The procedure of selecting and noominating a Supreme Court Judge
May 11th 2010 14:50
We are talking about how a bill becomes a law but with current events of the retirement of Justice Stevens it seemed prudent to talk about how a Supreme Court Justices are appointed to the Court. Yesterday President Obama announced that he was nominating Elena Kagan.
The background of Elena Kagan, “she was confirmed as the 45th Solicitor General of the United States in March 2009.
Prior to her confirmation, Elena Kagan was the Charles Hamilton Houston Professor of Law and the 11th Dean of Harvard Law School. During her nearly six-year tenure as Dean, Harvard Law School expanded and enhanced its faculty, modernized its curriculum, developed new campus facilities, promoted public service, and improved the student experience.
A leading scholar of administrative law, Kagan came to Harvard Law School as a visiting professor in 1999 and became Professor of Law in 2001. While on the faculty, Kagan taught administrative law, constitutional law, civil procedure, and seminars on issues involving the separation of powers. She was appointed Dean of the Law School in 2003.
From 1995 to 1999, Kagan served in the White House, first as Associate Counsel to the President (1995-96) and then as Deputy Assistant to the President for Domestic Policy and Deputy Director of the Domestic Policy Council (1997-99). In those positions she played a key role in the executive branch’s formulation, advocacy, and implementation of law and policy in areas ranging from education to crime to public health.
Kagan launched her academic career at the University of Chicago Law School, where she became an assistant professor in 1991 and a tenured professor of law in 1995. In 1993, Kagan received the graduating students’ award for teaching excellence.
Kagan clerked for Judge Abner Mikva of the U.S. Court of Appeals for the D.C. Circuit from 1986 to 1987. The next year, she clerked for Justice Thurgood Marshall of the United States Supreme Court. She worked as an associate in the Washington, D.C. law firm of Williams & Connolly from 1989 to 1991.
Kagan received her bachelor’s degree, summa cum laude, from Princeton in 1981. She attended Worcester College, Oxford, as Princeton’s Daniel M. Sachs Graduating Fellow, and received an M. Phil. in 1983. She then attended Harvard Law School, where she was supervising editor of the Harvard Law Review, and graduated magna cum laude in 1986.” 1
The only time w sitting President has the ability to influence the Supreme Court is when a vacancy occurs. When I previously wrote about the position of Supreme Court Justice I said that opening occurs, since a Supreme Court Justice is a lifetime appointment, so that a vacancy occurs either at retirement, impeachment, resignation, or death (sorry about being so blunt).
When looking for a new Supreme Court nominee the sitting President usually selects a person who is a current sitting federal judge, a judge who is currently serving on a state supreme court or is a prominent law professor.
Now that the announcement has been made the Senate must approve the nomination. As we have discussed before the Senate votes on anything the bill or nomination must go through committee. The Senate Judiciary Committee normally holds hearings on the nomination. Once they vote and they agree then the nomination is sent to the Senate floor, which then votes on the nominee.
This procedure of voting for a Supreme Court Justice can be routine, but on occasion there have been some nasty arguments. There were heated discussions when Presidents nominated Robert Bork “The war of words over Bork heated up last week as Delaware Democrat Joseph Biden, chairman of the Senate Judiciary Committee, delivered his most forthright criticism yet of Bork. A presidential candidate who has already announced his intention to vote against Bork's confirmation, Biden told the American Bar Association convention in San Francisco that Bork might try to revoke "dozens" of the milestone Supreme Court decisions that the judge has called "lawless," "unprincipled" and "utterly specious." Said Biden: "Had he been Justice Bork during the past 30 years and had his view prevailed, America would be a fundamentally different place than it is today."
Later that day former Chief Justice Warren Burger condemned Biden's plan to; grill Bork during the confirmation hearings. "No judge up for nomination under any circumstances should ever be asked to commit himself on how he's going to vote on a case that's coming before the court at some future date," declared Burger.
Bork's strongest defense, appropriately, came from the White House. In his television address, Reagan cited Bork's confirmation as his first goal for the remainder of his presidency. Bork's nomination, said the President, "is being opposed by some because he practices judicial restraint. That means he won't put their opinions ahead of the law; he won't put his own opinions ahead of the law. And that's the way it should be”” (Lamar, Jr., Beckwith, Constable-Washington, 1987).
Another controversial nomination was Clarence Thomas. According to Judgopedia; “On July 1, 1991 President George H. W. Bush nominated Clarence Thomas to replace Thurgood Marshall, who had recently announced his retirement. Marshall had been the only African-American justice on the court.
President Bush said that Thomas was the "best qualified [nominee] at this time." The American Bar Association's (ABA) rating for Judge Thomas was split between "qualified" and "not qualified."
During confirmation hearings, Thomas repeatedly asserted that he had not formulated a position on the Roe decision. Some of the public statements of Thomas's opponents foreshadowed the confirmation fight that would occur. One such statement came from activist Florynce Kennedy at a July 1991 conference of the National Organization for Women in New York City. Making reference to the failure of Robert Bork's nomination, she said of Thomas, "We're going to 'bork' him." Clarence Thomas's formal confirmation hearings began on September 10, 1991.
