05 May 2009
Nominees for Highest U.S. Court Undergo Careful Scrutiny
Replacement for Souter probably not last Supreme Court pick for Obama
Washington — When Supreme Court Justice David Souter retires in June from the highest court in the United States, President Obama will nominate his replacement, which is “among my most serious responsibilities as president,” Obama said May 1.
During his presidency, Obama will nominate hundreds of federal judges who serve on courts across the nation. But the judicial nominations that will draw the most attention are the lifetime appointments to the Supreme Court of the United States.
On May 1, Justice David Souter announced his intention to retire when the court finishes its term in June. Souter was appointed to the court by President George H.W. Bush in 1990.
“Throughout his two decades on the Supreme Court, Justice Souter has shown what it means to be a fair-minded and independent judge,” Obama said May 1. “He came to the bench with no particular ideology. He never sought to promote a political agenda.”
The Supreme Court’s nine justices make up the court of final appeal from the lower federal and state courts. The court is also the venue for settling legal disputes between states or those that involve another nation.
The Supreme Court of the United States receives more than 7,000 petitions for review each year, but generally agrees to hear 100 or fewer. The majority of cases have gone through an appeals process, in which they have been decided at a lower level by a U.S. court of appeals. The 12 regional courts of appeals and a federal court for specialized cases include 179 judges. All of those judges are presidential appointments.
Traditionally, Supreme Court cases follow a procedure in which opinions are written by one justice and endorsed by others. The complete texts of these opinions are published widely, so all may review almost immediately the legal reasoning on which important judgments are based. From the beginning, dissenting justices have been heard and their dissents published alongside the majority opinion (or opinions). This allows readers to see the legal reasoning that kept the justices holding the minority view from agreeing with the majority decision.
As outlined in Article II of the U.S. Constitution, a Supreme Court justice, like Cabinet officials and other political appointees, is nominated by the president and confirmed by the Senate. Prior to a vote by the Senate, the Senate Judiciary Committee will hold hearings and question the nominee. Following the hearings, the committee can refer the nominee to the full Senate for a vote.
SUPREME COURT APPOINTMENTS
Political and legal experts believe it is quite likely Obama will make one or more additional nominations for the Supreme Court. There are five justices older than Souter’s 69 years, some of whom may consider retirement in the next few years. The longest-serving judge, 88-year-old John Paul Stevens, has been on the bench since 1975.
The current court is roughly divided between four judges generally considered liberal and four who are generally considered conservative. Souter, despite being appointed by a Republican president, tends to be among the liberal judges, along with Stevens, Stephen Breyer and Ruth Bader Ginsberg. The conservative judges are Chief Justice John Roberts, Samuel Alito, Antonin Scalia and Clarence Thomas. Justice Anthony Kennedy frequently serves as a swing vote in the middle, according to the Brookings Institution’s research director, Benjamin Wittes. (See “Next President Could Shape U.S. Judiciary More than Predecessors.”)
Because Souter is liberal and Obama, a Democrat, will appoint his successor, it is unlikely there will be a major ideological shift on the court with this appointment. However, the close balance of political views in the current court means any future Obama nominations could shift the court’s ideological balance and potentially affect the court’s decisions. Because of this, any Supreme Court nominee likely will be scrutinized closely, both by the public and the U.S. Congress.
On a few occasions, constitutional controversies with moral dimensions (slavery, abortion, segregation) have polarized American opinion about the selection of Supreme Court justices.
Although the Constitution imposes specific age, residency and citizenship qualifications for the president of the United States and members of Congress, it sets no similar qualifications for Supreme Court justices. There is also no constitutional requirement that the court have nine justices.
No prior experience as a judge, expertise as a constitutionalist, or any legal training is mandated. Nevertheless, virtually every appointment to the nation’s highest court has come from the pool of those with training in the law and professional experience as lawyers and judges.
During the hearing process, senators often will question nominees on their judicial record and views on constitutional issues. This process can be contentious, especially in cases in which committee members are trying to gauge a nominee’s views on a controversial issue. Historically, about 20 percent of Supreme Court nominees fail to receive Senate confirmation.
Obama’s administration was considering potential Supreme Court candidates even before a vacancy arose. “I will seek somebody with a sharp and independent mind and a record of excellence and integrity,” the president said.
“I will seek someone who understands that justice isn’t about some abstract legal theory or footnote in a case book, it is also about how our laws affect the daily realities of people’s lives,” he said. “I will seek somebody who is dedicated to the rule of law, who honors our constitutional traditions, who respects the integrity of the judicial process and the appropriate limits of the judicial role.”
The president said he will consult with members of both political parties during the nomination process. He hopes a justice will be confirmed by the time the court begins its next session in October.
More information about the U.S. Supreme Court is available on the court’s Web site.
