Samuel Alito and Supreme Court Confirmation Process – Part II

Samuel Alito and Supreme Court Confirmation Process - Part II

Second part of a two part column.

The process of nominating and confirming a person to the Supreme Court is an involved process. When a vacancy occurs on the Supreme Court, it is the president's constitutional responsibility to choose a successor. There are no constitutional or legal requirements to serve as a Supreme Court Justice (beyond the "advice and consent of the Senate," and continuing to hold office, "during good Behaviour"). However, there has never been a nominee to the Supreme Court who was not a lawyer. In order to improve chances of confirmation, recent nominees have been put through an extensive vetting and screening process before they are publicly introduced.

The nominee then begins the Senate confirmation process - a process which has changed throughout the years. A key step is the confirmation hearings before the Senate Judiciary Committee, which has considered nominees regularly since after the Civil War. Since the 1950s all nominees have appeared before an open session of the Senate Judiciary Committee to testify in person. Beginning with the hearing for Sandra Day O'Connor, in 1981, all confirmations have been broadcast in their entirety.

After the confirmation hearings for Judge Alito, Senator Orrin Hatch (R-UT), the prior Chairman of the Judiciary Committee, summarized the testimony, action and results in a impassioned speech that I agree with:

"Judge Alito's testimony before this committee was absolutely consistent with the system of limited government and separated powers established by America's founders…The debate over judicial appointments in general, and over this nomination in particular, is about whether the American people and those they elect still have the power to make the law and define the culture, or whether judges should do it for us instead…Like America's founders, Judge Alito clearly believes in self-government, that the people and not judges should make law, and that judges have an important role but must know and stay in their proper place…"

Samuel Alito went on to receive the blessing of the Judiciary Committee and then the consent and confirmation of the U.S. Senate. He was sworn in as the nation's 110th Supreme Court Justice on January 31, 2006.

Today the "advise and consent" clause clearly means an up or down vote in the Senate. However, a CRS (Congressional Research Service) report on the Supreme Court Appointment Process states, "Constitutional scholars have differed as to how much importance the framers of the Constitution attached to the word "advice" in the phrase "advice and consent." The framers, some have maintained, contemplated the Senate performing an advisory, or recommending, role to the President prior to his selection of a nominee, in addition to a confirming role afterwards. Others, by contrast, have insisted that the Senate's "advice and consent" role was meant to be strictly that of determining, after the President's selection had been made, whether to approve the President's choice." Over the years, the nation has ended up with the latter as the accepted method for confirming a President's, Supreme Court nominees.

Supreme Court Justices often serve for more than a generation after the president who appointed them leave office. They can become a president's greatest legacy. There is no better example than Chief Justice John Marshall, appointed by President John Adams. In 1826, a quarter of a century after Adams nominated Marshall as Chief Justice, and lost his bid for re-election to Thomas Jefferson, Adams said: "My gift of John Marshall to the people of the United States was the proudest act of my life."

http://www.house.gov/miketurner/news/columns/4.07.06.shtml