Supreme Court Nominations
Presidential Nomination, the
Judiciary Committee, Proper Scope of Questioning of Nominees, Senate Consideration, Cloture, and the Use of the Filibuster
Compiled by TheCapitol.Net
Authors: Denis Steven Rutkus, Elizabeth Rybicki, Betsy Palmer, Todd Tatelman, Richard S. Beth, Michael Koempel and Judy Schneider
The procedure for appointing a Supreme Court Justice is provided for by the Constitution in only a few words. The
"Appointments Clause" (Article II, Section 2, clause 2) states that the President
"shall nominate, and by and with the Advise and Consent of the Senate, shall appoint…Judges of the supreme Court."
The process of appointing Justices has undergone changes over two centuries, but its most basic feature--the sharing of power between the President and Senate--has remained unchanged. To receive lifetime appointment to the Court, a candidate must first be nominated by the President and then confirmed by the Senate. Although not mentioned in the Constitution, an important role is played midway in the process (after the President selects, but before the Senate considers) by the Senate Judiciary Committee. Since the end of the Civil War, almost every Supreme Court nomination received by the Senate has first been referred to and considered by the Judiciary Committee before being acted on by the Senate as a whole.
This book explores the appointment process--from Presidential announcement, Judiciary Committee investigation, confirmation hearings, vote, and report to the Senate, through Senate debate and vote on the nomination.
2009, 208 pages
ISBN: 1587331586 ISBN 13: 978-1-58733-158-9
1. "Supreme Court Appointment Process: Roles of the President, Judiciary Committee, and Senate," by Denis Steven Rutkus
. . . . . . . . . . . . . . . 1
- Background
- President's Selection of a Nominee
- The Role of Senate Advice
- Advice from Other Sources
- Criteria for Selecting a Nominee
- Background Investigations
- Speed with Which President Selects Nominees
- Recess Appointments to the Court
- Consideration by the Senate Judiciary Committee
- Historical Background
- Pre-Hearing Stage
- Hearings
- Reporting the Nomination
- Senate Debate and Confirmation Vote
- Bringing the Nomination to the Floor
- Criteria Used to Evaluate Nominees
- Filibusters and Motions to End Debate
- Voice Votes, Roll Calls, and Vote Margins
- Reconsideration of the Confirmation Vote
- Nominations That Failed to Be Confirmed
- Calling Upon the Judiciary Committee to Further Examine the Nomination
- After Senate Confirmation
- Conclusion
- Additional Sources
- Table 1. Current Members of the Supreme Court of the United States
- Table 2. Supreme Court Nominations Not Confirmed by the Senate
2. "Senate Consideration of Presidential Nominations: Committee and Floor Procedure," by Elizabeth Rybicki
. . . . . . 59
- Introduction
- Receipt and Referral
- Committee Procedures
- Written Rules
- Investigations
- Hearings
- Reporting
- Floor Procedures
- Executive Calendar
- Executive Session
- Taking Up A Nomination
- Holds
- Consideration and Disposition
- Recommital
- Reconsideration
- Cloture
- Nominations Returned to the President
- Recess Appointments
- Related CRS Reports
3. "Evolution of the Senate's Role in the Nomination and Confirmation Process: A Brief History," by Betsy Palmer
. . . . . . 75
-
Introduction
- Development of Senate Procedures
- Senatorial Courtesy
- Blue Slips
- "Holds"
- Filibuster
4. "Proper Scope of Questioning of Supreme Court Nominees: The Current
[2005] Debate," by Denis Steven Rutkus . . . . . . 91
- Historical Background
- Past Comments of John G. Roberts, Jr., on Proper Scope of Questioning
- His Advice in 1981 to Nominee Sandra Day O'Connor
- Questions He Declined to Answer as Court of Appeals Nominee in 2003
- Pre-Hearing Debate Over Proper Scope of Questioning for Roberts as Supreme Court Nominee
- Chairman Sets Stage for Committee Questioning
- Calls for Roberts to Answer Questions about Current Issues
