Senate and Judicial Appointments

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SENATE AND JUDICIAL APPOINTMENTS

The President nominates federal judges, but no person becomes a judge of a full-fledged federal court without first having been confirmed by the U.S. senate. Article II, section 2 of the Constitution stipulates that the President "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law."

This provision expressly mentions only the Supreme Court because the Constitution, in Article III, gives Congress discretion to "ordain and establish" inferior federal courts. The most important inferior courts created by Congress are the United States district courts and the United States Courts of Appeals. Judges of these "Article III courts," which possess the judicial power of the United States described in Article III of the Constitution, are nominated by the President and take office when the Senate votes to confirm the nomination. There are a few federal courts that are not Article III courts. Judges of these specialized courts (e.g., Bankruptcy Courts) are considered "inferior officers" of the United States and may be appointed, as Congress directs, by "the President alone, … the Courts of Law, or … the Heads of Departments." The more important federal judges are, however, nominated by the President and confirmed by the Senate.

The Constitution does not prescribe any particular method by which the President shall decide upon nominations, nor does the Constitution prescribe any particular method by which the Senate's advice and consent is to be delivered. In practice, District Court nominees are selected by senators who share the President's political affiliation and who represent the state in which the District Court is located. Of course, the President actually makes the nomination. Nominees for the Courts of Appeals or the Supreme Court are usually considered more carefully and personally by the President. The senate judiciary committee evaluates each nominee and holds public hearings to assess the nominee's suitability. The committee may reject a nominee by refusing to forward the nomination to the full Senate; may recommend confirmation; or may recommend rejection by the Senate. Though the Constitution does not so specify, when the entire Senate votes, a nominee who receives a favorable vote by a majority of senators present and voting is confirmed. Once confirmed, judges hold office "during good Behavior," which means until they die, resign, or are removed by impeachment and conviction.

There are no constitutional limits on the factors that the Senate may consider in rendering its advice and consent on judicial appointments. In practice, the Senate attempts to insure that judicial nominees are professionally and temperamentally qualified people of integrity but, as with any political process, questions of political ideology are often considered relevant. About one of every four nominees to the Supreme Court has failed to be confirmed. The most recent unsuccessful nominees were Robert Bork and Douglas Ginsburg, in 1987.

When the Senate is not in session the President may make a "recess appointment" to a judicial office. Such appointments, authorized under Article II, section 2 of the Constitution, expire at the end of the next session of the Senate unless the Senate confirms the nominee. The most recent recess appointee to the Supreme Court was william j. brennan, jr. ; appointed in 1956 and confirmed during the Senate's next session. john rutledge, who served as chief justice in 1795 as a recess appointee by george washington, was never confirmed and holds the dubious distinction of being the only member of the Supreme Court who served as an unconfirmed recess appointee.

Calvin R. Massey
(2000)

(see also: Bork Nomination.)