Decoding the campaign speeches and interviews of President elect Donald Trump, we can be sure that the American Supreme Court is going to experience important changes in the coming days, starting from the appointment of Judges. His top priority is to fill the present and future vacancies (if any) with conservative Judges. Which will not be welcomed by liberals. With this happening the Court will again incline to right, as it was for decades. Also experts predict that there may be additional vacancies during Trump’s Presidency as Justices Ruth Bader Ginsburg (born 1933), Anthony Kennedy (born 1936) and Stephen Breyer (born 1938) are or will be over 80 years old during Trump's first term of Presidency.
The Present Vacancy
On February 13, 2016, Associate Justice Antonin Scalia was found dead in Texas. He is the Second sitting Justice to die in the last 60 years.
Justice Antonin Scalia was an Associate Judge in the Supreme Court of the United States since his appointment in 1986 by then President Ronald Reagan. He was considered to be an arch-conservative in the bench. Over the past 30 years he has shown a conservative jurisprudence and ideology. He was a strong defender of the powers enjoyed by the executive branch, and also believes that the president should possess supreme control in many areas. Now that he being dead which creates a vacancy, it is the duty of the President to nominate a Justice to fill the vacancy.
Problems due to the Vacancy unfilled
Due to the current political situation the appointment is getting delayed. There are some immediate complications due to this delay, as the Supreme Court has shown an unwillingness to accept new cases. Experts have also cautioned that there may be a deadlock with 4-4 votes in rulings as the present number of judges is 8.
Since late February until the first week of April 2016, the Court has accepted only three cases and all three non- controversial to avoid a deadlock. Comparing the last five years average for the same period the Court took 8 cases.
Previous cases where Justice Scalia had voted, and not been publicly decided will become invalid. Of Course, in some cases Justice Scalia’s vote is not necessary – for example, if he was in the disagreement side or if the majority votes included more than five Justices (5-3) then the case will be publicly decided with the present 8 Judges.
But if Justice Scalia was a part of the 5 Justice majority in a case- for example if five judges including Justice Scalia stand on one side and four on the other side, without Justice Scalia the court is now divided 4-4. In these cases there is no majority for a decision and the lower court’s ruling will prevail. And this will continue until a new Judge is appointed to fill the 9th vacancy.
Procedure for the appointment of the SC Judges
The Supreme Court of United States in full has a total of nine Judges. When there is any vacancy the constitution lays down the procedure to fill it. The Constitution states that the President "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Judges of the Supreme Court."
President nominates according to Article 2 of the constitution and the Senate confirms, this shows the division of power between the President and Senate which was considered essential by the founders.
Usually a President nominate candidates who generally share their ideological views, but sometimes the so appointed Justice’s decision may not share the president’s views. A well-known example was Chief Justice Earl Warren; President Dwight D. Eisenhower expected him to be a conservative judge, but his rulings and stand were among the most liberal in the Court's judicial history.
The Constitution also states no qualifications to become a SC Justice, as a president may nominate anyone including politicians, outsiders, sitting Justices of federal courts to serve as a Supreme Court Justice.
After the President announces his nomination, Senate Judiciary Committee conducts hearings and votes on whether the nomination should go to the full Senate. At times the Committee has also interviewed and questioned the nominee.
Once the Committee sends the nomination, the full senate considers voting it. The Senate rarely rejects such a nomination, so far only 12 Supreme Court nominees were rejected, Robert Bork being the most recent (1987).
A president is also allowed to withdraw a nomination before the actual confirmation voting occurs, normally because when it is clear that the Senate will reject the nominee, most recently Harriet Miers in 2006.
Once the Senate selects a nomination, the president should prepare and sign a commission, to which the seal of the Department of Justice must be affixed.
After the appointment the Justice will serve in Supreme Court for rest of his life, as the Constitution says that the Justices "shall hold their offices during good behavior". Yet they can voluntarily resign or retire or can also be removed by an impeachment.
