A Primer on Supreme Court Confirmation Hearings

Confirmation hearings begin on Monday, March 20 for President Donald Trump’s nominee to fill Justice Scalia’s vacancy on the U.S. Supreme Court: Judge Neil Gorsuch. More information about Judge Gorsuch is available here.

I thought it might be useful to provide a brief primer on Supreme Court confirmation hearings.

Background

The procedure for appointing a justice to the U.S. Supreme Court is provided in Article II, Section 2, Clause 2 of the U.S. Constitution, which states that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the supreme court.” The President must first select and nominate an individual before he or she is confirmed by the U.S. Senate.

The Senate has confirmed a total of 124 Supreme Court nominations out of a total of 161 received. Of those who were not confirmed, they were either outright rejected via roll call vote, were withdrawn, postponed, tabled or never voted upon due to significant committee or Senate opposition to the nominee or president.

The Process

(1) Pre-hearing investigations

Although not mentioned in the Constitution, the Senate Judiciary Committee plays a key role in Supreme Court confirmation hearings. The Judiciary Committee takes on the primary responsibility of investigating the background and qualifications of each Supreme Court nominee.

During this stage, the nominee responds to a detailed questionnaire, providing professional, biographical, and financial information to the committee. Note: The FBI also investigates the nominee and provides the committee with confidential reports related to its investigations.

The nominee also visits with members of the judiciary committee and other senators during what are called “courtesy calls.”

(2) Public hearings

During this stage, a nominee testifies in hearings before the committee.

Judiciary Committee members and their staffs closely study the public record and investigative information about the nominee before the hearings begin. The nominee also intensively prepares. The President’s staff assists the nominee by providing legal background materials and by conducting mock hearings. These sessions have come to be known as “murder boards” because of how grueling the sessions are on the nominee.

A confirmation hearing begins with a statement by the chair of the Judiciary Committee, and is followed by opening statements by other committee members. A panel of “presenters” then introduce the nominee to the committee, and then the nominee has an opportunity to offer an opening statement.

The chair of the committee will begin the questioning, followed by the ranking minority member and then the rest of the committee in descending order of seniority, alternating between members of the majority and minority party. There is a uniform time limit for each senator during each round of questioning. When the first round of questioning is complete, the committee begins a second round, which may be followed by more, if the committee chair permits additional questioning.

Questions tends to focus on legal qualifications, past judicial opinions or other public actions, private backgrounds. Questions may also be aimed at identifying the nominee’s views on social and political issues, the Constitution, and judicial philosophy. In some cases, a nominee may decline to answer a question for fear of appearing to comment on an issue that may later come before the U.S. Supreme Court.

(3) Public Witnesses

After the nominee’s hearing is complete, the committee will also hear testimony from public witnesses. These witnesses typically include the chair of the American Bar Association’s Standing Committee on the Federal Judiciary (who explains the ABA’s rating of a nominee), professional colleagues of the nominee and/or representatives of groups who support or oppose the nominee.

(4) Closed-Door Committee Session

Starting in 1992, the Judiciary Committee started conducting a closed-door session with the nominee in order to help address questions regarding that person’s background brought to the committee through confidential investigations. Then-Senator Joe Biden explained the procedure saying that they would be conducted “in all cases, even when there are no major investigative issues to be resolved so that the holding of such hearing cannot be taken to demonstrate that the committee has received adverse confidential information about the nomination.”

(5) Committee decision on what recommendation to make to the full senate

Usually within a week upon completion of the hearings, the Judiciary Committee meets in open session to determine what recommendation to report to the full Senate.

The committee may: (1) report favorably on the nomination; (2) report on it negatively; or (3) make no recommendation. In all three cases, the nomination will go forward.

After the Judiciary Committee has reported a nomination, it is placed on the “Executive Calendar” and assigned a calendar number. Business of the “Executive Calendar” is considered in executive session, which is open to the public.

(6) Bringing the Nomination to the Floor

Consideration of a nomination is scheduled by the majority leader (Senator Mitch McConnell), who typically consults with the minority leader (Senator Chuck Schumer) and all interested Senators. The chart below explains the contemporary practice for bringing a Supreme Court nomination to the floor.

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Once the Senate debate begins, it is typical for those Senators who choose to take the floor to state his or her reasons for voting in favor or against a nominee’s confirmation.

Filibusters and Motions to End Debate

Senate rules place no limits on how long floor consideration of a nomination may last. This allows for the possibility of a filibuster by the nominee’s opponents. Supporters may seek to limit debate by invoking cloture, which limits further consideration of the matter to 30 hours. Cloture requires 60 votes. Cloture ensures that a nominee will receive a vote and be decided on by a voting majority.