- Criticism of Calls for Roberts to Answer Questions about Current Issues
- Conclusion
5. "Constitutionality of a Senate Filibuster of a Judicial Nomination," by Todd Tatelman . . . . . . 107
- Introduction
- Majority Rule
- Rulemaking Authority
- Entrenchment
- The Senate, the President, and Judicial Appointments
- The Text
- The Framers' Intent
- The Arguments of Supporters and Critics of Filibusters of Judicial Nominations
- Recess Appointments
- Appeal to the Courts
- Standing
- Political Question
- Conclusion
6."Cloture Attempts on Nominations," by Richard S. Beth and Betsy Palmer . . . . . . . 121
- Cloture, Filibusters, and How They Differ
- Frequency of Cloture Attempts on Nominations
- Historical Development of Cloture Attempts on Nominations
- Positions in Relation to Which Cloture Was Sought
- Table 1. Cloture Attempts and Action on Nominations
- Table 2. Frequency and Success of Cloture Attempts on Nominations, by Time Period, 1949-2008
- Table 3. Cloture Action on Judicial and Executive Nominations, by Time Period, 1967-2008
- Table 4. Nominations Subjected to Cloture Attempts, 1968-2008
7."Changing Senate Rules or Procedures: The 'Constitutional' or 'Nuclear' Option," by Betsy Palmer . . . . . . 133
- Introduction
- Nominations and the Filibuster
- Possible Courses of Action
- Dilatory Debate
- Opening Day Scenario One – Majority Rules Change
- Opening Day Scenario Two – Majority Cloture
- The Constitution and Cloture
- Considerations
- Potential Implications for the Senate
- Alternative Proposal
8. "'Entrenchment' of Senate Procedure and the 'Nuclear Option' for Change: Possible Proceedings and Their Implications," by Richard S. Beth . . . . . . . 147
- Introduction
- Filibusters and Limits on Consideration
- "Nuclear" and "Constitutional" Options
- Synopsis
- The "Entrenchment" of Senate Procedure
- Lack of Overall Consideration Limits
- Effects of the Continuing Body Doctrine
- The Continuity of the Senate
- Practical Implications of Continuity
- Contrast with the House of Representatives
- Entrenchment in Practice Only
- Requisites of a "Nuclear Option"
- Overcoming Entrenchment
- Consideration Limits Under Existing Procedures
- Motion to Table
- Point of Order
- Nested Point of Order
- Precedential Force of Parliamentary Rulings
- Rulings of the Chair
- Decisions by the Senate
- The "Constitutional Option"
- Rulemaking Power as Basis
- "Advice and Consent" Power as Basis
- Consideration Limits on Submitted Questions
- Possible Proceedings in a Contemporary "Nuclear Option"
- Point of Order Sustained by Chair
- Adverse Ruling in Accordance With Precedent
- Point of Order Submitted
- Point of Order by Opponents
- Nested Points of Order
- Implications of Using Extraordinary Action to Overcome Entrenchment
- Peremptory Departure from Established Procedure
- Extraordinary Action and the Standing of Precedent
- Attempts to Amend the Cloture Rule, 1953-1975
- Asserting the Non-Continuity of Rules
- Majority Cloture on Rules Changes
- Presumptively Non-Debatable Motion to Proceed
- Corresponding Considerations in the House
- Procedural Stability and Procedural Control
- Prospective Effects on Senate Practice
- Procedural Change Under Established Constraints
- For Further Reading
9."Consideration and Debate on the Senate Floor: Filibusters,"
"Cloture in Senate Floor Proceedings," "Steps to Invoke Cloture," and
"Senate Procedures under Cloture," Sections 8.210-8.232, from the
Congressional Deskbook, by Michael Koempel and Judy Schneider . . . . . . 183
10. "Congress
and the Executive: Appointments" and "Confirmation
Procedure," Sections 10.81-10.81 from the
Congressional Deskbook, by Michael Koempel and Judy Schneider . . . . . . 187
11. "Nominations to Federal Courts" and
"Gathering Information on a Judicial Nominee," Sections
10.121-10.122 from the
Congressional Deskbook, by Michael Koempel and Judy Schneider
. . . . . 191
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