Lesson Objectives:- Judicial appointments and nominations
- The Senate’s role
There are 874 total federal judge positions and they are all to be appointed by the president with the advice and consent of the Senate. At any given time, there are vacancies. Judges are appointed for life and are only removed by resignation, retirement, death, or the rare occasion of impeachment.
The president takes suggestions from multiple sources including the Department of Justice, senators, other judges, and people who themselves are interested, just to name a few. The president then submits a nomination to the Senate who either confirms or rejects it.
At one time, there was a tradition where a senator from the president's party nominated federal district judges for their state. President Carter changed that tradition to an independent commission starting the nomination process. When President Reagan stepped into office, he changed that again and took control of the entire nomination process.
Today, there is still a role for the Senate in appointing federal judges and that is Senatorial Courtesy, a tradition allowing a senator to veto a district court judicial appointment in his or her state.
It may seem needless to say, but most nominations come from the president's political party. It is one way a president can have a huge political effect on the country long after his term in office. The pattern can shift greatly and it has throughout history. During the terms of Presidents Reagan and George H. W. Bush, they ended up appointing around three-fourths of all federal court judge positions. Under President Clinton, he appointed 371 federal judges and that created another huge shift.
When President George W. Bush stepped into office, he appointed 322 federal judges, bringing the balance back in favor of the Republicans. He also filled two Supreme Court vacancies. This was particularly pivotal because those two justices shifted the Supreme Court ideologically towards the right.
President Obama also had the opportunity to appoint two Supreme Court justices, but he was replacing justices that were reliably from the left so there was little overall effect on the ideological balance of the Court.
It gets political in the Senate arena as well. They do not have to confirm a nominee and in fact, almost 20% of presidential nominations to the Supreme Court have either been rejected or the Senate refused to act on the nomination.
One reason they may refuse to act is when an election is coming up and the Senate feels strongly that it is best to allow the new president a chance to make their own nomination.
The Senate holds confirmation hearings that can be brutal toward the nominee. If the president is in their party, it can run smoothly, but if the opposition party is in charge of the Senate, the president will have a tough time getting a nomination through.
The battles can escalate into other political areas as well. If the opposition party controls Congress, they can try to block every other action taken by the president, filibusters can be threatened, and the entire filibuster process itself can come under attack in what is known as the "nuclear option."