Before 1981, the nomination and selection process of justices did not take a longer time like it does today, they were approved in a month or two. But from Reagan administration to the present, the process has taken much longer. It is usually believed that this delay is because, the Senate realizes the role played by Justices has evolved much and particularly they play more political role than in the past.
President Obama’s Nomination
Soon after the death of Justice Scalia, President Obama nominated Merrick Garland (presently a Judge in the District of Columbia Court of Appeals) to serve as an Associate Justice of the Supreme Court. He was also considered twice for the Supreme Court, in 2009 and in 2010.
Justice Merrick Garland has more federal judicial experience than any Supreme Court nominee in history and is currently the oldest Supreme Court nominee since Lewis F. Powell, Jr. in 1971.
And if Merrick Garland becomes the Judge of Supreme Court, then there will be a majority of liberals which will change the balance of Court. This is against the interest of the Republican Party which enjoys a majority in Congress.
President Obama Vs Senate Conflict
Knowing the implications of appointing a liberal Judge, till date the Senate has not held a hearing or vote on the nomination made by President Obama; the refusal of Senate dominated by the Republicans to consider the nomination has created a controversy in the recent times.
This situation has led to a conflict between the White House and the Senate.
The Senate Republicans led by Majority Leader Mitch McConnell announced that they would not consider any nominee made by President Obama, and that a nomination should be left to the next President’s choice. President Obama responded that his intention was to "fulfill my constitutional duty to appoint a judge to our highest court," and that there was no "well established tradition" that a president could not fill a Supreme Court vacancy during the president's last year in office.
Again the republicans cited a 1992 speech by then senator and present Vice President Joe Biden that “if a Supreme Court seat becomes vacant, President Bush should wait until the elections getting over to appoint a replacement, or else appoint a moderate acceptable to the then-democratic dominated Senate. Republicans call this as “Biden Rule”. Joe Biden also responded that his stand then and now is that president and congress should “work together to overcome partisan differences” regarding judicial nominations.
Also the Senate’s Judiciary Committee chairman Senator Chuck Grassley, said within hours of Justices Scalia's death, President Obama's successor should select the next justice. This deadlock continues and now the next president being elected, it is on Trump’s to-do list on appointing the new Justice.
President Elect Trump’s Nomination
President elect Trump has certain promises to fulfil which were priority on his election portfolio. To name a few, protecting Gun Rights, curtail same sex marriage rights, and more importantly overturn the 1973 ruling allowing the Right to Abortion. So it is very important for Trump to appoint a conservative justice to get his promises done.
He released a first list of nominees May this year which was with many conservative Justices hinting that he will surely nominate a Conservative. Also all were white Justices, 6 sitting on federal circuit courts and 5 on state Supreme Courts.
Trump also got support of few conservative think tanks to decide these nominees.
Later this September he announced another list of Justices which was little diverse including women, African-Americans and a Utah Senator Mike Lee, who refused Trump’s nomination for president elections. He also asked Trump to quit the race for Presidency.
Trump’s Options
There are many cases challenging President Obama’s rules which are at present in lower courts under trail, and probably the lower courts might back these rules, which means they would become law unless the SC decides to take these cases. As discussed earlier these cases may also end up with 4-4 ruling and obviously the lower court ruling will prevail. So President elect Trump may plan to fill the vacancy for his favor immediately and with a conservative.
Unlike President Obama, President elect Trump’s Republican Party enjoys a majority in the Senate, so for him to appoint his choice of Justice is not an uphill task. But we cannot underestimate the Senate filibuster (a tool that allows the minority party to stretch a debate and block voting) unless and until a cloture (motion or process in parliamentary procedure aimed at bringing debate to a quick end) is moved. Even moving a Cloture may at times not be easy, if the majority party struggles in getting the required number of votes to move Cloture.
For instance, a recent case of President Lyndon Johnson's nomination of Justice Abe Fortas to succeed Earl Warren as Chief Justice was successfully filibustered in 1968.
