By Trevor Knup
The position of a U.S. Supreme Court Justice is one of the most powerful in the United States. After a justice is confirmed, they are able to serve for the rest of their life. Most often a justice retires at a very old age, if they retire at all. The only way to remove a Justice is if they are impeached and removed from their position after committing a crime or grave misconduct. Similar to the process of impeaching the President of the United States, a justice would have to be impeached by the House of Representatives, and then removed from office by a majority vote in the U.S. Senate. The only time a justice has ever been impeached was in 1805 when Associate Justice Samuel Chase was impeached by the House of Representatives for letting his “partisan leanings” affect his rulings. However, the Senate acquitted him, and he remained in office until his death in 1811. The greatest recurring controversy surrounding the Supreme Court of the United States (SCOTUS) is in regards to the process by which justices are nominated, and then confirmed to be a member of the court.
Following a SCOTUS seat vacancy, which most often occurs after the retirement or death of a justice, the incumbent President can nominate a justice to fill the empty seat. This process begins with the President consulting with leading Senators from his political party to decide on his nominee. The President then announces his nominee and sends it to the Senate Judiciary Committee, which is the U.S. Senate subcommittee responsible for confirming federal judicial appointees. The Committee then holds a hearing to determine the nominee should be voted on. This hearing generally occurs about a month following the nomination, which gives the committee time to thoroughly vet the nominee and look into their past. Witnesses are brought forward to testify for and to testify against the nominee’s experience, qualifications, character, and philosophy. Following the hearing the Judiciary Committee votes on the nomination and sends a recommendation to the full Senate- either the nominee should be confirmed, rejected, or no recommendation). The full Senate will then debate on the nomination in an unlimited debate known as filibustering. The debate can only come to an end by a simple majority (51) votes. Until recently, a ⅗ (60) majority vote was required, but was changed to the simple majority in 2017, which is now known as the “Nuclear Option”. Once the debate ends, every present Senator casts their vote, and only a simple majority is required to confirm the nominee. In the event of a tie, the Vice President of the United States, currently Mike Pence, casts the deciding vote.
The most common controversy surrounding the confirmation process of Supreme Court nominees is about the confirmation of nominees during presidential election years. The Thurmond Rule states that the U.S. Senate should not confirm a president’s nominees to federal courts during an election year. The Thurmond Rule is not a law, but rather a precedent which is only cited when a vacancy in the Supreme Court occurs in the final year of a president's term. In 2016, when Associate Supreme Court Justice Anthony Scalia passed away, the Senate, which held a Republican majority, blocked President Obama’s nominee. Leading Republicans, such as Senate Majority Leader Mitch McConnell cited the Thurmond Rule, and said that a nominee shouldn’t be confirmed during a presidential election year, because it “should be up to the people to decide who they want to pick the next Justice”. However in September 2020, when Associate Justice Ruth Bader Ginsburg (who pioneered women’s equality and was the leading voice of the Roe V. Wade decision) died, leading Senate Republicans, including Senate Majority Leader Mitch McConnell, reversed their opinions from 2016. Just hours after Ginsburg’s death, Mitch McConnell announced that President Trump’s nominee will receive a full vote before the end of his term. Some of the leading Senate Republicans cite poor treatment of incumbent Associate Justice Brett Kavanaugh during his confirmation hearing as the reason for their opinion reversal. However, others, including President Trump, and Mitch McConnell say that it’s simply because now there is a Republican Majority during the term of a Republican President, whereas in 2016 there was a Democrat President.
There are three possible outcomes to the current controversy. First, the Senate could expedite the confirmation process as soon as President Trump announces his nominee, so that they can try to confirm the nominee before Election Day. The second possibility, and the least likely, is that the Senate will wait on even starting the process until after the end of President Trump’s current terms, allowing whoever wins the election to pick the next justice. The third, and most likely, possibility is that the Senate will begin the confirmation process as soon as a nominee is announced, but they would be confirmed after Election Day and before the end of the current term.
Donald Trump's nomination is Judge Amy Coney Barret, a federal appellate judge and Notre Dame professor.The most prominent topic of controversy with the next justice is over Roe V. Wade, which gives women the ability to get abortions. Judge Amy Coney Barrett is adamantly against abortion and has said she would hope to overturn Roe V. Wade.
Great article Knup!