(7) The Vote

When floor debate on a nomination concludes, the presiding officer puts the following question to a vote: “Will the Senate advise and consent to the nomination of [nominee’s name] of [state of residence] to be an Associate Justice [or Chief Justice] on the Supreme Court?”

A roll-call vote to confirm requires a simple majority of Senators present and voting. Since 1967, every Senate vote on whether to confirm a Supreme Court nomination has been by roll call. Prior to 1967, fewer than half were by roll call, the rest were done by voice vote.

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Sources:

(1) https://fas.org/sgp/crs/misc/R44234.pdf

(2) https://fas.org/sgp/crs/misc/R44236.pdf

The Weekend Before Election Day: A Good Time to Make Sure You’re Fully Informed Before You Vote

The 2016 election is on Tuesday, November 8, 2016. More than 30 million citizens have already voted, taking advantage of early voting opportunities in many states. If, like me, you have not yet voted, I hope you’ll spend some time this weekend making sure you are fully informed before you head to the polls on Tuesday.

Ballotpedia, a non-partisan encyclopedia of American politics at all levels of government, has some very useful Election 2016 resources. This is a terrific one-stop-shop for folks who want a last minute primer on the 2016 election at the federal, state, and local level.

(1) To learn more about the candidates for President and Vice President and their positions on domestic, economic and foreign policy, check out this page.

(2) 34 of 100 seats in the United States Senate are up for reelection. Learn more about the Senate candidates running in your state here.

(3) Learn more about candidates for the House of Representatives here.

(4) A total of 93 state executive seats are scheduled for election in 23 states. All 13 types of executive offices will have an election in at least one state. Twelve states will elect governors, including a special election in Oregon, and ten states will elect attorneys general. Learn more here.

(5) 86 of 99 total state legislative chambers will hold elections on Tuesday. Learn more about these state legislative elections here.

(6) 162 statewide ballot measures have been certified for the ballot in 35 states. Learn more about ballot measures in your state here.

(7) There are many local ballot measures, as well. Check out this page to see what’s been proposed in your locality. 

(8) 63 state supreme courts and intermediate appellate courts across 34 states are holding elections in 2016. Learn more about your state judicial elections here.

(9) 39 of 50 states will hold elections for judges in general and limited jurisdiction trial courts. Learn more about these local judicial elections here.

(10) 46 of the country’s 100 largest cities are holding municipal elections this year. Learn more about your city’s municipal elections here.

(11) 644 of America’s largest school districts by enrollment are holding elections this year for 2,043 seats. These elections will take place in 38 states. These districts collectively educated a total of 17,177,187 students during the 2013-2014 school year—34% of all K-12 students in the United States. Learn more about school board elections where you live here.

(12) There are a number of political recall efforts in several states. Find out if elected officials in your state are being recalled here.

A Civic Holiday for SCOTUS Enthusiasts: The First Monday in October

28 U.S.C § 2 states that “The Supreme Court shall hold at the seat of government a term of court commencing on the first Monday in October of each year and may hold such adjourned or special terms as may be necessary.”

And so the first Monday in October has become an unofficial civic holiday of sorts for followers of the United States Supreme Court. And so it seems only appropriate to spend some time discussing the history of the United States Supreme Court.

Article III, §1 of the United States Constitution states that “[t]he judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” The Supreme Court of the United States was created in accordance with this provision and by authority of the Judiciary Act of September 24, 1789. It was organized on February 2, 1790.

Article III, §2 of the Constitution sets out the jurisdiction of the Supreme Court and provides that

“The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;-to all Cases affecting Ambassadors, other public Ministers and Consuls;-to all Cases of admiralty and maritime Jurisdiction;-to Controversies to which the United States shall be a Party;-to Controversies between two or more States;—between a State and Citizens of another State;-between Citizens of different States;—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

“In all Cases affecting Ambassadors, other public ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”

Under authority given to Congress by the Constitution, various statutes have been passed conferring appellate jurisdiction upon the U.S. Supreme Court.

The U.S. Supreme Court consists of the Chief Justice of the United States and 8 associate justices (the number currently fixed by statute in 28 U.S.C. §1).

Article III, §1 provides that “[t]he 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.”

The current justices of the United States Supreme Court include:

(1) Chief Justice John G. Roberts

(2) Associate Justice Anthony M. Kennedy

(3) Associate Justice Clarence Thomas

(4) Associate Justice Ruth Bader Ginsburg

(5) Associate Justice Stephen G. Breyer

(6) Associate Justice Samuel A. Alito, Jr.

