When the nomination is submitted to the senate as a whole for consideration, it will be included in its executive calendar. Senate Majority Leader Mitch McConnell decides how to approach the voting process. Republicans have 53 seats in the current Senate, and Vice President Mike Pence would vote to break a tie, so 50 votes are needed to confirm the nominee if the entire Senate is present and votes. The Associated Press, “Trump Taps Conservative Judge Neil Gorsuch for Supreme Court,” The New York Times, January 31, 2017, available online at www.nytimes.com/aponline/2017/01/31/us/politics/ap-us-trump-supreme-court.html. For example, after the announcement of Judge Souter`s resignation, President Obama “from the beginning … had focused on Judge [Sonia] Sotomayor, a federal appeals judge in New York. She had a captivating life story, ivy league references and a track record on the bench. And when the opportunity [for appointment] presented itself, it became her appointment that she had to lose. Ibid. In the period prior to appointment, Presidents differ in that they publicly disclose the names of persons considered for the Court. Sometimes presidents try to keep the identity of their court nominees confidential. Such secrecy can allow a president to reflect on the qualifications of potential candidates and continue background investigations, away from public glamour, media coverage, and foreign political pressure. At other times, at least early in the pre-nomination phase, the White House could announce the names of the proposed Supreme Court nominees.
Such openness can serve a variety of purposes, including testing the public`s or Congressional response to potential candidates, appealing to political voters who would identify with identified candidates, or demonstrating the president`s determination to conduct a comprehensive search for the most qualified person available. Notes: For some vacancies since Gerald Ford`s presidency, this figure shows the number of days that elapsed between the public announcement of an incumbent judge`s vacancy and the president`s public announcement to identify his candidate for the vacant position. The number does not include three vacancies during this period that required several presidential appointments to fill the vacancy – in particular, the vacancies created by the departures of Justice Lewis Powell, Justice Sandra Day O`Connor and Justice Antonin Scalia (see the text of the report for more information). While President Bush announced his election of Roberts as a candidate for associate justice on July 19, 2005, he formally submitted his nomination of Roberts to the Senate 10 days later. There is no constitutional obligation for an outgoing judge to inform the President in advance of his or her intention to resign from the Tribunal. Nevertheless, a president sometimes learns in advance from a judge that he intends to announce publicly at a later date that he is leaving the Court. For example, Judge Harry A. Blackmun President Clinton in an informal conversation about his decision to retire more than four months before the judge`s decision was made public on April 6, 1994. In contrast, Justice O`Connor did not appear to have informed President G.W.
Bush in advance when she publicly announced her resignation by official letter on July 1, 2005. Although some presidents learn in advance of a judge`s intention to retire or resign, the data used in the calculations in Figure 2 are those in which it was publicly known that a judge would leave the court. In addition, the date on which a President publicly announced who he intended to appoint to replace the outgoing judge may differ from the date on which the nominee was formally submitted by the President to the Senate. For the purposes of this report, the date on which a Chair publicly announces who he or she intends to appoint, rather than the date on which the appointment is formally submitted to the Senate, is used as an end point to measure the number of days it takes a Chair to select a candidate. Figure 2 shows the number of days that elapsed between the date on which it was made public that a judge was leaving the Tribunal and the date on which the President publicly identified a candidate to succeed the outgoing judge.63 It should be noted that the figure shows only the vacancies at the Tribunal since 1975. for which only one application was required. Therefore, the vacancy created by the death of Justice Scalia is not included in Figure 2 (since more than one application was made to fill it). ** The President has announced his intention to nominate him, but has not formally submitted the nomination to the Senate.
