Quick Facts: What You Should Know About Filling the U.S. Supreme Court Vacancy

 

The American Association of University Women (AAUW) joined the nation in mourning the passing of U.S. Supreme Court Justice Antonin Scalia, who served on the court for nearly 30 years. The Supreme Court has pending cases that will greatly affect the everyday lives of women and their families, and Justice Scalia’s death creates a vacancy at a critical juncture. It is in the face of losing such a legal giant that we remember how fortunate we are, as a nation, to have a constitutional process to see us smoothly through this transition.[/intro]

What does the Constitution say about Supreme Court vacancies?

  • Under Article II of the Constitution, the president “shall appoint … judges to the Supreme Court,” and the Senate’s role is to provide “advice and consent.” Known as the “appointments clause” of the Constitution, it lays out three sequential acts in order to fill a vacancy. First, the nomination by the president; second, the advice and consent of the U.S. Senate; and third, the appointment by the president. There is no exception for the president to refuse to nominate a successor nor is there an exception for senators to refuse to provide advice and consent.
  • Only the president has the constitutional authority to nominate a justice and the Senate does not have any authority until after the president makes a nomination. Although it may be good practice, the president is under no obligation to obtain advice from the Senate before a nomination since the Senate’s duty to provide advice and consent begins only after the nomination.

How much time is needed to fill a Supreme Court vacancy? Do nominations happen in presidential election years?

  • Every U.S. Supreme Court nominee since the 1980s has received a prompt hearing and vote within 100 days. The longest wait, Justice Clarence Thomas, took only 99 days, while Justice Sandra Day O’Connor was confirmed in just 33 days. President Barack Obama’s two previous nominees received hearings and votes within 88 days. There is almost a full year — more than 330 days — before the next president takes office, more than sufficient time for an orderly and thorough confirmation process.
  • Fourteen presidents have appointed 21 justices during presidential election years, and many of these presidents were “lame ducks” who filled Supreme Court seats after their successors had been elected. Even when the Senate is not controlled by the sitting president’s party, confirmations do occur in election years. Since at least 1900, there have been zero instances where a president has failed to nominate and/or the Senate has failed to confirm a nominee in a presidential election year because of the impending election. In that period, there were several nominations and confirmations of justices during presidential election years.  For example, in 1988, Justice Anthony Kennedy was nominated by President Ronald Reagan and confirmed by a Democratic-controlled Senate (97-0).

What happens if the president does not fill the vacancy?

The Supreme Court resolves disagreement among the lower courts to provide legal certainty on important issues. When there are eight sitting justices and the justices are divided evenly, the law remains undecided or can be reconsidered when the court returns to full strength. This potential uncertainty is great cause for concern among women’s rights advocates with important issues before the Supreme Court.

What do the experts say about filling Supreme Court vacancies?

“I don’t agree [with waiting to appoint] … I think we need somebody there now to do the job and let’s get on with it.”

— Retired Supreme Court Justice Sandra Day O’Connor, February 18, 2016

“For anyone to say, no matter who is sent up by the president as his nominee, that we will not consider that person, does not strike me as consistent with our constitutional obligations.”

— Sen. Susan Collins (R-ME), February 26, 2016

“I can understand their reluctance given the controversy that surrounds all of the debate that has already occurred … But that is not sufficient reason to forgo your duty [to consider the president’s nominee].”

— Richard Lugar, Former Senator (R-IN), February 22, 2016

“In 21 of 24 instances where presidents have nominated justices in their final year in office, the Senate has confirmed the nominees. … The Constitution requires the Senate to provide advice and consent on judicial nominees. The Senate Judiciary Committee is in breach of that duty.”

— Erwin Chemerinsky, Dean of the University of California, Irvine, School of Law, February 17, 2016

“[B]oth President Obama and the Senate should fulfill their duties under the Constitution. … In our view, refusal even to take up an Obama nomination disrespects the Constitution. In the end, individual senators should have to explain to Americans why they oppose or support a court nominee.”

Sioux City Journal Editorial Board, February 22, 2016

“Members of Congress also take an oath, to ‘support and defend’ the Constitution and to ‘well and faithfully discharge the duties of this office.’ The Constitution is clear that when a president makes a nomination to fill a vacancy the Senate is expected to give its advice and consent. It is unconscionable that the country could go without a tie-breaking ninth justice for almost an entire year for no other reason than the people running the Senate hope one of their own will move into the White House next.”

Globe Gazette (Iowa) Editorial Board, February 22, 2016

What can AAUW members do?

There has been recent uncertainty (raised by partisan groups, primarily) concerning the constitutional process for confirming a Supreme Court justice. But we need a fully functioning judiciary to carry out an essential role of government. Not only can the Supreme Court be a shield for civil rights laws like Title IX and the Equal Pay Act, but it is often also the best and last hope for women who have experienced discrimination in education, employment, health care, and other aspects of their lives. A strong judiciary is critical to American women.

During this highly charged political season, AAUW members can play an important role in informing the public about the constitutional process for filling vacancies. Whether you use this information at a branch meeting, in a letter to the editor of your local paper, or even at your workplace or kitchen table, you can make a difference by educating others about the constitutional framework that allows us to rise above partisanship to ensure a fully functioning Supreme Court.

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