(7) Associate Justice Sonio Sotomayor

(8) Associate Justice Elena Kagan

There is currently one vacancy on the Court. Chief Judge Merrick Garland of the United States Court of Appeals for the District of Columbia Circuit has been nominated by President Obama to fill that vacancy. The Senate has not yet voted to confirm Garland’s nomination. Article II, §2 of the Constitution states that the President “shall nominate, and by and with the advice and consent of the Senate, shall appoint . . . judges of the Supreme Court.”

 

When Congress Overrides a Presidential Veto: A Brief History

The Senate just voted to override President Obama’s veto of a law that would allow 9/11 survivors to sue Saudi Arabia (the Justice Against Sponsors of Terrorism Act). The House is poised to override his veto later this week, as well. [Update: The House voted today to override President Obama’s veto].

This is the first veto override of President Obama’s two terms in office, and is a good time to review Congress’s power to override presidential vetoes under the United States Constitution. Per the terms of the Constitution, President’s veto can be overridden by two-thirds of both houses of Congress. The super-majority requirement makes veto overrides relatively rare. A Congressional Research Service Report found that prior to 1969, Congress overrode approximately 1 of every 18 (5.7%) regular vetoes. Since 1969, Congress has voted to override about 1 out of 5 (18.3%) regular vetoes.

This useful chart from the same CRS report shows the number of vetoes overridden from 1789 through the presidency of George W. Bush (note that the report was published in April 2004, and does not reflect that Congress voted to override 4 of President Bush’s vetoes prior to the end of his second term).

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Article I, § 7 of the United States Constitution reads in relevant part –

Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sunday excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law. (emphasis added)

Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill. (emphasis added).

In Federalist No. 69, Alexander Hamilton discussed the power of Congress to override presidential vetoes –

The President of the United States is to have power to return a bill, which shall have passed the two branches of the Legislature, for re-consideration; but the bill so returned is to become a law, if upon that re-consideration it be approved by two thirds of both houses. The King of Great Britain, on his part, has an absolute negative upon the acts of the two houses of parliament. The disuse of that power for a considerable time past, does not affect the reality of its existence; and is to be ascribed wholly to the crown’s having found the means of substituting influence to authority, or the art of gaining a majority in one or the other of the two houses, to the necessity of exerting a prerogative which could seldom be exerted without hazarding some degree of national agitation. The qualified negative of the President differs widely from this absolute negative of the British sovereign; and tallies exactly with the revisionary authority of the Council of revision of this State, of which the Governor is a constituent part. In this respect, the power of the President would exceed that of the Governor of New-York; because the former would possess singly what the latter shares with the Chancellor and Judges: But it would be precisely the same with that of the Governor of Massachusetts, whose constitution, as to this article, seems to have been the original from which the Convention have copied.

And in Federalist No. 72, Hamilton went on to say

But the Convention have pursued a mean in this business; which will both facilitate the exercise of the power vested in this respect in the executive magistrate, and make its efficacy to depend on the sense of a considerable part of the legislative body. Instead of an absolute negative, it is proposed to give the executive the qualified negative already described. This is a power, which would be much more readily exercised than the other. A man who might be afraid to defeat a law by his single veto, might not scruple to return it for re-consideration; subject to being finally rejected only in the event of more than one third of each house concurring in the sufficiency of his objections. He would be encouraged by the reflection, that if his opposition should prevail, it would embark in it a very respectable proportion of the legislative body, whose influence would be united with his in supporting the propriety of his conduct, in the public opinion. A direct and categorical negative has something in the appearance of it more harsh, and more apt to irritate, than the mere suggestion of argumentative objections to be approved or disapproved, by those to whom they are addressed. In proportion as it would be less apt to offend, it would be more apt to be exercised; and for this very reason it may in practice be found more effectual. It is to be hoped that it will not often happen, that improper views will govern so large a proportion as two-thirds of both branches of the Legislature at the same time; and this too in defiance of the counterpoising weight of the executive. It is at any rate far less probable, that this should be the case, than that such views should taint the resolutions and conduct of a bare majority. A power of this nature, in the executive, will often have a silent and unperceived though forcible operation. When men engaged in unjustifiable pursuits are aware, that obstructions may come from a quarter which they cannot controul, they will often be restrained, by the bare apprehension of opposition, from doing what they would with eagerness rush into, if no such external impediments were to be feared.

