipartisan support in the Senate after Bork. Interestingly, Justice Ruth Bader Ginsburg was one of those. She was confirmed 96-3.
Is it rare for a SCOTUS seat to hang in the balance mere weeks before the general election?
There have certainly been nominations during an election year. It's only happened a couple of times this century, though. Once was the aforementioned failed attempt by Johnson to elevate Fortas to the Chiefship. When his elevation failed, this doomed the nomination of Homer Thornberry, the person who would have filled the Associate Justice seat that Fortas was expected to vacate. That drama happened in late June of the election year. The other times this century have been Merrick Garland (mid-March of an election year) and Amy Coney Barrett (late-September of an election year).
What is the average tenure of a Supreme Court justice: Do most serve lengthy terms or do they sometimes retire strategically?
The average tenure of Supreme Court justices has increased over time. This is for a couple of reasons. First, people live longer now. Second, presidents have figured out that they can maximize their legacy on the Court by choosing relatively young justices who will serve extremely long terms on the bench. Overall, the average term for a Supreme Court justice is about 16 years. However, for those appointed since 1950 (not including current incumbents), that average is more than 22 years.
There is certainly some mixed evidence about strategic retirements. It seems that this has been the case anecdotally in recent years. It seems clear that Ruth Bader Ginsburg opted not to retire near the end of Obama's second term because the Senate was controlled by a Republican majority that was intent on keeping Obama from filling federal court vacancies. In 2014, just before the Democrats lost their narrow Senate majority, Ginsburg told The New Yorker: "If I resign anytime this year, he could not successfully appoint anyone I would like to see in the Court." Of course, she, like many others, assumed that Hillary Clinton would win the 2016 election. If that had happened, the first woman president would have nominated RBG's successor. But that's not what happened, and Ginsburg was simply unable to hold out for the next opportunity to have a Democrat select her replacement.
What major cases are already on the SCOTUS docket that a Trump nominee confirmation could potentially impact?
The case mentioned most often in this regard is California v. Texas/Texas v. California. These cases are the challenge to the Patient Protection and Affordable Care Act. This case will be heard days after the election. Of course, it isn't clear exactly when the new justice would be sworn in, so it’s unknown whether she'd be on the Court for this case by that time. But there are a number of other key cases already on the Court's docket for November and beyond. Fulton v. Philadelphia would allow the Court to revisit the decision in Employment Division v. Smith, perhaps expanding protection for the free exercise of religion (here, specifically involving foster care contractors who refuse to place children in same-sex households). Jones v. Mississippi examines in which situations, if any, a state can impose a sentence of life without parole on a juvenile offender. DOJ v. House Committee on the Judiciary is a case about the secret documents underlying the Mueller report. There are heaps more, as well. So, there's essentially no end to the number of policy outcomes that the new justice would have an impact on.