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What does the Constitution say about picking Supreme Court justices? Not much

With the death of Antonin Scalia, you will hear a great deal of bunk asserted about what the Constitution does and doesn’t require to replace him.

There have been contentious battles over Supreme Court vacancies before. But, still, the current situation created by the death of Justice Antonin Scalia and the announced intention of Senate Republicans to refuse to confirm any nominee to replace him until after the next election takes the country into uncharted areas.

In navigating that, a great deal of bunk will be asserted about what the U.S. Constitution does and doesn’t require. You will hear all kinds of principles being asserted as if they are deeply rooted in our constitutional system. To the extent that such a claim means that the Constitution requires that this or that be done or not done, you should be aware that the actual text of the Constitution provides much less guidance than you might think. This piece is designed to convey every single thing the actual text of the Constitution, including all the amendments, says on the subject of how Supreme Court vacancies are handled. And the short summary is: Not Much.

The Constitution, for starters, does not require a nine-justice Supreme Court. It is silent on the size of the court, which has been left to Congress to decide. Over history the court has been as small as six and as large as 10.

The Constitution, in its preamble, says that one of the purposes for which the document was created was to “establish Justice,” which might be taken as a reference to the need for a federal judiciary.

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The Supreme Court is the only federal judicial body established by the Constitution itself, specifically in Article III, which begins:

“The judicial Power of the United States, shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour…”

Bad ‘Behaviour’

You might note, in the above paragraph, that the Constitution does not specifically state that a Supreme Court justice is appointed for life. Rather, it says the justices “shall hold their Offices during good Behaviour,” which has always been understood to mean until he or she died, retired or was impeached for bad “Behaviour.”

Unlike the president, who can be removed only if convicted of “high crimes and misdemeanors,” a justice can theoretically be removed for anything short of “good Behaviour,” which is not defined at all in the document and would seem to leave room for any amount of mischief.

But this hasn’t occurred. Only one justice in history, Associate Justice Samuel Chase in 1805, has ever been impeached, which is the first step in the removal process, the one that occurs in the House. But he was not convicted at his Senate trial and was not removed.

In the aftermath of the landmark 1954 Brown vs. the School Board ruling, ordering the integration of public schools, there was a brief campaign to impeach Chief Justice Earl Warren, but it amounted to little more than “Impeach Earl Warren” billboards appearing in the South.

Sen. Ted Cruz, who clerked at the Supreme Court and is now running for president, has actually suggested creating another way to get rid of unpopular Supreme Court justices.

The mechanism he proposes would subject every justice to what he calls a “retention election” every eight years. (We don’t have this in Minnesota. Our judges, including state Supreme Court justices, come up for reelection regularly, on a non-partisan basis, in which challengers can run against them. But retention elections — similar to what Cruz is advocating — for state judges has been a growing trend around the country. These allow the voters to say yes or no to another term for their judges without having another candidate on the ballot.)

Under the Cruz proposal, U.S. Supreme Court retention elections would be held as part of the quadrennial presidential election and every justice would come up for retention or rejection once every eight years. (So basically, about half of the justice would be on the ballot every presidential election year.)

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Any justice who was on the ballot in a given quadrennium would have to get a “yes” vote for retention from both a majority of those voting in the country and a majority in at least 25 of the 50 states. A justice who failed that ballot test would be immediately removed and could never be reappointed.

This is thinking pretty far outside the box, but since, as Cruz acknowledges, it would require a U.S. Constitutional amendment, and since that requires a two-thirds majority in each house of Congress followed by ratification by three-fourths of the states, it probably won’t be happening anytime soon.  

Appointments and confirmations

As to the most immediate question raised by the death of Justice Scalia: How does a new justice get appointed and confirmed? The Constitution provides only a little guidance:

Article II, Section 2: “[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint…Judges of the Supreme Court.”

That’s the only thing the Constitution says. It doesn’t say, for example, that the Senate has to hold hearings to question the nominee. It doesn’t establish any threshold for what constitutes a quorum or even whether a justice can be confirmed by an absolute majority or a majority of those voting or even a supermajority, which the Constitution does require for other purposes, such as the two-thirds majority that is necessary to convict a president of an impeachable offense.

The Constitution also offers no standard for senators to apply in deciding whether to ratify a presidential nominee. Just to make this clear because it seems that the path ahead might come to this: Senators do not have to claim that a nominee is a bad person or an incompetent lawyer. (In fact, there’s nothing in the Constitution that says a justice has to be a lawyer.)

If a senator wants to vote no just because they think the nominee will not vote on issues of constitutionality the way the senator would like him to vote, the senator is fully entitled and allowed (at least by the Constitution) to vote against confirmation.

For much of our history there has been at least an implication that what I just wrote above is not true, that a Supreme Court confirmation process is limited to issues of character or maybe legal acumen. But during recent years, as more and more confirmation votes have broken down sharply on party lines, it has been harder and harder to preserve that fiction.

So, if the Republican majority was to unanimously vote to reject any Obama nominee simply on the basis that the nominator was President Obama and that the Republican senators wanted to wait for a Republican president to be in office, they would not be violating any specific constitutional language. It could also lead to situations in which vacancies might remain vacant for a very long time.

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There does exist, constitutionally, a way for a president to sneak a justice onto the court for a brief time. Article II (the article establishing the powers of the president, including the power to make nominations and appointments) does say that if the Senate is in recess, “the President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”

If the Senate goes into recess, the president actually could appoint a justice, on a temporary basis, without the need to have the person confirmed by the Senate, but the appointment would expire at the end of the next session of Congress. The Senate itself decides and controls whether it wants an actual recess to occur, and if it doesn’t want such a recess to occur, it can arrange for a small numbers of senators to always be around and pretend that the Senate is in session. This can be done, and might be done, if the Senate believed that the president planned to use his recess-appointment power to appoint a temporary justice.

The Constitution doesn’t specifically create the office of chief justice of the Supreme Court, nor shed any light on how such a person might be chosen, but it does imply the necessity for such an office to exist because — in its only reference to a chiefship — the Constitution says that the chief justice of the Supreme Court is to preside over the Senate trial of a president who is up on impeachment charges.