Ever since the birth of the nation, Presidents have long had the duty to appoint justices to the nation’s highest appellate court in the federal judiciary; the Supreme Court. These appointments are infrequent as the justice can serve for as long as they deem necessary or as long as they are fit. Vacancies only occur once or twice in a presidential term, if at all. The President is also assisted by the Senate Judiciary Committee as final confirmation rests in the Senate’s hands. Presidents can make recess appointments without the Senate but the appointment is only temporary and it often costs political capital to do it. Consequently, it hasn’t been done since the 1950’s.
Currently the court roster consists of:
- Supreme Court Chief Justice John Roberts, age 56. Appointed by George W. Bush in 2005
- Justice Samuel Alito, age 61. Appointed by George W. Bush in 2006
- Justice Antonin Scalia, age 75. Appointed by Ronald Reagan in 1986
- Justice Anthony Kennedy, age 75. Appointed by Ronald Reagan in 1988
- Justice Clarence Thomas, age 63. Appointed by George H.W. Bush in 1991
- Justice Ruth Bader Ginsburg. age 78. Appointed by Bill Clinton in 1993
- Justice Stephen Breyer, age 73. Appointed by Bill Clinton in 1994
- Justice Sonia Sotomayor, age 57. Appointed by Barack Obama in 2009
- Justice Elana Kagen, age 51. Appointed by Barack Obama in 2010
Theoretically Supreme Court appointments are supposed to be non-partisan but that hasn’t actually been the case for several decades. So selection of justices has led to a court that reflects the political leanings of whichever President or political party was in office at the time of the appointment. The current court has four justices appointed by Democratic presidents and five appointed by Republican presidents.
This make up can lead to controversial decisions such as Citizens United v. Federal Election Commission which essentially gives corporations personhood and allows for unlimited corporate donations to political candidates. Citizens United continues to be a bone of contention and will likely face some kind of reversal challenge eventually.
With at least four justices approaching retirement age (one conservative, two liberal, and one generally perceived to be neutral) the next President will likely determine the political leaning of the court.
The administration is also charged with filling positions in the lower appellate courts. Currently one judicial seat in eight is vacant with fewer than half of President Obama’s selections being confirmed. There are more vacancies during President Obama’s tenure than ever before; at least since Nixon (there were also 40% fewer positions then). Republicans, unsurprisingly, have been blocking or delaying these appointments for political reasons. Why does this matter? Because several issues are going to eventually wind up in the courts including immigration, gay marriage, health care reform, the Voting Rights Act, and carbon emission regulation just to name a few. Republicans are grinding the system to a halt by not filling these vacancies. Presumably they are doing so until they can get back into power and appoint judges sympathetic to their perspectives.
The President has even been unable to make recess appointments because the Senate Republicans have threatened to keep the Senate in session during the recess; a parlour trick accomplished by having a local member open the session each day even though the rest of the body will have gone to their home districts.
Tinkering with the judiciary has happened before. During the Bush administration there was a mass dismissal of several US Attorneys in 2006. It was argued that the dismissals were arbitrary but there were allegations that the attorneys were fired for political advantage either for failure to investigate Democratic politicians or to impede investigations into Republican politicians. The fall-out from this controversy resulted in the resignation of nine members of the Department of Justice including US Attorney General Alberto Gonzales.
This particular strategy that Republicans are engaging in is not beneficial to the American public. The business of the people shouldn’t be delayed for political partisanship. Justice Kennedy recently noted that the rule of law itself is “imperiled” if we are willing to sacrifice judicial excellence to partisan politics. This form of judicial ‘restraint’ is unhealthy for a democracy.
(Editor’s note: An earlier version of this article incorrectly listed Justice Anthony Kennedy’s age as 95 instead of 75. We regret the error.)