Donald Trump's Agenda for appointing Supreme Court Judges - An analysis
Based on the election campaign of President Elect Donald Trump, it is speculated that the American...
Based on the election campaign of President Elect Donald Trump, it is speculated that the American Supreme Court may undergo significant changes, starting from the appointment of Judges. His top priority will be to fill up the present and future vacancies with conservative Judges, which may not be welcomed by liberals. With this happening the Court will again incline towards right, as it was for decades. Also experts predict that there may be additional vacancies during Trump's Presidency as Justices Ruth Bader Ginsburg (born 1933), Anthony Kennedy (born 1936) and Stephen Breyer (born 1938) will be over 80 years old during Trump's first term of office.
The Present Vacancy
On February 13, 2016, Associate Justice Antonin Scalia was found dead in Texas. This is the second time in 60 years, a sitting justice has died.
Justice Antonin Scalia was appointed by President Ronald Reagan in 1986 as an Associate Judge. He was considered to be an arch-conservative in the bench. Over the past 30 years he has shown a conservative jurisprudence and ideology. He was a strong defender of the powers enjoyed by the executive branch and believed that the president should possess supreme control in many areas. It is the duty of the President to nominate a Justice to fill the vacancy.
Problems due to the Vacancy unfilled
Due to the current political situation the appointment is getting delayed. There are some immediate complications due to this delay, as Supreme Court has shown a reluctance to accept new cases. Experts have also cautioned that there may be a deadlock with 4-4 votes in rulings as the present number of judges is 8. During the period between February 2016 and the first week of April 2016, the Court has accepted only three cases and all three non-controversial to avoid a deadlock. In the last five years during the same period, the Court has taken on an average 8 cases.
Previous cases where Justice Scalia had voted, and not been publicly decided are void. Of Course, in some cases Justice Scalia's vote is not necessary – for example, if he was in the dissent side or if the majority votes included more than five Justices (5-3) then the case will be publicly decided with the present 8 Judges.
But if Justice Scalia was a part of the 5 Justice majority in a case- for example if five judges including Justice Scalia stand on one side and four on the other side, without Justice Scalia the court is now divided 4-4. In these cases there is no majority for a decision and the lower court's ruling will prevail. And this will continue until a new Judge is appointed to fill the 9th Judge.
Procedure for the appointment of the SC Judges
The SC has a total of nine Justices. 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."
President nominates according to Article 2 of the constitution and the Senate confirms. This shows the division of power between the President and the Senate which was considered essential by the founders.
It is customary for the President to nominate candidates who generally share their ideological views, even though a justice's decisions may end up being contrary to President's expectations. President Dwight D. Eisenhower expected Chief Justice Earl Warren to be a conservative judge, but his rulings and stand were among the most liberal in the Court's judicial history.
The Constitution does not specify any qualification to become a SC Justice, as the President may nominate anyone including politicians, outsiders, sitting Justices to serve as a SC Justice.
After the President nominates a person, Senate Judiciary Committee conducts hearings and votes on whether the choice should go to the full Senate. At times the Committee has also interviewed and questioned the nominee. Once the Committee sends the nomination, the full senate considers voting it. Usually the Senate does not reject any nominee. In the past Senate has explicitly rejected only 12 Supreme Court nominees, Robert Bork being the most recent (1987).
Though Senate rules do not allow a negative vote in the committee to turn down a nomination, a nominee may be filibustered.
The president is also allowed to withdraw a nomination before the actual confirmation vote occurs, when it is clear that the Senate may reject the nominee. Once the Senate selects a nomination, the president should prepare and sign a commission, to which the seal of the Department of Justice must be affixed.
After the appointment, the Justice will serve Supreme Court for rest of his life, as the Constitution says the Justices "shall hold their offices during good behavior". Yet they can voluntarily resign or retire or can also be removed by an impeachment.
Before 1981, the nomination and selection process of justices did not take a longer time as it happens now. Usually they were approved in a month or two. But from Reagan administration to the present, the process is taking much longer time.