Anita Hill allegations
Toward the end of the confirmation hearings, an FBI interview with Anita Hill, an attorney who had worked for Thomas at the Department of Education and the EEOC, was leaked. Hill was called to testify at Thomas' confirmation hearings, where she alleged that Thomas had subjected her to inappropriate harassing comments of a sexual nature. Hill's testimony included lurid details, and she was aggressively questioned by some Senators.
Thomas denied the allegations, stating: "This is not an opportunity to talk about difficult matters privately or in a closed environment. This is a circus. It's a national disgrace. And from my standpoint, as a black American, it is a high-tech lynching for uppity blacks who in any way deign to think for themselves, to do for themselves, to have different ideas, and it is a message that unless you kowtow to an old order, this is what will happen to you. You will be lynched, destroyed, caricatured by a committee of the U.S. Senate rather than hung from a tree."
Hill was the only person to testify at the Senate hearings against Thomas. Several witnesses testified on Thomas's behalf. Diane Holt testified that in the years after Hill left for another job, Hill called at least a dozen times. Nancy Altman, who worked with Hill and Thomas at the Department of Education, testified that, "It is not credible that Clarence Thomas could have engaged in the kinds of behavior that Anita Hill alleges, without any of the women who he worked closest with - dozens of us, we could spend days having women come up, his secretaries, his chief of staff, his other assistants, his colleagues - without any of us having sensed, seen or heard something."
After the hearings Senator Arlen Specter said that, "the testimony of Professor Hill in the morning was flat out perjury", and that "she specifically changed it in the afternoon when confronted with the possibility of being contradicted."
After extensive debate, on September 27, the Judiciary Committee split 7-7 and sent the nomination to the full Senate without a recommendation. Thomas was confirmed by the Senate with a 52-48 vote on October 15, 1991, the narrowest margin for approval in more than a century. The final floor vote was mostly along party lines: 41 Republicans and 11 Democrats voted to confirm while 46 Democrats and two Republicans voted to reject the nomination. On October 23, 1991, Thomas took his seat as the 106th Associate Justice of the Supreme Court.”
The next step for Ms. Kagan is to meet with members of Congress privately. High ranking members get to have a meeting with the Supreme Court nominee to learn more about her and some of her opinions on current issues and or cases. Then as written her nomination will go to committee where they will discuss her qualifications and review her background. If the nomination passes committee the nomination will go to the full senate for debate and a vote.
References:
Really Long Link
2. Lamar, Jr. J. V., Beckwidth, D., Constable-Washington, A., (1987) Defining the Real Robert Bork, Time
3. Really Long Link
4. Supreme Court Justice Reference Guide – Georgetown Law Library Really Long Link
5.Supreme Court Web Page: http://www.supremecourt.gov/
The background of Elena Kagan, “she was confirmed as the 45th Solicitor General of the United States in March 2009.
Prior to her confirmation, Elena Kagan was the Charles Hamilton Houston Professor of Law and the 11th Dean of Harvard Law School. During her nearly six-year tenure as Dean, Harvard Law School expanded and enhanced its faculty, modernized its curriculum, developed new campus facilities, promoted public service, and improved the student experience.
From 1995 to 1999, Kagan served in the White House, first as Associate Counsel to the President (1995-96) and then as Deputy Assistant to the President for Domestic Policy and Deputy Director of the Domestic Policy Council (1997-99). In those positions she played a key role in the executive branch’s formulation, advocacy, and implementation of law and policy in areas ranging from education to crime to public health.
Kagan launched her academic career at the University of Chicago Law School, where she became an assistant professor in 1991 and a tenured professor of law in 1995. In 1993, Kagan received the graduating students’ award for teaching excellence.
Kagan clerked for Judge Abner Mikva of the U.S. Court of Appeals for the D.C. Circuit from 1986 to 1987. The next year, she clerked for Justice Thurgood Marshall of the United States Supreme Court. She worked as an associate in the Washington, D.C. law firm of Williams & Connolly from 1989 to 1991.
The only time w sitting President has the ability to influence the Supreme Court is when a vacancy occurs. When I previously wrote about the position of Supreme Court Justice I said that opening occurs, since a Supreme Court Justice is a lifetime appointment, so that a vacancy occurs either at retirement, impeachment, resignation, or death (sorry about being so blunt).
When looking for a new Supreme Court nominee the sitting President usually selects a person who is a current sitting federal judge, a judge who is currently serving on a state supreme court or is a prominent law professor.
Now that the announcement has been made the Senate must approve the nomination. As we have discussed before the Senate votes on anything the bill or nomination must go through committee. The Senate Judiciary Committee normally holds hearings on the nomination. Once they vote and they agree then the nomination is sent to the Senate floor, which then votes on the nominee.
