Can a Rejected Supreme Court Nominee Be Appointed Again
On Sabbatum, President Donald J. Trump said he would seek to nominate a replacement for the tardily Justice Ruth Bader Ginsburg, on the Supreme Courtroom. The procedure in normal times follows a fairly defined pattern. But the combination of an upcoming full general election and the COVID-19 crisis could see some differences in the nomination process.
Justice Ginsburg passed away at the age of 87 on Friday in Washington, D.C. The Supreme Court volition role with eight Justices when it convenes its long briefing to consider new cases about a week prior to the first Monday in October, the official showtime of its side by side term. For now, the Court will hear arguments using audio teleconferencing.
Nether Article Ii, Section 2, of the Constitution, the Supreme Court nomination process starts with the choice of a Supreme Courtroom nominee by President Trump. The President and then will officially notify the Senate of the nomination—commonly via a written statement. This is related to the Constitution's "Appointments Clause" in Commodity 2, Section 2, Clause ii, which reads that the President "shall nominate, and by and with the Advice and Consent of the Senate, shall engage … Judges of the supreme Court."
Commodity I Section five of the Constitution allows both houses of Congress to create their own rules for proceedings, including the judicial confirmation process. And under the Senate'south current standing rules, the nomination is sent to the Senate Judiciary Committee, unless the nominee is a electric current or former Senate member.
In contempo years, the average Supreme Court nomination and confirmation process has taken between 2 and three months. The nomination and confirmation process for Justice Brett Kavanaugh lasted a fiddling nether three months, while the aforementioned procedure for Justice Neil Gorsuch took a little over two months.
The electric current Senate would take until January 2, 2021 to consider the nomination and vote on it. When a new Senate is seated in the next Congress, the matter would need to be reconsidered if the nominee is non confirmed by the Senate. For case, when Merrick Garland'due south nomination was not voted on by the Senate in 2016, his nomination was returned to the new President on Jan 3, 2017.
While information technology is not unusual for a Supreme Court nominee to be confirmed in the months of November and December, it would exist unusual in a general election year with the presidential race underway. The most-recent justices confirmed by the Senate in a December Senate during a presidential election year were William Burnham Woods (in 1880), Ward Chase (in 1872), and Salmon Hunt (in 1864 as Primary Justice).
Once the president'due south nomination is sent to the Senate, the Senate Judiciary chair, Lindsey Graham, would qualify a pre-hearing investigative stage nigh the nominee, followed by public hearings at the Judiciary Committee and a determination on a recommendation to the full Senate.
The nominee outset undergoes the all-encompassing investigation procedure and meets with senators who are part of the approval process. Next, the nominee usually appears at a public hearing at the Senate, facing a multifariousness of questions from the Judiciary Committee. Past a bulk vote, the Judiciary Committee can written report the nomination favorably, report information technology unfavorably, or report it without making any recommendation at all. It is also possible for the committee to take no action of any type to send a report to the total Senate.
Once a recommendation vote is taken by the Judiciary Committee, and the nomination is sent to the entire Senate for a floor vote, a simple majority is needed to ostend the nominee. The filibuster for Supreme Court nominees was eliminated in 2017, which would take required 60 votes for the nomination to receive a floor vote under cloture rules.
When the nomination is reported to the full Senate for consideration, it is placed on its Executive Calendar. The Senate Majority Leader, Mitch McConnell, decides how to arroyo the voting process. The Republicans have 53 seats in the current Senate, and Vice President Mike Pence would vote to break a tie vote, so 50 votes are needed to confirm the nominee if the full Senate is present and voting.
The age of COVID-19 could complicate matters since much of the Senate's business in considering Supreme Court nominations in the past has been conducted in person, including voting on the confirmation of a Supreme Court nominee. For at present, the Senate does non permit its members to vote remotely.
A different scenario would involve a recess appointment to the Supreme Courtroom by President Trump. The Constitution allows the President to appoint a member to the Supreme Courtroom if a vacancy exists and Congress is non in session. Article 2, Section 2, Clause three of the Constitution permits the President "to make full all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session."
The terminal Supreme Courtroom recess appointments were during the Eisenhower era: Earl Warren, William Brennan, and Potter Stewart. In fact, President Eisenhower appointed Justice Brennan to the Court on October xv, 1956, just weeks before a presidential election. The Senate then confirmed Brennan on March xix, 1957.
However, the definition and practice of when the Senate is in recess has changed since the 1950s. In a recent Congressional Research Service written report, the CRS cites the Supreme Court's 2014 decision in National Labor Relations Board v. Noel Canning as limiting the President's window to make a recess date to occasions when the Senate has adjourned for at least 10 days.
"In calorie-free of historical practise, a recess of more iii days but less than ten days is presumptively too brusque to fall inside the [Adjournments] Clause," said Justice Stephen Breyer for a unanimous courtroom. In a concurring stance, Justice Antonin Scalia believed that such vacancies could only be filled by the President if they occurred during a recess, and not before.
Too, in April 2020, President Trump argued that he had the power if needed under Commodity II, Section 3 to force Congress to adjourn. Under that provision, "in Case of Disagreement between [the Firm and Senate], with Respect to the Time of Adjournment, [the President] may adjourn them to such Fourth dimension equally he shall recall proper." Such a scenario would accept to include votes on the House and Senate floors that differ on an adjournment time.
If the president were able to brand a recess appointment to the Supreme Court, that justice is but eligible to serve for the next session of Congress unless the justice is confirmed past the Senate. The CRS noted that of the 12 recess appointments fabricated to the Courtroom since 1789, all 12 justices received nomination votes in the Senate and 11 were confirmed. The exception was Chief Justice John Rutledge in 1795, whom the Senate rejected because of his opposition to the Jay Treaty.
Scott Bomboy is editor in chief of the National Constitution Center.
Source: https://constitutioncenter.org/interactive-constitution/blog/the-supreme-court-nomination-process-what-happens-next
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