President Obama's Nomination
Article II of the U.S. Constitution gives the president the power to nominate justices to the Supreme Court, subject to the "advice and consent" of the Senate. Immediately after the death of Justice Scalia, President Obama nominated Merrick Garland (presently a Judge in the DC Court of Appeals) to serve as an Associate Justice of the Supreme Court. He was also considered twice for the U.S. Supreme Court, in 2009 and in 2010.
Justice Merrick Garland has more federal judicial experience than any Supreme Court nominee and is currently the oldest Supreme Court nominee since Lewis F. Powell, Jr. in 1971. If Merrick Garland becomes the Judge of SC, then there will be a majority of liberals which will change the balance of Court. This is against the interest of the Republican Party which enjoys a majority in Congress.
President Obama Vs Senate Conflict
Knowing the implications of appointing a liberal Judge, till date the Senate has not held a hearing or vote on the nomination. The refusal of the Senate dominated by the Republicans to consider the nomination has created a controversy. This situation has led to a conflict between the White House and the Senate.
The Senate Republicans led by Majority Leader Mitch McConnell announced that they would not consider any nominee made by President Obama, and that a nomination should be left to the next President. President Obama responded that his intention was to "fulfill his constitutional duty to appoint a judge to the highest court and that there was no "well established tradition" that a President could not fill a SC vacancy during the president's last year in office.
Again the republicans cited a 1992 speech by then senator and present Vice President Joe Biden, that "if a Supreme Court seat becomes vacant, then President Bush should wait until the elections getting over to appoint a replacement, or else appoint a moderate acceptable to the then-democratic dominated Senate. Republicans call this as "Biden Rule". Joe Biden also responded that his stand then and now is that president and congress should "work together to overcome partisan differences" regarding judicial nominations.
Also the Senate's Judiciary Committee chairman Senator Chuck Grassley, said within hours of Scalia's death, President Obama's successor should select the next justice. So the deadlock continues and now the next president being elected, it is on Trump's to-do list on appointing the new Justice.
President Elect Trump's Nomination
President elect Trump has certain promises to fulfil which were the priority on his election portfolio. To name a few protecting Gun Rights, curtail same sex marriage rights, and more importantly overturn the 1973 ruling allowing the Right to Abortion. So it is very important for Trump to appoint a conservative justice to get his promises.
He released his first list of nominees in May this year containing many conservative persons hinting that he would surely nominate only a Conservative candidate. The list contained only Whites, 6 sitting on federal circuit courts and 5 on state SCs. Trump also got the support of few conservative think tanks to decide these nominees. Later this September he announced another list of nominees which included women, African-American.
Trump's Options
Unlike President Obama, President elect Trump's Republican Party enjoys a majority in the Senate. It is not a great task to appoint his choice of Justice. But we cannot underestimate the possibility of Senate filibuster (a tool that allows the minority party to stretch a debate and block voting) unless and until a cloture (motion or process in parliamentary procedure aimed at bringing debate to a quick end) is moved. Even moving a Cloture may at times not be easy, if the majority party struggles in getting the required majority to move Cloture. For instance, President Lyndon Johnson's nomination of Justice Abe Fortas to succeed Earl Warren as Chief Justice was successfully filibustered in 1968.
President Elect and his party has to be more careful to tackle these issues. Also President elect should win the Party stalwarts like Mitt Romney, John McCain, Kelly Ayotte to name a few who stand divided in supporting Trump. To gain support of the Congress Trump needs to pacify them.
Apart from these, there are many cases challenging President Obama's rules which are at present in lower courts under trail, and probably the lower courts might back these rules, which means they would become law unless the SC decides to take these cases. As discussed earlier these cases may also end up with 4-4 ruling and obviously the lower court ruling will prevail. So Trump may plan to fill the vacancy in his favour immediately and with a conservative.
SCOTUS is a commonly abbreviated word for the "Supreme Court Of The United States" similar to POTUS "President Of The United States"