The COVID-19 era could complicate matters, as much of the Senate`s work in reviewing Supreme Court appointments has been done in person in the past, including voting on the confirmation of a Supreme Court nominee. Currently, the Senate does not allow its members to vote remotely. President Clinton made perhaps the most use of private lawyers for this purpose in the spring of 1993 during his review of retired Justice Byron White`s Supreme Court nominees. It was reported that President Clinton deployed a team of 75 lawyers to the Washington, D.C. area who “analyzed pore[d][d][d]pleadings,” “mountains of opinions and speeches,” and “combed through the financial records,” the “last contenders” for the court`s appointment — from which the president ultimately chose U.S. Appeals Judge Ruth Bader Ginsburg. The team passed on its analysis to the White House lawyer, “who, along with other advisers, advised the president in the search for a judge.” According to the team`s ground rules, his work was conducted on a confidential basis, prohibiting any contact between his lawyers and White House staff. In this way, private lawyers were used, at least in part, because at this early stage of the Clinton presidency, there was no legal investigation team for the government at the Department of Justice. Daniel Klaidman, “Who are Clinton`s cousins and why this big secret?” Legal Times, vol. 16, June 21, 1993, pp. 1, 22-23.
The groundwork was to ensure that George W. Bush would be ready if a judge resigned. Early extensive research and interviews with potential candidates were important to ensure that Bush had cold councils that were free from external political pressure to select a particular candidate within hours of retirement.62 The second vacancy, which had several appointments to fill, was the vacancy created by the resignation of Justice Sandra Day O`Connor. Eighteen days have passed since Justice O`Connor announced that she would resign from the Court (subject to confirmation by her successor) upon President G.W. Bush`s appointment of John Roberts Jr. as his successor. Roberts` appointment was then withdrawn by the Speaker (so that Mr. Roberts could be reappointed to fill the vacancy of Chief Justice following the death of Justice Rehnquist); 28 days after Roberts` nomination withdrew, President Bush appointed Harriet Miers to succeed Justice O`Connor. Miers` nomination was later withdrawn by the president, and four days later he appointed Samuel Alito (whose appointment was confirmed by the Senate). President Gerald R. Ford, for example, said he believed his nominee, U.S. Appeals Judge John Paul Stevens, was “best qualified to serve as an associate justice of the Supreme Court.” U.S.
President (Ford), “Remarks Announcing Intention To Nominate John Paul Stevens To Be Associate Justice of the Supreme Court, November 28, 1975,” Public Papers of the Presidents of the United States, Gerald R. Ford, 1975, Book II (Washington: GPO, 1977), p. 1917. And President Obama said, for example, that his nominee, U.S. Appeals Judge Merrick Garland, was “widely recognized” as “one of America`s sharpest legal minds” and someone who was “particularly prepared” to serve as a Supreme Court justice. U.S.. President (Obama), “Remarks by the President Announcing Judge Merrick Garland as his Nominee for the Supreme Court,” March 16, 2016, Office of the Secretary of the White House. More recently, President Trump called his nominee for the Court, Neil Gorsuch, “an exceptional legal feat, a brilliant mind [and] extraordinary discipline… U.S. President (Trump), “Full Transcript and Video: Trump Selects Neil Gorsuch for supreme court,” New York Times, January 31, 2017. One of the “unwritten codes,” two judicial scholars wrote, “is that a judicial appointment is different from ordinary patronage. While political rules may allow a president to reward an old ally with a seat on the bench, tradition has also raised the expectation that the potential judge will have some reputation for professional competence, especially as the judiciary in question moves from the court of first instance to the court of appeal at the level of the Supreme Court.
Robert A. Carp and Ronald A. Stidham, Judicial Process in America, 3rd ed. (Washington: CQ Press, 1996), pp. 240-241. Note that the percentage of candidates sitting as U.S. appellate judges at the time of appointment is even higher during relatively recent presidencies. For example, from 1981 to the present, 13 (or 81%) of the 16 candidates have been appellate judges immediately prior to their appointment.49 In contrast, since 1981, no candidate to the Court has worked in a private capacity or held elective positions at the time of appointment.
Once the presidential nomination is sent to the Senate, Senate Judiciary Committee Chair Lindsey Graham would approve a screening hearing, followed by public hearings on the Judiciary Committee and a decision on a Senate-wide recommendation. .