President elect and his Republican party has to play careful to tackle these issues. Also President elect should win the support of the Party stalwarts like Mitt Romney, John McCain, Kelly Ayotte to name a few, who stand divided in supporting trump. To gain the support of the Congress Trump needs to pacify them.
(This article was originally Published in Digital Presense Magazine)
The Present Vacancy
On February 13, 2016, Associate Justice Antonin Scalia was found dead in Texas. He is the Second sitting Justice to die in the last 60 years.
Justice Antonin Scalia was an Associate Judge in the Supreme Court of the United States since his appointment in 1986 by then President Ronald Reagan. He was considered to be an arch-conservative in the bench. Over the past 30 years he has shown a conservative jurisprudence and ideology. He was a strong defender of the powers enjoyed by the executive branch, and also believes that the president should possess supreme control in many areas. Now that he being dead which creates a vacancy, it is the duty of the President to nominate a Justice to fill the vacancy.
Problems due to the Vacancy unfilled
Due to the current political situation the appointment is getting delayed. There are some immediate complications due to this delay, as the Supreme Court has shown an unwillingness to accept new cases. Experts have also cautioned that there may be a deadlock with 4-4 votes in rulings as the present number of judges is 8.
Since late February until the first week of April 2016, the Court has accepted only three cases and all three non- controversial to avoid a deadlock. Comparing the last five years average for the same period the Court took 8 cases.
Previous cases where Justice Scalia had voted, and not been publicly decided will become invalid. Of Course, in some cases Justice Scalia’s vote is not necessary – for example, if he was in the disagreement side or if the majority votes included more than five Justices (5-3) then the case will be publicly decided with the present 8 Judges.
But if Justice Scalia was a part of the 5 Justice majority in a case- for example if five judges including Justice Scalia stand on one side and four on the other side, without Justice Scalia the court is now divided 4-4. In these cases there is no majority for a decision and the lower court’s ruling will prevail. And this will continue until a new Judge is appointed to fill the 9th vacancy.
Procedure for the appointment of the SC Judges
The Supreme Court of United States in full has a total of nine Judges. When there is any vacancy the constitution lays down the procedure to fill it. The Constitution states that the President "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Judges of the Supreme Court."
President nominates according to Article 2 of the constitution and the Senate confirms, this shows the division of power between the President and Senate which was considered essential by the founders.
Usually a President nominate candidates who generally share their ideological views, but sometimes the so appointed Justice’s decision may not share the president’s views. A well-known example was Chief Justice Earl Warren; President Dwight D. Eisenhower expected him to be a conservative judge, but his rulings and stand were among the most liberal in the Court's judicial history.
The Constitution also states no qualifications to become a SC Justice, as a president may nominate anyone including politicians, outsiders, sitting Justices of federal courts to serve as a Supreme Court Justice.
After the President announces his nomination, Senate Judiciary Committee conducts hearings and votes on whether the nomination should go to the full Senate. At times the Committee has also interviewed and questioned the nominee.
Once the Committee sends the nomination, the full senate considers voting it. The Senate rarely rejects such a nomination, so far only 12 Supreme Court nominees were rejected, Robert Bork being the most recent (1987).
A president is also allowed to withdraw a nomination before the actual confirmation voting occurs, normally because when it is clear that the Senate will reject the nominee, most recently Harriet Miers in 2006.
Once the Senate selects a nomination, the president should prepare and sign a commission, to which the seal of the Department of Justice must be affixed.
After the appointment the Justice will serve in Supreme Court for rest of his life, as the Constitution says that the Justices "shall hold their offices during good behavior". Yet they can voluntarily resign or retire or can also be removed by an impeachment.
Before 1981, the nomination and selection process of justices did not take a longer time like it does today, they were approved in a month or two. But from Reagan administration to the present, the process has taken much longer. It is usually believed that this delay is because, the Senate realizes the role played by Justices has evolved much and particularly they play more political role than in the past.
