Amidst the clamor and bustle of the rough and tumble 2016 presidential primaries and caucuses, President Barack Obama and the U.S. Senate are set to do battle over the vacancy left by the death of Supreme Court Justice Antonin Scalia.
Make no mistake, the Constitution empowers the president to nominate people to serve as justices on the nation’s highest and most powerful court. The very same document leaves no doubt that the U.S. Senate has the right to confirm, reject, or simply ignore the president’s choice.
As an interesting aside, the Constitution grants the Congress the right to decide how many justices serve on the Supreme Court. Originally, there were five associate justices and a chief justice for a total of six. The total reached a high of 10 in 1863. The number has been nine since 1869.
Contrary to popular belief, there are no official qualifications to serve on the high court— not even a minimum age. The youngest was Justice Joseph Story who was only 32 years old when he joined the court.
In fact, members of the high court do not even have to be lawyers. But the fact of the matter is that every person to serve on the Supreme Court has been a lawyer. Harvard Law School has had the most alumni serve on the court — 20.
So far, 112 justices have been nominated by a president and confirmed by the Senate. This includes 17 chief justices. Of the 112, only four women have served on the Supreme Court, with three of them serving now. Retired Justice Sandra Day O’Connor, appointed by President Ronald Reagan and confirmed by a 99-0 vote in the Senate, was the fourth.
From the theater so far this year, some might think that this is the first time battle lines have been drawn over a Supreme Court vacancy with such serious consternation. Yet, believe it or not, 17 presidents have submitted nominees that were not confirmed. (Indeed, the term ‘borked ’came from the Senate’s refusal to confirm President Reagan’s nominee Robert Bork.)
In total, 151 people have been nominated to serve on the Supreme Court. But many failed to make it to the court for a variety of reasons. In most cases, the Senate either rejected or failed to confirm the nominee. In others, the nominee was withdrawn or withdrew on their own.
While not the rule, the simple truth is that the president does not always get to have his choice automatically confirmed to the court.
In fact some presidents had their picks rejected multiple times by the Senate. President John Tyler had four picks that did not make it — one rejected, two withdrawn, and one with no action taken by the Senate. Presidents Millard Fillmore and Ulysses Grant each had three failed nominations. Many more had two that did not reach the high court.
The suggestion that the current battle over Justice Scalia’s replacement is about President Obama ignores pretty settled history. Fights over seats on the U.S. Supreme Court between the president, the Senate, and sometimes the Congress have occurred since the court began. Even President George Washington had two failed nominees — one withdrawn and one rejected.
Even the Congress has gotten into the fray on occasion. In addition to adjusting the number of justices up and down, Congress acted to prevent President Andrew Johnson from appointing anyone to the court. His nomination was voided by the Judicial Circuits Act of 1866 prior to his nominee’s consideration by the Senate.
After all, nominations to the U.S. Supreme Court are serious business. Nominees, if confirmed, serve for life, subject only to removal by impeachment. Only one has been impeached by the House of Representatives (but not convicted by the Senate) — Samuel Chase in 1804.
And, as life spans have increased, justices now serve decades after confirmation to the bench. More significantly, rightly or wrongly, they can make as much or as little law as they choose; and, absent a constitutional amendment, there is little that the president or Congress can do about it.
So, not surprisingly, presidents, senators, and congresses care a lot about the people appointed and confirmed to the Supreme Court.
But there is much more involved with this Supreme Court seat— Justice Scalia’s seat. It reflects the balance of power between two very different factions of the court— the liberal wing and the conservative wing. While purportedly not partisan, the court is in fact divided, and for now it is largely evenly divided.
In many ways, it is reflective of just where the country is — largely evenly divided. In fact, it also reflects just where the other two branches of government are — evenly divided between a Democrat president and a Republican Congress.
Interestingly, when it comes to the other two branches of government, the American people get to weigh in and decide which direction to go next. As history now has it, the president and the Senate have that same chance in this all-important election year — to hear from the American people about which direction to go next.
In November, just a few months from now, the American people will get the chance to voice their own opinions about which direction to go next. Why would the president and the Senate not want to hear what the American people have to say before such an important decision? After all, the Constitution does begin with “We, the People of the United States…”
