who are the supreme court justices and how are they appointed?

Under the US Constitution, a president must be;• A natural-born US citizen• At least 35 years old• A US resident for at least 14 years

How are Supreme Court Justices appointed?

Read Article 2 Section 2.What powers does the president have?

Constitutional Analysis

“He [the President] shall have Power, by and with the Advice and Consent of the Senate… to… nominate… Judges

of the Supreme Court…”.

Enquiry Question: Who are the Supreme Court Justices and how are they appointed?

Learning Objectives

• To understand how Supreme Court Justices are nominated and confirmed

• To identify the members of the Supreme Court and investigate their political affiliations/ideological leanings

• To compile a profile of each Supreme Court nominee and summarise the appointment and confirmation process for each

What happens next?The President has announced his SC nominee...

Steps Description Explain the power granted and how it

serves as a check on another branch

President Nomination

White House Review

Paperwork Financial Disclosure

FBI Investigation

Senate Confirmation Hearings

Senate Vote

Appointment and Confirmation ProcessYOUR TASK:• Using the

information about the appointment and confirmation process, complete the table.

• Describe each step, and then explain how this power serves as a check on another branch of government (important for EXAM QUESTION).

Steps Description Explain the power granted and how it acts as a check on another branch

President Nomination President nominates candidates and submits the names to the Senate

Gives the President power to choose nominees for key government jobs and power to select members of another branch (the Judicial branch).

White House Review Members of the Executive Branch review the qualifications of the nominee

Ensures that other members of the executive branch approve of the nominee and help ensure he/she supports the President’s efforts.

Paperwork Financial Disclosure Nominee fills out forms (after all this is the government) and discloses information about their financial status.

FBI Investigation FBI investigates nominees for past actions and any possible encounters with the law.

Senate Confirmation Hearings Members of the Senate Judicial Committee interview and question nominees about a wide range of topics related to their qualifications and past cases.

Senate hearings ensure that representatives from the Legislative Branch (representing citizens) has an opportunity to verify the nominees’ qualifications.

Senate Vote The full senate confirms or rejects the appointment of the nominee by a majority vote.

Majority vote from Senate ensures the Legislative Branch is in favour of the executive Branch’s nominee or rejects it because they feel the person isn’t qualified.

Consideration by Senate Judiciary Committee

As soon as the president's nomination is received by the Senate, it is referred to the Senate Judiciary Committee.

The Judiciary Committee sends the nominee a questionnaire. The questionnaire requests the nominee's biographical, financial and employment information, and copies of the nominee's legal writings, opinions issued, testimony and speeches.

The Judiciary Committee holds a hearing on the nomination. The nominee makes an opening statement and then answers questions from the Committee members. The hearing can take several days and the questioning can become politically partisan and intense.

After the hearing is completed, Committee members are given one week to submit written follow-up questions. The nominee submits written responses.

Finally, the Committee votes on the nomination. The Committee can vote to send the nomination to the full Senate with a recommendation of either approval or rejection. The Committee can also vote to send the nomination to the full Senate without a recommendation.

Appointment & Confirmation Process


What qualifications are there for a Supreme Court Justice?

• Read the excerpt from Justice Ginsburg's statement to the Judiciary Committee.

• What does the statement reveal about the qualifications she believes the Senators are looking for in a Supreme Court Justice?


" . . . The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall,

at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in

Office." —Article III, Section I, U.S. Constitution



1. Why do you suppose Justice Ginsburg spends time near the beginning of her statement discussing this country's pursuit of “equal citizenship?”

2. How does Justice Ginsburg view the work of judges?

3. What information in her background does Justice Ginsburg assume the Senators will be interested in analysing?

4. What might these aspects of her background reveal about her fitness for being a Justice on the Supreme Court?

5. What kinds of questions does Justice Ginsburg say she will refuse to answer during the nomination hearing? Why?



Senate Judiciary Questionnaire; Justice GinsbergBiographical Information

• Education: List each college and law school you have attended, including dates of attendance, degrees received and dates degrees were granted.

• Employment record: List (by year) all governmental agencies, businesses or profesional corporations, companies, firms, or other enterprises, partnerships, institutions, and organizations, nonprofit or otherwise, with which you are or have been connected as an officer, director, partner, proprietor, or employee.