President Obama’s Nomination
Soon after the death of Justice Scalia, President Obama nominated Merrick Garland (presently a Judge in the District of Columbia Court of Appeals) to serve as an Associate Justice of the Supreme Court. He was also considered twice for the Supreme Court, in 2009 and in 2010.
Justice Merrick Garland has more federal judicial experience than any Supreme Court nominee in history and is currently the oldest Supreme Court nominee since Lewis F. Powell, Jr. in 1971.
And if Merrick Garland becomes the Judge of Supreme Court, then there will be a majority of liberals which will change the balance of Court. This is against the interest of the Republican Party which enjoys a majority in Congress.
President Obama Vs Senate Conflict
Knowing the implications of appointing a liberal Judge, till date the Senate has not held a hearing or vote on the nomination made by President Obama; the refusal of Senate dominated by the Republicans to consider the nomination has created a controversy in the recent times.
This situation has led to a conflict between the White House and the Senate.
The Senate Republicans led by Majority Leader Mitch McConnell announced that they would not consider any nominee made by President Obama, and that a nomination should be left to the next President’s choice. President Obama responded that his intention was to "fulfill my constitutional duty to appoint a judge to our highest court," and that there was no "well established tradition" that a president could not fill a Supreme Court vacancy during the president's last year in office.
Again the republicans cited a 1992 speech by then senator and present Vice President Joe Biden that “if a Supreme Court seat becomes vacant, President Bush should wait until the elections getting over to appoint a replacement, or else appoint a moderate acceptable to the then-democratic dominated Senate. Republicans call this as “Biden Rule”. Joe Biden also responded that his stand then and now is that president and congress should “work together to overcome partisan differences” regarding judicial nominations.
Also the Senate’s Judiciary Committee chairman Senator Chuck Grassley, said within hours of Justices Scalia's death, President Obama's successor should select the next justice. This deadlock continues and now the next president being elected, it is on Trump’s to-do list on appointing the new Justice.
President Elect Trump’s Nomination
President elect Trump has certain promises to fulfil which were priority on his election portfolio. To name a few, protecting Gun Rights, curtail same sex marriage rights, and more importantly overturn the 1973 ruling allowing the Right to Abortion. So it is very important for Trump to appoint a conservative justice to get his promises done.
He released a first list of nominees May this year which was with many conservative Justices hinting that he will surely nominate a Conservative. Also all were white Justices, 6 sitting on federal circuit courts and 5 on state Supreme Courts.
Trump also got support of few conservative think tanks to decide these nominees.
Later this September he announced another list of Justices which was little diverse including women, African-Americans and a Utah Senator Mike Lee, who refused Trump’s nomination for president elections. He also asked Trump to quit the race for Presidency.
Trump’s Options
There are many cases challenging President Obama’s rules which are at present in lower courts under trail, and probably the lower courts might back these rules, which means they would become law unless the SC decides to take these cases. As discussed earlier these cases may also end up with 4-4 ruling and obviously the lower court ruling will prevail. So President elect Trump may plan to fill the vacancy for his favor immediately and with a conservative.
Unlike President Obama, President elect Trump’s Republican Party enjoys a majority in the Senate, so for him to appoint his choice of Justice is not an uphill task. But we cannot underestimate the Senate filibuster (a tool that allows the minority party to stretch a debate and block voting) unless and until a cloture (motion or process in parliamentary procedure aimed at bringing debate to a quick end) is moved. Even moving a Cloture may at times not be easy, if the majority party struggles in getting the required number of votes to move Cloture.
For instance, a recent case of President Lyndon Johnson's nomination of Justice Abe Fortas to succeed Earl Warren as Chief Justice was successfully filibustered in 1968.
President elect and his Republican party has to play careful to tackle these issues. Also President elect should win the support of the Party stalwarts like Mitt Romney, John McCain, Kelly Ayotte to name a few, who stand divided in supporting trump. To gain the support of the Congress Trump needs to pacify them.
(This article was originally Published in Digital Presense Magazine)