Recent death of Court Justice Scalia raises judicial questions
U.S. Supreme Court Justice Antonin Scalia was found dead on Saturday at a Texas resort at the age of 79, raising questions about nominating new justices and the presidential appointment process following the death.
Scalia, who was first appointed to the Supreme Court in 1986, was the longest serving Justice on the Supreme Court and is the first Supreme Court Justice to die mid-term since 1954, not including William Rehnquist. His death may hinder conservative pursuits.
Scalia’s vacancy comes during a time when the Supreme Court is tasked with deciding numerous cases on issues including abortion, affirmative action, religious freedom and healthcare.
The Supreme Court is composed of nine appointment officials, and with one vacant spot, tie votes are a possibility.
How are Supreme Court justices really appointed? We’ll break it down for you:
Phase One: The President Finds a Favorite
The U.S. Constitution states in Article II Section 2 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 can nominate anyone he wishes to fill Scalia’s vacancy.
Phase Two: Confirmation Nation
Next, the president’s nomination is sent to a smaller group within the U.S. Senate, the Senate Judiciary Committee. The Committee conducts a three-part process: a background check of the nominee, a public hearing in which the nominee is questioned by the Committee and, lastly, a report to the U.S. Senate with a decision for the nominee.
Phase Three: The Senate Struggle
If the Senate Judiciary Committee sends their recommendation to the Senate, the Senate enters an “executive session,” which is enforced by the Senate majority leader, Republican Mitch McConnell. Despite McConnell stating that he refuses to appoint a new justice until after the 2016 presidential election, the nomination can still be considered if a senator makes a motion to do so. In typical U.S. Congress fashion, a filibuster can block the motion, but if the motion does make it to a closing debate, the motion can be taken to a vote.
Phase Four: The Vote
The motion to approve the president’s judicial nomination can be voted on by the Senate and requires a simple majority. After the vote, the Senate secretary will notify the president that his nomination was successful, and he can sign a commission to appoint the new justice.
If All Else Fails…
Article II of the Constitution states the president “shall have power to fill up all vacancies that may happen during the recess of the Senate.” The appointment can last until the end of the Senate’s next session. Since the Senate is currently in recess until Feb. 22, the president has the ability to nominate and appoint a justice without consulting the Senate.
Republicans and Democrats are divided on the issue of when a new justice should be appointed or if President Obama should even attempt to appoint a new justice during an election year; however, in the case of a tie vote, the Court cannot make effective and active decisions on cases, allowing the lower court decisions to stand.
A version of this story appeared on page 6 of the Thursday, February 18, 2016 print edition of the Daily Nexus.
[Correction: A version of this story previously stated incorrectly that “however, until a justice is appointed, the Court cannot make effective and active decisions on cases, rendering it indefinitely useless.” The article has been corrected to say “however, in the case of a tie vote, the Court cannot make effective and active decisions on cases, allowing the lower court decisions to stand.”]