Recently Judge John Roberts, Jr. was nominated to the Supreme
Court. What is the constitutional basis and jurisdiction of the Supreme
Court?
The U.S. Constitution refers to the Supreme Court, but it gives virtually
no guidance on the composition of the court, the nomination process,
or even what the court is supposed to do.
In fact, until the early 1800s, the Supreme Court was almost powerless,
that was until the famous case of Marbury vs. Madison .
In 1803 Justice John Marshall wrote an opinion that effectively gave
the court the power to decide issues interpreting the constitution.
If the Constitution does not set out the process of nominating
a Supreme Court Justice, how did that process evolve ?
The nomination process was set up by Congress, and it has changed
over the years, including the number of justices on the bench.
However, our current system has been in use since the 1930s. Many
aspects of the nomination process are governed more by tradition than
by any written law or regulation.
What are the qualifications someone has to have in order to
be nominated?
There are no specific qualifications whatsoever. You don't even have
to be a lawyer to serve on the Supreme Court. Technically, the president
could pick someone off the street.
However, tradition dictates that all nominees have law degrees and
have an outstanding judicial record as a federal judge.
But in the past, some justices have been former Congressmen or governors,
and one Chief Justice was a former president, Howard Taft.
What are the steps to the nomination process?
The president makes the nomination, and then the Senate holds confirmation
hearings.
Most of the time, the Senate approves the nominee, which is done by
a simple majority vote. This is especially true when the president's
party enjoys control of the Senate, as our President currently does.
However, it is possible for the Senate to reject a nominee- they
have done so 12 times in history. There have been other occasions when
the president withdrew a nomination due to strong opposition by the
Senate.
If the president's party controls the Senate, couldn't he
nominate anyone he wants?
If a president tries to push through a nominee with extreme views,
he could turn away Americans who consider themselves moderates, and
energize voters who oppose the president's party. This could have very
serious consequences in upcoming elections.
The reputation of the justice who is being replaced is also a factor.
Sandra Day O'Connor is widely considered a moderate with conservative
leanings. Replacing her with an extremely conservative justice would
have been difficult. When Chief Justice Rehnquist retires, the president
may have an easier time nominating a more conservative judge.
Why are Supreme Court nominations so important?
If the Supreme Court decides that a law is unconstitutional, the only
way to override the court is with an amendment to the Constitution,
which is very difficult. Also, Supreme Court justices serve for life.
They never have to face re-election. That means that a president's
choice when it comes to court appointments will outlast his term in
office by many years.
Finally, justices are notoriously independent. Their decisions on
the bench are not subject to approval by the president who nominated
them.
It is important that we continue to place on the High Court Justices
who will work to hold the line between the powers of government and the
constitutional rights of citizens.
