Samuel Alito and Supreme Court Confirmation Process – Part I

Samuel Alito and Supreme Court Confirmation Process - Part I

Earlier this year, Judge Samuel A. Alito Jr. was sworn in as an Associate Justice of the United States Supreme Court. Justice Alito is only the 110th person confirmed to our nation's highest court.

From the announcement of Judge Alito's selection as President Bush's choice to replace Justice Sandra Day O'Connor, through the confirmation process my office received significant feedback about the type of Supreme Court Justice many people thought Samuel Alito would make. People clearly spent considerable time to write thoughtful letters for and against confirming Judge Alito. However, the confirmation of a Supreme Court Justice is a matter for the Senate alone. The Constitution provides no formal role for the House of Representatives in the confirmation process of Supreme Court Justices.

The confirmation process is found in Article II, Section 2, clause 2 of the Constitution, and states that the President "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint…Judges of the supreme court." Of course, the Constitution is the fundamental set of principles by which the United States is governed.

The U.S. Constitution is an amazing and inspiring document. The 55 delegates, who gathered for the Constitutional Convention, in Philadelphia, in 1787, had no contemporary country to look toward for guidance. They were an extraordinary group of men. Ben Franklin was the oldest at 81. The youngest delegate was Jonathon Dayton of New Jersey, (for whom the city of Dayton, Ohio is named) who was only 26. Only 39 of the delegates would eventually sign the Constitution, with three dissenting. There were many questions whether democracy would work and whether their new Constitution would survive. Today, the U.S. Constitution is the longest surviving (and shortest) national constitution in the world.

The Founding Fathers created three separate but equal branches of government in the Constitution. The three branches are: The executive branch (the president), the legislative branch (congress) and the judiciary branch (the courts). The Constitution entrusts each branch with specific powers and provides a set of checks and balances to ensure no single branch of the federal government grows too strong.

One of the reasons a Supreme Court appointment is so important is the unique guarantee provided to members of the judicial branch as enumerated in Article III, Section 1 of the Constitution, which states: "The judicial Power of the United States, shall be vested in one supreme Court…The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour."

Once confirmed, a president cannot remove a Justice, nor can they be voted out of office by the public. In Federalist Paper 78, Alexander Hamilton maintained that, "Judges as Guardians of the Constitution…nothing can contribute so much to its firmness and independence as permanency in office. A Supreme Court Justice can only be removed from office through the difficult process of impeachment. The only time this was attempted was in 1804 when the House impeached Justice Samuel Chase, one of George Washington's appointments. However, Chase was acquitted by the Senate and remained on the bench until 1811.

Since 1789 there have been 157 nominations for the Supreme Court, including 35 that have failed for one reason or another. Most of those have been withdrawn before the Senate voted, or the Senate simply stopped the process before the final vote. Five failed at first, only to win confirmation later. Just 11 were rejected in a vote by the full Senate, most recently Robert Bork. This is the Senate fulfilling its "advise and consent" role as written in the Constitution.

Next week this column continues with a discussion of the confirmation process of a Supreme Court Justice and in particular, Samuel Alito.

http://www.house.gov/miketurner/news/columns/3.31.06.shtml