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The Process To Select A Supreme Court Justice

01.06.17 written by

As a result of Justice Antonin Scalia’s death on February 13, 2016, the United States Supreme Court currently has only eight Supreme Court Justices.  The selection of a replacement for Justice Scalia will be an important decision.  The question becomes who will make that decision and what is the specific process for appointing a new Supreme Court Justice.

Normally, the Supreme Court has nine justices: a Chief Justice and eight Associate Justices.  The current Chief Justice is John G. Roberts, Jr.  Justice Roberts was nominated by President George W. Bush after the death of Chief Justice William Rehnquist.  Supreme Court Justices are nominated by the President of the United States and confirmed by the United States Senate.  These individuals are appointed for life although there is a process whereby Congress could remove them through impeachment for wrongdoing; however, this has happened only once (in 1805).  The justice who was removed was Samuel Chase.  Generally speaking, a significant portion of the justices usually serve until their passing; however, some justices leave the position through retirement.

The Supreme Court hears cases dealing with constitutional issues or federal law.  These cases are usually appealed from the lower federal court levels or a state’s supreme court.  When the Supreme Court hears a case, usually all nine of the justices hear the case unless one justice has chosen not to participate due to a conflict of interest or unless there is some type of illness.  A minimum of six justices must be present to make a decision on a case.  Each case is usually decided by a majority vote, and in the case of a tie, the decision of the lower court is upheld.  As a result of Justice Scalia’s death, these potential ties are could occur.  It is a general opinion that the current makeup of the Supreme Court had five conservative justices and four liberal justices.  Justice Scalia was a conservative justice.  Therefore, as a result of his death, that would leave a number of cases potentially tied at four to four.  A lower court’s decision is upheld if there is a tie among all of the Supreme Court Justices.

Normally, the current acting President of the United States nominates someone to the position of Supreme Court Justice if there is a vacancy.  This is a unique situation this year since this is a presidential election year.  Both liberals and conservatives know that this is an important nomination because, without Justice Scalia, the Supreme Court is, generally speaking, equal in that they have four conservative justices and four liberal justices when deciding various issues.  Some Republicans believe that President Obama should forego this nomination and allow the incoming new President to make this nomination.  However, some Democrats believe that since President Obama still has one year remaining on his presidency, he should be permitted to make this nomination.  After the President makes a nomination, it is sent to the Senate Judiciary Committee and then the Judiciary Committee does an extensive background check and reviews the nominee’s qualifications and credentials.  A hearing is held by the Senate Judiciary Committee and witnesses, both in favor and against the nomination, are called. 

After this process, the Judiciary Committee votes on the nomination and then makes a recommendation that the nominee either be confirmed, rejected, or that they do not have a recommendation and, therefore, the nominee is never sent to the full Senate for a vote.  The full Senate then debates the nomination and a vote of 60 senators is required to end the debate.  At the end of the debate, the senators then vote on the nomination and the confirmation of the nominee requires a simple majority of the senators present and voting. As if our political year was not interesting enough with both the Republicans and Democrats volleying for position to obtain their party’s nomination for President of the United States, now we will also have an additional political process to entertain us with the nomination of a new Supreme Court Justice. Personally, I cannot wait to see how all of this plays out.

NOTE: This general summary of the law should not be used to solve individual problems since slight changes in the fact situation may require a material variance in the applicable legal advice.

James F. Contini II, Esq. Certified Specialist in Estate Planning, Trust & Probate Law by the OSBA Krugliak, Wilkins, Griffiths & Dougherty Co., LPA 158 North Broadway New Philadelphia, Ohio 44663 Phone:   330-364-3472 Fax: 330-602-3187 Email: