The Constitution sets forth no specific requirements. However, members of Congress, who typically recommend potential nominees, and the Department of Justice, which reviews nominees' qualifications, have developed their own informal criteria. One is not nominated or appointed to the position of chief judge except for the Chief Justice of the United States ; they assume the position based on seniority. The same criteria exists for circuit and district chiefs.
The chief judge is the judge in regular active service who is senior in commission of those judges who are 1 64 years of age or under; 2 have served for one year or more as a judge; and 3 have not previously served as chief judge. The "Rule of 80" is the commonly used shorthand for the age and service requirement for a judge to assume senior status, as set forth in Title 28 of the US.
Code, Section c. Senior judges, who essentially provide volunteer service to the courts, typically handle about 15 percent of the federal courts' workload annually.
White: [] Well I hate to engage in fierce agreement on a podcast but I do want to start with another great point that Lori makes: that in all- when we focus on the Senate, we don't always keep our eye on the ways in which a president might preemptively calibrate his own nominee- choice of nominee to maximize the chance of, or at least to ensure a chance of confirmation.
The namesake of the institution where I work, President Hoover, famously nominated Judge Cardozo to the Supreme Court late in his own time on the Supreme Court- a nomination that was recognized at the time as one that was less about ideological alignment with the president and the nominee and rather of the president picking a strong nominee who he thought would secure the confirmation, the advice and consent of the Senate in a politically heated year.
And so it is important to keep an eye- keep in mind the fact that the president's own actions might be behind the scenes shaped by the political environment. Of course then in turn the political environment does shape everything else and I think you're right to ask whether the structural changes within the Senate have changed it.
I mean the nature of who is being elected to the senators has mattered immensely as the political parties in this time have become more sorted going back to the s, more ideologically sorted.
That's going to have an impact on it. Senators' willingness to threaten or then make changes to Senate procedure obviously has been important and it's had an iterative effect. There weren't- there were very few if any filibusters of Supreme Court nominees as I understand it, Lori might know better. But there were there were no outright filibusters in terms of cloture votes until much more recently and then as that became a possible tool, one that was threatened by various senators, there was the counter response of well then we'll change the rules to end filibusters and so on.
We have this iterative effect. But just to focus briefly on I thought some interesting choice of words by Lori, she said the court's come to be seen as a prize, the spoils for the victor of a presidential election, something the president owes his base.
That's true. I think it's also true that the court is seen as a prize in part because the court's made itself a prize and I think we have to keep in mind that the changing politics of Supreme Court nominations has also been a function of the work of the Supreme Court or at least a function of how the work of the Supreme Court is seen by the public.
And this is a point that Justice Scalia made so eloquently in his dissent, at the end of his dissent in Planned Parenthood vs. Casey in ' At the very end of that opinion there's this remarkable passage I'd urge your listeners to take a look at. This is in the immediate aftermath of the Thomas hearings and you have justices concerned about the political atmosphere surrounding the court and the protests and so on.
And Justice Scalia goes out of his way in this dissent to say that those who are concerned that Supreme Court nominations are becoming too hotly contested, too politically venomous must keep in mind that they will remain that way so long as the court makes value judgments on behalf of the country and their constitutional decisions reflect that.
Now we can- it's for another time to debate whether Justice Scalia was right in his diagnosis about what the court was doing. But I think it is fair to say that Justice Scalia was right that the more that the court is seen by the public as a political adjudicator the more that the people will demand that their elected officials make the confirmation process more political.
As Scalia said, if the people think that the court is deciding things based on value judgments, well the people are perfectly capable of making value judgments of their own and they'll see to that through the confirmation process. That I think is the last ingredient or one of the last ingredients to keep in mind, that as either the court's work or the public's perception of the court's work changed in recent decades, that in turn I think is a major ingredient in the current composition of the confirmation process.
Rosen: [] Thank you so much for calling- I can't resist taking the invitation. You called my Justice Scalia's vivid searing dissent in the Casey case. Listeners can of course check it out. And he calls to mind the portrait of Roger Taney- Chief Justice Tany who wrote the Dred Scott decision, hanging in the Harvard Law School library and Scalia says he sits facing the viewer and staring straight out.
There seemed to be on his face and in his deep set eyes an expression of profound sadness and disillusionment. Perhaps he always looked that way even when dwelling on the happiest of thoughts. But those who know how the luster of his great chief justiceship came to be eclipsed by Dred Scott cannot help believing that he had that case, its soon to be played out consequences for the nation burning on his mind. And it's also relevant Adam because by some measures we are more polarized today than at any time since the Civil War.
In the s there was a 50 percent overlap between the most liberal Republicans and the most conservative Democrats in the Senate. Today there is no overlap. So you're suggesting that the polarization of the country may be playing out in the Senate so that leads me to ask you, Lori, why do you remain optimistic given the extraordinary polarization of the country and the Senate that we can ever put the bipartisan genie back in the bottle? Ringhand: [] Well I'll tell you why I'm somewhat optimistic and then I want to circle back to a point that Adam just made.
I'm somewhat optimistic because remember Bork led to Kennedy. When we talk about Bork as the trigger for a new process, the thing that happened immediately after Bork was rejected was Kennedy, a consensus nominee who became a quite idiosyncratic justice was chosen as the new nominee for that seat by President Reagan.
And he was confirmed by a Senate held by the Democrats with close to or a unanimous vote. So we are capable of learning things and we are capable of cycling through these processes even though they certainly extract costs as we do it. And even though I think there undoubtedly are better processes that we could get to and perhaps even agree on at some point in our future. So that's the sort of let's call it tempered optimism. Even Bork led to a different type of process in that immediate aftermath.
The thing I wanted to circle back to that Adam mentioned when talking about the public's perception of the court as being much more embroiled in more issues. It's a really fascinating point and I think it's worth teasing out a couple of different phenomena that are contributing to that. The words that Adam said that struck me were the "as seen by the public" because of course the Senate- I'm sorry the Court has always been right in the middle of the most hotly contested political issues of the day.
It was true- it was true- President Grant for example vowed to stack the court with justices who would overturn the then recent legal tender cases. FDR obviously wanted to stack the court to ensure that the Justices would start striking down his New Deal legislation.
The example used by Scalia, Dred Scott, of course that case in the eighteen hundreds before the Civil War- they thought they were solving the problem. So the Justices were always right in the thick of this.
There is simply nothing new about the court taking on the most hotly contested cases of the day. What has changed is that the range of issues and the range of people who are coming and claiming kind of a piece of the constitutional pie has expanded to a broader- a wider array of constituencies with a wider array of concerns and kind of hand in hand with the democratization of the process overall, that's meant that the controversies are no longer disputes among elites behind closed doors.
They're right here. They involve all of us and we all see them. Rosen: [] Very important point. So Adam given the fact as we've been discussing in particular this last point Lori makes about the democratization of the confirmation process and the breadth of constituents that are involved, what's the optimistic scenario?
In the next 50 years, sketch out a confirmation process you could imagine where a nominee nominated by a democratic president gets Republican votes or vice versa. White: [] That's imponderable. First Of all I never said that I was as optimistic as she is.
White: [] I am sort of optimistic. I think- first of all if a trend can't continue forever it won't. Right now the trend line is for these things to become ever more hotly contested. And there is- there is at some point there has to be a breaking point in all this.
I don't know what it is. I'm sure it will get worse before it gets much better. I do think that one of the things we need to keep in mind again, keeping in mind that the confirmation process tracks the structural questions that surround- the structural, constitutional questions around it, you have this parallel debate about term limits for Justices. I don't see that happening in the near future but I wouldn't say that it won't happen in the long run. As justices live longer and longer, if there is a movement to reform the Court, it would require a constitutional amendment to shorten or to limit the tenure of a Justice, that might help diffuse things That's a long range thought.
I would say that one of the reasons why I'm optimistic- one of the more optimistic aspects of the current situation that I want to remind us of is that as bad and poisonous as the process now seems and often is- and I do think that given the political environment we're in right now, I think the Kavanaugh hearing although it's rather quiet as he does his Senate visits, I think it's going to be astonishingly heated and poisonous as we get through September.
I think it's important to shine a light on the good things that happen right now. And I like to remind people that at the confirmation hearing the senators are going to ask questions about the court and the Constitution, about precedents.
They're even going to ask sort of metaphysical questions about the nature of precedent itself. And so in the midst of all the bad things that are happening we actually do see great things happening. One moment where the country as a whole and the senators and the nominee pause to reflect upon and debate and ask questions about these first principles, issues.
And as we discussed earlier in many respects what we have now in that respect what we have right now is a great improvement upon the behind the scenes process that we had a century ago where senators were free to vote for or against the nomination not just for the best of reasons but for the absolute worst of reasons.
And so even if what we have right now continues to involve a lot of personal attacks from either direction, a lot of invective, a lot of political heat, at the same time we see with each passing nomination ever more sophisticated questions about precedent, about methodology, about the work of the Court.
And in that respect even as things get better they also get worse- sorry even as things get worse in the most obvious respects they also get much better from nomination to nomination in subtle respects. Rosen: [] Wonderful note of optimism and you are- you persuasively argue that the post Bork hearings have indeed illuminated the judicial philosophy of the nominees for those who are paying attention and I want listeners as the Kavanaugh hearings begin to pay close attention to the hearings and to learn about the judicial philosophy of the nominee from the questions, cutting through the political noise and always focusing on questions of constitutional methodology and interpretation.
Lori the last word is to you in this very rich and illuminating historical conversation. What notes for optimism do you see both in the current democratized process and the process over the coming decades? Ringhand: [] Yeah well I'll borrow a quote from Professor now Dean Heather Gerken talking about a different type of election law. She coined the term that one of the issues that we frequently face when trying to figure out how to do things better is the here to there problem.
There can be agreement perhaps on something like 18 year term limits whether required or voluntary on the part of the Justices. There can be agreement about better processes and better ways of doing things. The problem is getting from where we are to where we want to be, the here to there problem. And with the current confirmations process the here to there problem manifests as neither side feels like it can unilaterally disarm.
So we have kind of these no holds barred fights. And as I said earlier I think that is cyclical. I think it's a lot of things happening at this particular moment in time with this particular seat on this particular court.
So it's not an inevitable trajectory toward more and more hostility. But I think what we're going to see and here is my optimist- my optimistic prediction. I think what we're going to see in the aftermath of this current fight may be some groping toward agreement about the role of the court, the possibility that term limits might be something we want to move toward to take some of the heat off the confirmation process regardless of the you know the age of the justices and whether they're living longer or not the current process just puts so much pressure on the politics of retirement, the politics of the nominations and taking some of that pressure out of the system I think would generate a better process and a more palatable court.
Rosen: [] Thank you so much Lori Ringhand and Adam White for a illuminating deep conversation. You have provided us with historical context. You have taught us that our current vexations are not unprecedented and you have given us grounds for modified rapture, modified optimism that things might improve in future.
Senator [D] Colorado. Mazie Hirono U. Senator Class 1 [D] Hawaii. John Neely Kennedy U. Senator [R] Louisiana. Amy Klobuchar U. Senator Class 1 [D] Minnesota. Mike Lee U. Senator Class 3 [R] Utah. Bob Menendez U. Senator Class 1 [D] New Jersey. Alex Padilla U. Senator [D] California. Zahid Quraishi Magistrate U.
Regina Rodriguez Attorney. Thom Tillis U. When the President nominates a candidate, the nomination is sent to the Senate Judiciary Committee for consideration. The Senate Judiciary Committee holds a hearing on the nominee.
The Committee usually takes a month to collect and receive all necessary records, from the FBI and other sources, about the nominee and for the nominee to be prepared for the hearings.
During the hearings, witnesses, both supporting and opposing the nomination, present their views. Senators question the nominee on his or her qualifications, judgment, and philosophy. The Judiciary Committee then votes on the nomination and sends its recommendation that it be confirmed, that it be rejected, or with no recommendation to the full Senate. In April , the Senate changed this rule and lowered the required votes to 51 to end debate on Supreme Court nominations this is commonly known as "the nuclear option ".
When the debate ends, the Senate votes on the nomination. A simple majority of the Senators present and voting is required for the judicial nominee to be confirmed. If there is a tie, the Vice President who also presides over the Senate casts the deciding vote. According to Henry B. Hogue in his CRS Report, Supreme Court Nominations Not Confirmed, August , there were presidential nominations to the Court between and , 36 nominations failed to win confirmation from the Senate.
The 20th Century saw six confirmation failures, and they were: John J. Haynsworth Jr.
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