The Constitution Is Vague Relating To The Selection Of New SCOTUS Justices

By Sal Bommarito

The Supreme Court confrontation between liberals and conservatives is in high gear and could have very serious implications in the November presidential election.

The best way to determine which political party is on higher ground is to review what the Constitution specifically tells us about the selection of new justices.

The document says “. . . [the president] shall nominate, and by and with the advice and consent of the Senate shall appoint . . . judges of the Supreme Court . . .” The Constitution does not provide any guidelines relating this process. The definition of “advise and consent” is “a power of the United States Senate to be consulted and approve . . . appointments made by the president . . . to public positions, including . . . federal judges . . .”

The Constitution does not mandate that the court must have nine justices, there is no such thing as the “rule of nine.” Congress determines the size of the court. In this regard, the Judiciary Act of 1869 requires a quorum of six justices, and  the Court can have no more than nine justices in total.

The obvious reason to have an odd number of justices is that it decreases the chances of a tie. But, this is still a problem from time to time when a justice recuses his or herself. Justice Kagan did so  recently in a crucial affirmative action case.

The most important political consideration is the composition of the court, liberal versus conservative. Until Antonin Scalia’s death, the Court was generally tilted conservative with Justice Kennedy frequently serving as the swing vote. The direction of the Court will be greatly influenced by the next appointee.

If President Obama nominates a liberal judge, and the Senate  approves him or her (very unlikely), it would drastically impact several huge controversies affiliated to abortion, immigration, health care, racial quotas in universities, etc. A conservative appointee by a Republican president after the next election would keep the Court with the balance it had before Scalia passed away.

It should come as no surprise that Obama and Democrats are pushing to fill the Scalia vacancy immediately, and Republicans in the Senate are  uninterested in fielding any nominees by Obama.

Liberals and conservatives disagree vehemently about the responsibilities of the executive and legislative branches of the government regarding the current vacancy on the Court. The former says the president must fill the Court vacancy now (this is not a constitutional mandate). The latter says that the president ought to yield the job of filling the vacancy to the new president (there is no legal requirement to pass the nomination to the next president in the last year of the current president’s term in office).

The only facts are that a president must nominate and the Senate must advise and consent. This means that either the president or the Senate has the ability to delay without violating any laws. True, the efficiency of the Court could be impacted by this eventuality because it’s presently broken down four liberal and four conservative. But, there is no constitutional requirement to fill a vacant hastily.

A non-partisan assessment of the situation would favor conservatives. But, a delay by this group, which is well within legal bounds could be politically dangerous if deemed to be obstructionist. Of course, if Hillary Clinton wins the presidency, the Senate will see only liberal nominees.


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