According to the U.S. Constitution (Article II, Section 2), the president “…shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States…” Over the years, this “advice and consent” has meant that the nominee must be examined by and pass muster with the Senate Judiciary Committee, and must then be confirmed by a simple majority vote of the whole Senate. (More detail about this process is available here.) Note: The House of Representatives does NOT play a role in the confirmation of presidential nominees to the Supreme Court.
It sounds fairly simple and straightforward, right? So why is President Obama’s nominee to fill the late Antonin Scalia’s seat on the Supreme Court, Merrick Garland, back in the news? Politics!
Scalia died in February, and the average time the confirmation process takes is only 2.5 months. Senate Republicans have refused to hold confirmation hearings on him, arguing that the seat should be filled by the winner of the presidential election in November. However, the elevation of Donald Trump as the presumptive GOP candidate has caused a re-think among conservatives: Leon H. Wolf at the conservative RedState blog writes that the fact he is still a nominee is “a gift that should not be squandered”:
Republicans must know that there is absolutely no chance that we will win the White House in 2016 now. They must also know that we are likely to lose the Senate as well. So the choices, essentially, are to confirm Garland and have another bite at the apple in a decade, or watch as President Clinton nominates someone who is radically more leftist and 10-15 years younger, and we are in no position to stop it.
Whatever you think of this argument, the wider point he is making is that presidents have a huge impact on the Supreme Court, and thus on law far into the future, by virtue of their power to nominate justices. This is a point explored in the Project: Consequences of Judicial Appointments, which is available in U.S. Government and Project: Supreme Court in American History II from WorldView Software. In these projects, students examine the appointments made by President Richard Nixon, including Chief Justice Warren E. Burger, and the impact those appointments had on the decisions made by the court in the following years.
After completing these projects, an interesting thought experiment to try in class would be to look at the people a President Clinton or a President Trump might nominate, the current cases wending their way through the system, and try to extrapolate how each nominee would vote.
Preview WorldView Software’s programs for free at http://www.worldviewsoftware.com/preview/