Joseph Story in his Commentaries on the Constitution explained how the Constitutional Convention delegates viewed this legislative check upon the executive’s veto power –

The other point of inquiry is, as to the extent of the legislative check upon the negative of the executive. It has been seen, that it was originally proposed, that a concurrence of two thirds of each house should be required; that this was subsequently altered to three fourths; and was finally brought back again to the original number. One reason against the three fourths seems to have been, that it would afford little security for any effectual exercise of the power. The larger the number required to overrule the executive negative, the more easy it would be for him to exert a silent and secret influence to detach the requisite number in order to carry his object. Another reason was, that even, supposing no such influence to be exerted, still, in a great variety of cases of a political nature, and especially such, as touched local or sectional interests, the pride or the power of states, it would be easy to defeat the most salutary measures, if a combination of a few states could produce such a result. And the executive himself might, from his local attachments or sectional feelings, partake of this common bias. In addition to this, the departure from the general rule, of the right of a majority to govern, ought not to be allowed but upon the most urgent occasions; and an expression of opinion by two thirds of both houses in favour of a measure certainly afforded all the just securities, which any wise, or prudent people ought to demand in the ordinary course of legislation; for all laws thus passed might, at any time, be repealed at the mere will of the majority. It was also no small recommendation of the lesser number, that it offered fewer inducements to improper combinations, either of the great states, or the small states, to accomplish particular objects. There could be but one of two rules adopted in all governments, either, that the majority should govern, or the minority should govern. The president might be chosen by a bare majority of electoral votes, and this majority might be by the combination of a few large states, and by a minority of the whole people. Under such circumstances, if a vote of three fourths were required to pass a law, the voice of two thirds of the states and two thirds of the people might be permanently disregarded during a whole administration. The case put may seem strong; but it is not stronger, than the supposition, that two thirds of both houses would be found ready to betray the solid interests of their constituents by the passage of injurious or unconstitutional laws. The provision, therefore, as it stands, affords all reasonable security; and pressed farther, it would endanger the very objects, for which it is introduced into the constitution.

The first congressional override of a presidential veto occurred on March 3, 1845, when the 28th Congress voted to override President John Tyler’s veto of an appropriations bill.

The Congressional Research Service describes congressional procedure for reconsidering vetoed legislation

Congressional action on a vetoed measure begins when the President returns the bill to the chamber of origin along with his objections in the form of a veto message. Once the vetoed legislation has been received by the originating chamber, that house is constitutionally required to “reconsider” the vetoed bill. The Constitution is silent, however, on the meaning of “reconsideration.” Procedure and tradition govern the treatment of vetoed bills returned by the President. On receipt of the vetoed bill, the President’s message is read into the journal of the receiving house. After entering the message into the journal, the House of Representatives or the Senate complies with the constitutional requirement to “reconsider” by laying the measure on the table (essentially stopping further action on it), referring the bill to committee, postponing consideration to a certain day, or immediately voting on reconsideration (vote on override). Action by both the House and the Senate is required to override.5 A two-thirds majority vote by Members present (provided there is a quorum) is required to override a presidential veto. When one house fails to override, the other house will not attempt to override, even if the votes are present to succeed. Action by the Senate or the House of Representatives on a veto may be taken at any time during a Congress in which the veto is received.

227 years ago, the U.S. Senate Confirmed the First U.S. Supreme Court Justices

On September 26, 1789, the U.S. Senate voted to confirm  John Jay, John Rutledge, William Cushing, John Blair, Robert Harrison, and James Wilson as the first justices of the United States Supreme Court.

John Jay was confirmed as the nation’s first Chief Justice. Jay served as a delegated to both the First and Second Continental Congresses, and was elected president of the Continental Congress in 1778. He also contributed five essays to The Federalist (now known as The Federalist Papers), and was a stronger supporter of the federal Constitution of 1787. After serving as Chief Justice for five years, Jay resigned from the Supreme Court on June 29, 1795, and became Governor of New York. He declined a second appointment as Chief Justice in 1800, and President John Adams then nominated John Marshall for the position.

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John Rutledge  was elected to the South Carolina Commons House of Assembly. In 1764, he was appointed Attorney General of South Carolina by the King’s Governor and served for ten months. Rutledge served as the youngest delegate to the Stamp Act Congress of 1765.He was a member South Carolina delegation to the Constitutional Convention in 1787 and served as a member of the South Carolina Ratification Convention the following year. After one year on the Supreme Court, Rutledge resigned in 1791 to become Chief Justice of South Carolina’s highest court. On August 12, 1795, President George Washington nominated Rutledge Chief Justice of the United States. He served in that position as a recess appointee for four months, but the Senate refused to confirm him.

