Nomination and Senate Confirmation
Chapter Ninety-Nine
Syllabus topic 7, "Comparative Study of Judiciary in India, UK, USA and Switzerland."
Pages 441 to 444 of 676
In one line
The President nominates a judge and the Senate confirms by a simple majority, and because the appointment is for life the confirmation is a political contest.
In the wording a student can write in an exam: under Article II section 2 the President has power, by and with the advice and consent of the Senate, to appoint judges of the Supreme Court, and by Article III section 1 they hold office during good behaviour, so that the appointing decision is taken once and its effects last for decades.
The provisions
Article II section 2 clause 2. The President shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, 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.
Two thirds is required for treaties and not for appointments, so a simple majority of the Senate confirms a judge.
Article III section 1. Judges of the supreme and inferior courts hold their offices during good behaviour, and their compensation shall not be diminished during their continuance in office. There is no retiring age.
Article I section 5. Each House may determine the rules of its proceedings, which is the constitutional basis of the filibuster and of its abolition.
The process
Nomination. The President selects, usually after consultation with advisers and, for lower courts, with the senators of the State concerned under the convention of senatorial courtesy.
Committee. The Senate Judiciary Committee holds hearings, which since 1925 have involved the nominee appearing in person, and reports.
Floor. The Senate debates and votes. A simple majority confirms.
The filibuster. Until 2013 a nomination could be blocked unless sixty senators voted for cloture. In 2013 the Senate abolished the filibuster for lower court and executive nominations, and in 2017 for Supreme Court nominations, in each case by a simple majority using its power under Article I section 5. The consequence is that a President whose party holds the Senate can confirm without any support from the other party.
Why the process is political
Three features combine.
Life tenure. A Justice appointed at fifty may serve thirty five years. The decision is therefore about the next generation and not about the next term.
Judicial review. Because the Court decides the most contested questions in American public life, and because Article V makes amendment nearly impossible, the composition of the Court is the constitutional politics of the country.
Nomination and Senate Confirmation
The simple majority. After 2017 the minority cannot block, so confirmation depends on the Senate's party composition and not on cross-party acceptability.
The result is that a vacancy is treated as an election issue, that nominations have been refused a hearing, as in 2016, and that nominees decline to answer questions about how they would decide.
A worked example
A vacancy arises in the last year of a presidential term.
The text. Article II section 2 gives the President the power to nominate and the Senate the power to advise and consent. Neither is subject to any time condition.
The practice. In 2016 the Senate declined to hold hearings on a nomination made in February of an election year, on the stated ground that the next President should fill the seat. In 2020 the Senate confirmed a nomination made in September of an election year.
The constitutional point. Nothing in the text compels the Senate to act. Advice and consent is a power, not a duty, and there is no remedy for inaction.
The comparison. In India the government's inaction on a reiterated collegium recommendation is the same problem in a different form: a body with a constitutional role declining to exercise it, and no mechanism to compel it.
The cases
Facts. Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), arose out of a commission signed and sealed for a justice of the peace but not delivered by the incoming administration.
Held, by Marshall CJ. Marbury had a vested legal right to the commission, the appointment being complete on signature and sealing; a remedy lay for its withholding; but not in that court, section 13 of the Judiciary Act being repugnant to Article III.
Why it matters here. It decides when an appointment is complete, which is the question the case actually turned on before the famous part, and it arose out of a change of administration in exactly the circumstances that make confirmation political.
Facts. United States v. Nixon, 418 U.S. 683 (1974), concerned a subpoena for tapes of Presidential conversations and a claim of absolute executive privilege.
Held, unanimously. No absolute, unqualified Presidential privilege of immunity from judicial process can be sustained; a qualified privilege yielded to the demonstrated need for evidence in a criminal trial.
Why it matters here. It was decided unanimously by a Court three of whose members had been appointed by the President against whom it ruled, which is the strongest available evidence that life tenure produces independence from the appointing power.
Distinctions
| United States | India | |
|---|---|---|
| Who nominates | The President | The collegium |
| Who confirms | The Senate, simple majority | Nobody |
| Tenure | During good behaviour, no retiring age | Until 65 (Supreme Court), 62 (High Court) |
| Political scrutiny | Public hearings since 1925 | None |
| Minority veto | None since 2017 | Not applicable |
| Risk | Politicisation | Opacity |
Nomination and Senate Confirmation
What beginners get wrong
"Confirmation needs two thirds." Two thirds is for treaties. A judge is confirmed by a simple majority.
"The filibuster is in the Constitution." It is a Senate rule under Article I section 5 and was abolished for judicial nominations in 2013 and 2017.
"American judges retire at seventy." Article III provides tenure during good behaviour and no retiring age. Retirement is voluntary, and senior status is a statutory arrangement.
Limits and criticism
Life tenure plus political confirmation produces strategic retirement, since a Justice may time a departure to a friendly administration.
Hearings have become uninformative, because a nominee who answers questions about future cases is criticised for prejudgment and one who does not is criticised for evasion.
There is no remedy for a Senate that will not act, which is the same structural gap as the Indian government's delay on collegium recommendations.
Quick revision
- Article II section 2: the President nominates and, by and with the advice and consent of the Senate, appoints judges of the Supreme Court.
- Two thirds is for treaties; a simple majority confirms a judge.
- Article III section 1: tenure during good behaviour, no retiring age, salary not to be diminished.
- Article I section 5 is the basis of the filibuster; abolished for lower courts in 2013 and for the Supreme Court in 2017.
- The process is political because of life tenure, judicial review and a closed amending procedure.
- Advice and consent is a power and not a duty; there is no remedy for Senate inaction.
- United States v. Nixon, 418 U.S. 683 (1974), decided unanimously by a Court partly appointed by the President concerned.
Test yourself
1. Set out the American appointment process. Under Article II section 2 the President nominates a candidate and, by and with the advice and consent of the Senate, appoints. The Senate Judiciary Committee holds hearings at which the nominee appears, and reports; the Senate then votes, a simple majority sufficing, two thirds being required only for treaties. Since the abolition of the filibuster for judicial nominations in 2013 and 2017, no minority veto exists.
2. Why is the process so political? Because Article III section 1 gives tenure during good behaviour with no retiring age, so a single appointment lasts for decades; because judicial review means the Court decides the most contested questions in American public life; and because Article V makes formal amendment nearly impossible, so changing the Court's composition is the principal route to constitutional change. A simple-majority confirmation then makes the outcome depend on the Senate's party composition.
3. Is the Senate obliged to act on a nomination? No. Advice and consent is a power and not a duty, and the Constitution imposes no time limit. In 2016 the Senate declined to hold hearings on a nomination made in February of an election year; in 2020 it confirmed one made in September of an election year. There is no remedy for inaction, which is structurally the same gap as the Indian government's delay on a reiterated collegium recommendation.
Nomination and Senate Confirmation
4. What evidence is there that life tenure produces independence? United States v. Nixon, 418 U.S. 683 (1974), in which a unanimous Court, three of whose members had been appointed by the President concerned, held that no absolute Presidential privilege of immunity from judicial process could be sustained and required the tapes to be produced. Tenure during good behaviour under Article III section 1, with salary protection, removes any lever the appointing power retains.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.