• Writings and Speeches: (a) List the titles, publishers, and dates of books, articles, reports, letters to the editor, editorial pieces, or other published material you have written or edited. Please supply one copy of all published material to the Committee.

• Citations: Please provide: (a) Citations for all opinions you have written (including concurrences and dissents).



Senate Judiciary Questionnaire; Justice GinsbergFinancial Data and Conflict of Interest

• List sources and amounts of all income received during the calendar year preceding your nomination and for the current calendar year, including any salaries, fees, dividends, interest, gifts, rents, royalties, patents, honoraria, and other items of $500 or more.

• Have you ever held a position or played a role in a political campaign? If so, please identify the particulars of the campaign, including the candidate, dates of the campaign, your title and responsibilities.

• The American Bar Association's commentary to its Code of Judicial Conduct states that it is inappropriate for a judge to hold membership in any organization that . . . discriminates on the basis of race, sex, or religion. Please list all business clubs, social clubs or fraternal organizations to which you belong or have belonged since graduating from law school . . . .

• Has anyone involved in the process of selecting you as a judicial nominee (including, but not limited to a member of the White House staff, the Justice Department, or the Senate or its staff) discussed with you any specific case, legal issue or question in a manner that could reasonably be interpreted as seeking any…assurances concerning your position on such case, issue, or question? If so, please explain fully.

• Please discuss your views on the role of the judiciary in our governmental system and the . . . criticism involving "judicial activism."

Candidate Question Activity


• In your groups you are the Senate Judiciary Committee. You will have to devise a set of 10 questions to ask the person nominated to be the next Supreme Court Justice.

• You will then ask the Justice (the teacher) your questions and the Senate (the class) will take a vote as to whether to confirm them. You need to make sure your questions will expose everything the Senate needs to know about the Justice.

Consideration by the Full Senate After receiving the recommendation

of the Judiciary Committee, the full Senate holds its own hearing and debates the nomination. The Chairman of the Judiciary Committee leads the Senate hearing. The senior Democratic and Republican members of the Judiciary Committee lead their party's questioning. The Senate hearing and debate typically take less than a week.

Finally the full Senate will vote on the nomination. A simple majority vote of the Senators present is required for the nomination to be confirmed.

Consideration by the full Senate


Explain how appointments are made to the US Supreme Court.

15 marks = 15 minutes

Pause For ThoughtAre nominees ever rejected by the

Senate?

Unsuccessful Nominations

28

Successful Nominations

130

President Nominee To Replace Nominated Vote ResultBarack Obama Elena Kagan Stevens 10.05.2010 63-37 Confirmed

Barack Obama Sonia Sotomayor Souter 01.06.2009 68-31 Confirmed

George W Bush Samuel Alito O’Connor 10.11.2005 58-42 Confirmed

George W Bush Harriet Miers O’Connor 07.10.2005 N/A Withdrawn

George W Bush John Roberts Jnr Rehnquist 06.09.2005 78-22 Confirmed

George W Bush John Roberts Jnr O’Connot 29.06.2005 N/A Withdrawn

Bill Clinton Stepehn Breyer Blackmun 17.05.1994 87-9 Confirmed

Bill Clinton Ruth Bader Ginsburg White 14.06.1993 96-3 Confirmed

George HW Bush Clarence Thomas Marshall 08.07.1991 52-48 Confirmed

George HW Bush David Souter Brennan 25.07.1990 90-9 Confirmed

Ronald Reagan Anthony Kennedy Powell 30.11.1987 97-0 Confirmed

President Nominee To Replace Nominated Vote ResultRonald Reagan Robert Bork Powell 01.07.1987 42-58 Rejected

Ronald Reagan Antonin Scalia Rehnquist 24.06.1986 98-0 Confirmed

Ronald Reagan William Rehnquist Burger 20.06.1986 65-33 Confirmed

Ronald Reagan Sandra Day O’Connor Stewart 19.08.1981 99-0 Confirmed

Gerald Ford John Paul Stevens Douglas 28.11.1975 98-0 Confirmed

Richard Nixon William Rehnquist Harlan 22.10.1971 68-26 Confirmed

Richard Nixon Lewis Powell Jnr Black 22.10.1971 89-1 Confirmed

Richard Nixon Harry Blackmun Fortas 15.04.1970 94-0 Confirmed

Richard Nixon G Harold Carswell Fortas 19.01.1970 45-51 Rejected

Richard Nixon Clement Haynsworth Fortas 21.08.1969 45-55 Rejected

Richard Nixon Warren Burger Warren 23.05.1969 74-3 Confirmed

Assessing the Appointment Process

Review your notes on the appointment and confirmation process for Supreme Court Justices.