This procedure of voting for a Supreme Court Justice can be routine, but on occasion there have been some nasty arguments. There were heated discussions when Presidents nominated Robert Bork “The war of words over Bork heated up last week as Delaware Democrat Joseph Biden, chairman of the Senate Judiciary Committee, delivered his most forthright criticism yet of Bork. A presidential candidate who has already announced his intention to vote against Bork's confirmation, Biden told the American Bar Association convention in San Francisco that Bork might try to revoke "dozens" of the milestone Supreme Court decisions that the judge has called "lawless," "unprincipled" and "utterly specious." Said Biden: "Had he been Justice Bork during the past 30 years and had his view prevailed, America would be a fundamentally different place than it is today."
Later that day former Chief Justice Warren Burger condemned Biden's plan to; grill Bork during the confirmation hearings. "No judge up for nomination under any circumstances should ever be asked to commit himself on how he's going to vote on a case that's coming before the court at some future date," declared Burger.
Bork's strongest defense, appropriately, came from the White House. In his television address, Reagan cited Bork's confirmation as his first goal for the remainder of his presidency. Bork's nomination, said the President, "is being opposed by some because he practices judicial restraint. That means he won't put their opinions ahead of the law; he won't put his own opinions ahead of the law. And that's the way it should be”” (Lamar, Jr., Beckwith, Constable-Washington, 1987).
Another controversial nomination was Clarence Thomas. According to Judgopedia; “On July 1, 1991 President George H. W. Bush nominated Clarence Thomas to replace Thurgood Marshall, who had recently announced his retirement. Marshall had been the only African-American justice on the court.
President Bush said that Thomas was the "best qualified [nominee] at this time." The American Bar Association's (ABA) rating for Judge Thomas was split between "qualified" and "not qualified."
During confirmation hearings, Thomas repeatedly asserted that he had not formulated a position on the Roe decision. Some of the public statements of Thomas's opponents foreshadowed the confirmation fight that would occur. One such statement came from activist Florynce Kennedy at a July 1991 conference of the National Organization for Women in New York City. Making reference to the failure of Robert Bork's nomination, she said of Thomas, "We're going to 'bork' him." Clarence Thomas's formal confirmation hearings began on September 10, 1991.
Anita Hill allegations
Toward the end of the confirmation hearings, an FBI interview with Anita Hill, an attorney who had worked for Thomas at the Department of Education and the EEOC, was leaked. Hill was called to testify at Thomas' confirmation hearings, where she alleged that Thomas had subjected her to inappropriate harassing comments of a sexual nature. Hill's testimony included lurid details, and she was aggressively questioned by some Senators.
Thomas denied the allegations, stating: "This is not an opportunity to talk about difficult matters privately or in a closed environment. This is a circus. It's a national disgrace. And from my standpoint, as a black American, it is a high-tech lynching for uppity blacks who in any way deign to think for themselves, to do for themselves, to have different ideas, and it is a message that unless you kowtow to an old order, this is what will happen to you. You will be lynched, destroyed, caricatured by a committee of the U.S. Senate rather than hung from a tree."
Hill was the only person to testify at the Senate hearings against Thomas. Several witnesses testified on Thomas's behalf. Diane Holt testified that in the years after Hill left for another job, Hill called at least a dozen times. Nancy Altman, who worked with Hill and Thomas at the Department of Education, testified that, "It is not credible that Clarence Thomas could have engaged in the kinds of behavior that Anita Hill alleges, without any of the women who he worked closest with - dozens of us, we could spend days having women come up, his secretaries, his chief of staff, his other assistants, his colleagues - without any of us having sensed, seen or heard something."
After the hearings Senator Arlen Specter said that, "the testimony of Professor Hill in the morning was flat out perjury", and that "she specifically changed it in the afternoon when confronted with the possibility of being contradicted."
After extensive debate, on September 27, the Judiciary Committee split 7-7 and sent the nomination to the full Senate without a recommendation. Thomas was confirmed by the Senate with a 52-48 vote on October 15, 1991, the narrowest margin for approval in more than a century. The final floor vote was mostly along party lines: 41 Republicans and 11 Democrats voted to confirm while 46 Democrats and two Republicans voted to reject the nomination. On October 23, 1991, Thomas took his seat as the 106th Associate Justice of the Supreme Court.”
The next step for Ms. Kagan is to meet with members of Congress privately. High ranking members get to have a meeting with the Supreme Court nominee to learn more about her and some of her opinions on current issues and or cases. Then as written her nomination will go to committee where they will discuss her qualifications and review her background. If the nomination passes committee the nomination will go to the full senate for debate and a vote.
References:
Really Long Link
2. Lamar, Jr. J. V., Beckwidth, D., Constable-Washington, A., (1987) Defining the Real Robert Bork, Time
3. Really Long Link
4. Supreme Court Justice Reference Guide – Georgetown Law Library Really Long Link
5.Supreme Court Web Page: http://www.supremecourt.gov/
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