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Frequently Asked Questions
Have a question you'd like answered in this FAQ? Have suggestions regarding how this site could be more useful for you or others? What is the procedure for filling a vacancy on the Court?Article 2 Section 2 of the Constitution specifies only that the president ". . . by and with the advice and consent of the Senate, shall appoint . . . judges of the Supreme Court . . . ." In practice, when a Supreme Court vacancy occurs, the president selects a nominee, whose name is forwarded to the Senate for consideration, first by the Senate Judiciary Committee and then by the whole Senate. That consideration ultimately involves a vote by the Senate to confirm or deny the appointment. If more senators vote for than against confirmation, the nominee is confirmed as a lifetime appointee to the high Court. If the vote for confirmation fails to gain a simple majority of the votes cast for and against the nominee, then the nominee is rejected and the president submits another nomination.For greater detail about the constitutional and the extra-constitutional setting of the appointment process, see Watson and Stookey, Shaping America: The Politics of Supreme Court Appointments , pp, 7-13. What happens now, with two vacancies on the Court and with the opening of the Supreme Court session on October 3?It seems quite likely that the Court will open its 2005-06 term on the first Monday in October with only 8 justices rather than 9. A quorum for the Court's decision-making is 6. About the only scenario for that not happening is if Justice O'Connor, whose retirement statement appeared to have a contingency that would make it effective upon the confirmation of her replacement, would stay on. The fact that her replacement has not yet to be named, given the shift of the Roberts nomination to be Chief Justice, means that she will have to consider whether to keep her seat when the Court convenes. By shifting the nomination of Roberts from associate justice to Chief Justice, the president hopes to have a sitting Chief Justice by October 3. That will likely happen, although it remains to be seen whether the opposition to the Roberts nomination will choose to escalate their opposition now that the Chief Justice position is at stake or whether they will be more accepting now that Roberts is no longer replacing O'Connor but rather the more conservative Rehnquist. Surely, the O'Connor vacancy now becomes a major focus for everyone. Does the procedure for appointing the Chief Justice differ from that of a regular associate justice?No. A vacancy in the Chief Justice position is filled like that of any of the associate justice positions. So, if the vacancy on the Court is for Chief Justice, then the president will nominate someone to be Chief Justice. Many are surprised to find that a nominee need not come from the ranks of the current sitting associate justices, as it did when President Reagan named sitting justice William Rehnquist to be Chief Justice in 1986. However, that has occurred only three times in our history, so the norm is that the president appoints someone not currently on the Court to fill a Chief Justice vacancy. A president will almost never automatically appoint the most senior justice on the Court to be Chief Justice. That has happened only once (Harlan Fiske Stone by FDR). The Chief Justice position becomes vacant like that of any associate justice position, through the departure (retirement, resignation, death, or impeachment) of the sitting Chief Justice. The Chief Justice does not serve at the pleasure of the president. Indeed, he may well serve at some considerable displeasure of a president. The Constitution spells broadly that the president appoints and that the Senate must advise and consent to the nomination. This means there will be a hearing before the Senate Judiciary Committee just as with other justice nominees. Their recommendation passes on to the whole Senate where a majority vote of those present is required to confirm the nominee. What is the significance of a Rehnquist vacancy?Most obviously, this represents the departure of a Chief Justice, primus inter pares on the Court. The Chief Justice oversees the administrative work of the Court and, as captain of the ship so to speak, the Chief Justice does much to set the tone for the operation of the Court and the interactions among the justices. As a symbol, the Chief Justice is an icon. It is his Court (we have yet to have a her)—the Rehnquist Court, the Burger Court, the Warren Court. In appointing a Chief Justice, a president is signaling his intentions for the Court. The fact of a vacancy being that of a Chief Justice will increase the potential for controversy in the nomination. Will the nomination of a new justice be political in nature?Of course it will. Nominations are always political. It may be that the president and the Senate will choose the subtler politics of consensus in the selection and confirmation of a new nominee, which was President Clinton's approach with his two nominees (Ginsburg and Breyer). On the other hand, the president or those opposed to the president's nomination preferences may choose to pursue the politics of controversy, but make no mistake it's all politics. President Bush will attempt to do what virtually every other president has attempted to do—make the best choice available given the set of political needs and constraints that confront him.You might wish to check out the page dealing with the nomination setting in which this nomination is occuring. That will do much to determine the nature of the politics that will characterize this nomination. Will this nomination be a controversial one?The easy answer is that it depends on who the nominee is, but the real answer is somewhat more complicated than that. The nominee is only one factor. Perhaps just as important is the nomination setting and whether that setting is one in which controversy is easily aroused. For example, when Abe Fortas was initially nominated to the Court by Lyndon Johnson in 1965, Johnson was at the zenith of his political power. The Democratic party had a 36 vote majority in the Senate; Johnson got his way in 93% of the partisan votes taken in the Senate; his public support level was at 69%, and Fortas was replacing Justice Goldberg, one liberal for another. This was not a setting likely to engender any significant controversy or opposition, and Fortas sailed through the confirmation. Only three years later, Johnson attempted to move Fortas into the Chief Justice position to replace Earl Warren. However, by then, Johnson's public support level had dropped to 43% and his support in the Senate had dropped to 69% even with a 26 Democratic vote majority. Johnson's opponents saw an opportunity to place the nomination of the next Chief Justice in the hands of a Republican president by organizing a majority coalition of conservative, if not exactly Republican, senators. The Fortas nomination was stalled, ultimately resulting in the resignation of Fortas and the appointment of Warren Burger by President Richard Nixon. The current nomination setting for President Bush is fairly ripe for controversy. (See the nomination setting page .) Bush's popularity has recently dipped below 50%, with the war in Iraq and the immediate aftermath of Hurricane katrina. The Senate is more firmly Republican, with 55 of them compared to 44 Democrats and 1 Independent. However, on matters of Supreme Court appointments, there are some Republicans who would be willing to join Democrats if the president's nominee is considered too conservative. Moreover, the new Chair of the Judiciary Committee will be Arlen Specter, one of the more centrist Republicans in the Senate. How many Supreme Court justices have been nominated since the beginning of the Court? How many of these were confirmed?This is a fairly straight forward question with a slightly tricky answer. One complicating factor is nominations that are withdrawn. Take the most recent example. Was the Roberts nomination to replace O'Connor withdrawn and subsequently resubmitted as the Rehnquist vacancy nomination? George Washington withdrew his initial nomination of William Paterson only to submit it again later to have him confirmed. Does that count as a nomination? I think it does in that instance. So, here is one set of numbers, with the understanding that other people may count differently. Number of nominations: 150 (includes Roberts once) Failed nominations may not be rejections by the Senate. Seven of these 37 were actually confirmed by the Senate but the person confirmed declined the appointment. Another died between confirmation and taking the oath. Quite a few were withdrawn or the Senate simply failed to act on the nominations. In a couple of instances, a vacancy was declared not to exist because of changes in the number of seats on the Court. Only 12 of these failed nominations came about as a result of a formal vote of rejection in the Senate. Roberts will be the 17th Chief Justice, although one of these (Rutledge) served on an interim appointment from George Washington before having his nomination rejected by the Senate, so Roberts, if confirmed, will be the 16th confirmed to that position. |
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