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William Cushing served as Chief Justice of the Massachusetts Supreme Judicial Court from 1780 to 1789. He strongly supported ratification of the U.S. Constitution and served as Vice Chairman of the Massachusetts Ratification Convention. Cushing served on the Court for 20 years.

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John Blair began his public service in 1766 as a member of the Virginia House of Burgesses. In 1770, he resigned from the House to become Clerk of the Governor’s Council. Blair was a delegate to the Virginia Convention of 1776, which drafted the State Constitution. Blair became a Judge of the Virginia General Court in 1777 and was elevated to Chief Judge in 1779. From 1780 to 1789, he served as a Judge of the First Virginia Court of Appeals. Blair was a delegate to the Federal Constitutional Convention of 1787 and was one of three Virginia delegates to sign the Constitution. He was also a delegate to the Virginia Ratification Convention of 1788. He served on the Court for only 5 years, and resigned due to the rigors of circuit riding and ill health.

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Robert Harrison served as the Chief Justice of the General Court of Maryland from 1781 to 1789.Harrison, ultimately, declined to serve as an associate justice, citing health reasons. The seat eventually went to James Iredell.

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James Wilson was elected a delegate to the First Continental Congress in 1775 and was a signer of the Declaration of Independence. He also served as a delegate to the Second Continental Congress. As a delegate to the Constitutional Convention in Philadelphia in 1787, Wilson was a member of the committee that produced the first draft of the Constitution. He signed the finished document on September 17, 1787, and later served as a delegate to the Pennsylvania Ratification Convention. He served on the Court for eight years.

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(Biographical information of the justices was provided by the Supreme Court Historical Society).

Presidential Debate Primer: Check out Washington Times Special Section on the President and the Constitution

In honor of Constitution Day this year, I took the lead on behalf of the National Constitutional Literacy Campaign on the publication of a Washington Times special section on the President and the Constitution. The special report includes articles from Senators Patrick Leahy and Mike Lee, among many others.

On the eve of tomorrow night’s presidential debate, I hope folks will consider reading, reflecting, and learning from the public officials, scholars and civic education advocates who submitted articles on this timely topic. It’s a great presidential debate primer.

The full special section is available in PDF form here.

Articles include:

Section 1: Citizens, Civic Knowledge, and Presidential Elections

(1) Julie Silverbrook, Why A Call for Civic Education and Constitutional Literacy?

(2) Julie Silverbrook, Student Competitions Spark Optimism, Civic Involvement

(3) Charles Quigley, Effective Civic Education Produces Informed Voters

(4) Dr. Michael Poliakoff, Civic Illiteracy and Civic Disempowerment

(5) Jeff Hymas, A Democratic or Republican Election? 

(6) Kyle Kondik, ‘Tyranny of the Swing States’?

(7) Meg Heubeck and Gerard Ferri, Get in the Game: Empowering America’s Next Generation to Vote

Section 2: Congress and the President

(1) Congressman George Nethercutt, Founders Intended ‘Tension’ In Co-Equal Branches

(2) Dr. Robert J. Spitzer, Political Gridlock, Past and Present

(3) Senator Patrick Leahy, Constitution Day: Protection Our Democracy

(4) Senator Mike Lee, The Battle to ‘Keep’ the American Republic

(5) Dr. Matthew Spalding, Congress and the New Imperial Presidency

Section 3: The Courts and the President

(1) Elizabeth Wydra, The President, the Constitution, and the Supreme Court

(2) Dr. Louis Fisher, How Courts Expand Presidential Power Beyond Constitutional Limits

(3) Ken Gormley, Presidents and the Supreme Court: Public Battles and Quiet Respect

Section 4: The Media and the President

(1) Julie Silverbrook, The Constitution on the Campaign Trail in 2016

(2) David Keene, the ‘Genius’ of the Constitution 

(3) Janine Turner and Andrew Langer, Is the Media Responsible for the Too-Power Presidency?

(4) Shoshana Weissman, How Social Media Gives Public Opinion Wings

Section 5: The Expansion of Presidential Authority

(1) Tim Donner, The Ever-Expanding Power of the Presidency

(2) Josh Blackman, Unteaching Professor Obama’s Constitutional Lessons

(3) Dr. Jason Stevens, Calvin Coolidge and the ‘two minds’ of the American Presidency

(4) Scott Michelman, Upholding the Right ‘To Be Let Alone’