Complete the table below.

What is wrong with the process? Why is the process so important?

“Critically analyse the appointment and confirmation process for nominations to the Supreme Court.”

45 marks = 45 minutes

Learning Objectives

• To understand how Supreme Court Justices are nominated and confirmed

• To identify the members of the Supreme Court and investigate their political affiliations/ideological leanings

• To compile a profile of each Supreme Court nominee and summarise the appointment and confirmation process for each


Who can be a Supreme Court Justice?

What constitutional requirements are there to be a Supreme Court Justice?


What extra-constitutional requirements do you think there are?

CourtsPause For Thought

• Jay, Rutledge, and Ellsworth Courts (1789–1800)• Marshall Court (1801–1835)• Taney Court (1836–1864)• Chase Court (1864–1873)• Waite Court (1874–1888)• Fuller Court (1888–1910)• White Court (1910–1921)• Taft Court (1921–1930)• Hughes Court (1930–1941)• Stone Court (1941–1946)• Vinson Court (1946–1953)• Warren Court (1953–1969)• Burger Court (1969–1986)• Rehnquist Court (1986–2005)• Roberts Court (2005–present) Membership of Supreme Court Timeline

http://www.supremecourt.gov/about/members.aspx

Supreme Court “Courts” are

named after the Chief Supreme

Court Justice that presided over

them.




Meet the Roberts CourtPause For Thought

• John G. Roberts, Jr., Chief Justice of the United States

• Antonin Scalia, Associate Justice

• Anthony M. Kennedy, Associate Justice

• Clarence Thomas, Associate Justice

• Ruth Bader Ginsburg, Associate Justice

• Stephen G. Breyer, Associate Justice

• Samuel Anthony Alito, Jr., Associate Justice

• Sonia Sotomayor, Associate Justice

• Elena Kagan, Associate Justice

John G. Roberts, Jr.Chief Justice of the United States

• Born in Buffalo, New York, 1955 (57 years old)

• Married (2 children)• Harvard College, Harvard Law School• Associate Counsel to President

Ronald Reagan, White House Counsel’s Office 1982–1986

• Practiced law at private firm 1986–1989 and 1993–2003

• United States Court of Appeals for the District of Columbia Circuit 2003.

• Chief Justice of the United States Supreme Court since 29th September 2005.

Appointed by George W Bush (Republican)

Antonin ScaliaAssociate Justice

• Born Trenton, New Jersey 1936. (76 years old)

• Married (9 children)• Georgetown University, Harvard Law

School• Private practice 1961-67• Professor of Law at the University of

Virginia 1967–1971• Professor of Law at the University of

Chicago 1977–1982• Visiting Professor of Law at Georgetown

University and Stanford University• Judge of the United States Court of

Appeals for the District of Columbia Circuit 1982-86

• Associate Justice of the Supreme Court since 26th September 1986.

Appointed by Ronald Reagan (Republican)Italian/Sicilian American

Anthony M. KennedyAssociate Justice

• Born Sacramento, California, 1936. • Married (3 children)• Stanford University, London School of

Economics, Harvard Law School• Private practice in San Francisco,

California 1961–1963, Sacramento, California 1963–1975

• Professor of Constitutional Law at the McGeorge School of Law, University of the Pacific 1965-1988

• United States Court of Appeals for the Ninth Circuit 1975-88.

• Associate Justice of the Supreme Court, since 18th February, 1988.

Appointed by Ronald Reagan (Republican)

Clarence ThomasAssociate Justice

• Born Georgia, 1948 • Married x2 (1 child)• Holy Cross College, Yale Law School• Assistant Attorney General of

Missouri 1974–1977• Assistant Secretary for Civil Rights,

U.S. Department of Education 1981–1982

• Chairman of the U.S. Equal Employment Opportunity Commission 1982–1990

• Judge of the United States Court of Appeals for the District of Columbia Circuit in 1990-1.

