Can the President Appoint a Supreme Court Justice

Second, the lifetime mandate allows the judges themselves to strategically plan their retirement so that an ideologically like-minded president can appoint his successor. Recently, this has become the norm. Such ideological control of a seat on the Supreme Court was never contemplated by the founders. In addition, some judges have remained in court after a sharp decline in their mental or physical abilities, hoping to last until the inauguration of a president who shares their legal and political preferences. Such ideological control of a seat on the Supreme Court was never contemplated by the founders when they drafted the Constitution. In its history, the court had only five seats and up to ten. There are currently nine seats on the U.S. Supreme Court – one Chief Justice and eight Associate Justices. With the retirement of Justice Stephen Breyer, a seat is vacant for an associate judge.

Instead of a constitutional amendment, some are now proposing to “go to court,” perhaps to avenge the Senate Republicans` refusal to grant Merrick Garland a hearing. But even if this were politically possible (it requires control of the presidency and both houses of Congress), this is a short-term partisan legislative move, not a bipartisan constitutional solution. He does not cure anything. Instead, it would exacerbate the politicization of the court. Moreover, the story of court packaging is not sparkling. The most famous attempt, that of Franklin Roosevelt in 1937, was a dismal failure. Although FDR won 98.4% of the Electoral College vote in 1936, his plan was clearly opposed – in Congress by Democrats and Republicans, and even by judges who had sided with FDR in New Deal cases. Given that the tribunal decides so many follow-up matters, who is appointed to the tribunal and how often appointments are made is of great importance not only to constitutional experts, but also to the public. Given the stakes, it is not surprising that reactions to the Court have become much more political and partisan. For a time, Democrats and Republicans sometimes repeated Franklin Roosevelt`s rather lukewarm criticism that judges should “act as judges, not legislators.” But more recently, parties and presidential candidates have explicitly promised to appoint judges who would uphold or overturn certain decisions, such as Roe v. Wadeor Citizens United. Media coverage has also become much more politicized.

In the 1950s, for example, New York Times articles used the terms “liberal judges” or “conservative judges” only eight times. From 2000 to 2010, the newspaper used these terms 160 times. The last ten presidents have appointed an average of three Supreme Court judges each. Judges will be appointed for life, and with nine seats on the Court, the next President will have enormous power over the future of the Court in the coming decades. But the proposed amendment is neither republican nor democratic. It is rooted in the most fundamental American values. Federalist Society founder Steven Calabresi, as well as liberal icon Sanford Levinson, have spoken out in favor of similar constitutional changes. Both parties understand the importance of a regular opportunity to connect the court to the country. Both parties would benefit from a return to appointment standards from the reduction in staff from 1975 onwards.

While each party has from time to time reaped short-term benefits through strategic retirements, neither party can support a system in which judges themselves can make political decisions about when to retire in order to shape the future of the Court. While both sides may now see increasing benefits in appointing younger judges – with a bias against appointing judges over the age of 60 – neither party has a principled reason to support a system that creates this bias. Like associate judges, the Chief Justice is appointed by the President and confirmed by the Senate. It is not necessary for the Chief Justice to act as an associate judge, but 5 of the 17 Chief Justices were Associate Judges of the Court before becoming Chief Justices. In general, Congress determines the jurisdiction of federal courts. However, in some cases – such as in the example of a dispute between two or more U.S. states – the Constitution grants the Supreme Court original jurisdiction, an authority that cannot be revoked by Congress. The Court of Appeal usually has the final say in the case, unless it refers the case back to the court of first instance for a new hearing. In some cases, the decision may be reviewed in the bench, that is, by a larger group of judges of the Circuit Court of Appeals. Procedural changes related to the Senate have also contributed to increased controversy and partisanship. The Seventeenth Amendment, ratified in 1913 to provide that senators must be elected by the people (instead of state legislators), and the Senate, which changed its rules in 1929 to make all confirmation hearings public, made senators more concerned about the impact of confirmation hearings on their constituents.

And then, in 2013, the Senate led by Democrat Harry Reid eliminated obstruction for all federal judges except Supreme Court nominees. In 2017, Republican Mitch McConnell retaliated by removing obstruction for Supreme Court justices. Filibusters (or the threat of filibusters), which required 60 votes to overcome them, may have been a force against overly partisan nominations, as to reach age 60, a candidate usually had to win a few votes from senators from the other party. Regular appointments only work if they come with term limits – which also have independent benefits. Without term limits, regular appointments, coupled with increasing longevity, would lead to a huge tribunal. In addition, a limit of 18 years is suitable for a dish of 9 members. Finally, two judges will complete their 18-year terms during each four-year term, just as two new judges will be appointed. At the Constitutional Convention, the authors stressed the importance of the independence of the judiciary and did not want judges to be dominated by other branches of government. (Hence the Constitution`s “conduct of business clause” and Congress` prohibition on reducing the salaries of sitting judges.) But little attention has been paid to the system of appointing judges.

In fact, the proposed system that was adopted – appointment by a president subject to the advice and approval of the Senate – was included in the Committee`s proposal on unfinished parts, a summary proposal for all presidential appointments. The Committee did not explain its proposal and the Convention as a whole adopted it without debate.