• Associate Justice of the Supreme Court, since 23rd October 1991.

Appointed by George H W Bush (Republican)African American

Ruth Bader GinsburgAssociate Justice

• Born Brooklyn, New York, 1933. • Married (2 children)• Cornell University, Harvard Law

School, Columbia Law School• Professor of Law at Rutgers University

School of Law 1963–1972• Professor of Law at Columbia Law

School 1972–1980• Judge of the United States Court of

Appeals for the District of Columbia Circuit 1980-1993

• Associate Justice of the Supreme Court since 10th August 1993.

Appointed by Bill Clinton (Democrat)

Stephen G. BreyerAssociate Justice

• Born San Francisco, California, 1938• Married (3 children)• Stanford University, Oxford

University, Harvard Law School• Assistant Special Prosecutor of the

Watergate Special Prosecution Force 1973

• Assistant Professor, Professor of Law, and Lecturer at Harvard Law School 1967–1994 a

• Judge of the United States Court of Appeals for the First Circuit 1980-1990 (Chief Judge, 1990–1994)

• Associate Justice of the Supreme Court since 3rd August 1994. Appointed by Bill Clinton (Democrat)

Samuel Anthony Alito, Jr.Associate Justice

• Born Trenton, New Jersey, 1950• Married (2 children)• Assistant U.S. Attorney, District of New

Jersey, 1977–1981• Assistant to the Solicitor General, U.S.

Department of Justice, 1981–1985• Deputy Assistant Attorney General, U.S.

Department of Justice, 1985–1987• U.S. Attorney, District of New Jersey,

1987–1990• United States Court of Appeals for the

Third Circuit 1990-2006. • Associate Justice of the Supreme Court

since 31st January 2006.

Appointed by George W Bush (Republican)Italian American

Sonia SotomayorAssociate Justice

• Born Bronx, New York, 1954• Princeton University, Yale Law School,

Editor of Yale Law Journal• Assistant District Attorney of New

York 1979–1984• U.S. District Court, Southern District

of New York 1992–1998• Judge on the United States Court of

Appeals for the Second Circuit 1998–2009.

• Associate Justice of the Supreme Court since 8th August 2009.

Appointed by Barack Obama (Democrat)Hispanic

Elena KaganAssociate Justice

• Born New York, New York, 1960. • Princeton University, Oxford

University, Harvard Law School, editor of Harvard Law Review.

• Assistant professor University of Chicago Law School 1991-1995.

• Associate Counsel to President Clinton 1995-99

• Profess of Law Harvard University 2001

• Dean of Harvard Law School 2003.• Solicitor General of the United States

2009-2010• Associate Justice of the Supreme

Court since August 2010. Appointed by Barack Obama (Democrat)Jewish

Ideological Leanings/Political AffiliationsJustice Appointed by Attitude

John Roberts George W Bush (R) Conservative

Elena Kagan Barack Obama (D) Liberal

Samuel Alito George W Bush (R) Conservative

Antonin Scalia Ronald Reagan (R) Conservative

Anthony Kennedy Ronald Reagan (R) Centrist

Sonia Sotomayor Barack Obama (D) Liberal

Clarence Thomas George W Bush (R) Conservative

Ruth Bader Ginsberg Bill Clinton (D) Liberal

Stephen Breyer Bill Clinton (D) Liberal

Judicial Interpretations

Originalism is a principle of interpretation that tries to discover the original meaning or intent of the constitution.

Strict constructionism requires a judge to apply the text only as it is spoken. Once the court has a clear meaning of the text, no further

investigation is required. Judges should avoid drawing inferences from a statute or constitution and focus only on the text itself.

Loose constructionism requires a judge to make inferences from a statute or constitution and to ‘read between the line’, rather than

follow the letter of the law.

• Judges believe they have a duty to interpret the Constitution so that their decision will change the way society does things.

• Judges see this as interpreting the Constitution positively in order to put things right that have been wrong.

• Judges can be either “strict constructionist” or “loose constructionist”.• Strict constructionists can be described as ‘judicially passive’ – the

opposite of judicial activism.• 'Judicial activism’ is a term which lacks precise definition, and is often used

as a term of abuse for decisions with which the speaker or writer disagrees.

• Arguably, the most objective definition is that judicial activism is the overriding by the Supreme Court of a state or congressional law, or the reversal of one of the court’s own precedents; thus defined, judicial activism can be practised by both conservative and liberal justices, and cases such as Citizens United and Heller can arguably be seen as part a new era of conservative activism.

Judicial Activism

ARGUMENTS FOR JUDICIAL ACTIVISM ARGUMENTS AGAINST JUDICIAL ACTIVISM

• the principles of the constitution are clear, and it is the role of the court to protect them from dilution or erosion by other branches of government

• the court’s own decisions are not immune from error and must be reversed if necessary

• legislators are often risk-averse, and slow to act for fear of offending one group or another;

• consequently, important social change can only be achieved by the court taking the lead and striking down archaic legislation

• state laws in particular are likely to promote values which have long since ceased to be acceptable

• the constitution is vague in many places and its provisions subject to interpretation; consequently, no one can claim a definitive knowledge of its meaning, and, as an unelected body, the court should defer to the judgment of the other branches

• as the court lacks the legitimacy of the elected branches, it should strike down legislation only if it is in flagrant breach of the constitution

• judges are not expert in social policy and, if they attempt to substitute their judgment for legislators’, it is unlikely to produce successful policy

• if justices are seen to use judicial review to advance their own policy preferences, they risk eroding the standing and authority of the court

• if the court reverses its own decisions, especially within a relatively short space of time, again there is a danger that its authority is undermined

• federalism is a cornerstone of the US constitution, and, in striking down state laws, the court is denying states the legitimate right to protect regional ways of life

Supreme Court Nominees• Compile a Case Study for your assigned Supreme Court Nominee.• You should include the following;

- brief biography- photo- nomination details (e.g. president, date etc)- senate judiciary committee details (e.g. questions, media coverage, controversies?)- senate confirmation details (e.g. vote, success/failure, why?, controversies?)

• Complete in Word - then copy and paste onto the Wiki Page on the VLE.

Name Nominee Name Nominee

Lauren Clarence Thomas Sandeep Ruth Bader Ginsberg

Melody Harriet Miers Simranjit Sandra Day O’Connor

Melody Robert Bork Lauren Antonin Scalia

Melody Elena Kagan Sandeep Stephen Breyer

Simranjit Sonia Sotomayor Adil Samuel Alito

Lauren John Roberts (both) Adil Anthony Kennedy

Thinking Points1. Why were each of the following Supreme Court

nominees rejected by the Senate;a) Robert Borkb) G Harold Carswellc) Clement Haynsworth

2. Each of the following Supreme Court nominees were confirmed with over 90% of the votes in the Senate. For each nominee explain why.a) Ruth Bader Ginsburgb) Anthony Kennedyc) Antonin Scaliad) Sandra Day O’Connore) John Paul Stevensf) Harry Blackmun

3. Why were each of the following Supreme Court nominations withdrawn by President George W Bush;a) Harriet Miersb) John Roberts Jnr

4. Clarence Thomas was confirmed by a very narrow margin of 52-48. Can you explain why?

Harry Blackmun• Blackmun was nominated to the Supreme

Court by President Richard M. Nixon on April 14, 1970, and was confirmed by the Senate on May 12, 1970, by a 94–0 vote.

• Blackmun was Nixon's fourth choice. • His confirmation followed contentious battles

over two previous, failed nominations forwarded by Nixon in 1969–1970, those of Clement Haynsworth and G. Harrold Carswell. Nixon's original choice, Lewis F. Powell, Jr., turned him down but later joined the Court in 1972.

• Friends with fellow Minnesotan Warren Burgher (SCCJ) and was Blackmun’s best man – recommended him to be a justice.

• Began as a republican justice – started to dissent in the late 1970s and later considered a “liberal and enlightened justice”.

• Less conservative than Nixon’s previous nominees who were Southern, supported segregation and often opposed women’s rights.

John Paul Stevens

HomeworkSupreme Court NomineeCase Studies – Wiki page on VLEReading and Note TakingChapter 7, p288-294The appointment and confirmation process, p294-299p302-305Consolidating your understandingTo what extent is the Roberts’ Court balanced? (equivalent of 15 mark Question)

Race Gender Age

Extra CreditThinking Points Analysis of appointments and process