One of the most important roles of the President is appointing judges to the bench, with an opening on the Supreme Court being the most important. We are set for another battle over an opening because the process lacks a set of policies and procedures.
The vast majority of Supreme Court cases are uninteresting except to the set of practitioners in that legal area. A few cases each term have broader social issues and attract the headlines. It’s those cases on abortion and marriage and gun rights that attract the most attention.
Justice Scalia took a very dogmatic approach to his view of the US Constitution. He was an originalist and textualist who believed in a static view of the Constitution. Conservatives loved this approach since it mostly aligned with their beliefs. Scalia would have been the first say that his view was not political, but a pure legal view.
He would also likely view with disdain some of the posturing coming out of Washington on how his open spot should be filled.
The Constitution grants the President the power to appoint Justices, “by and with advice and consent of the Senate.”
Scalia himself had an easy route to appointment as a Justice because the Senate opposition had focused its efforts on Rehnquist’s appointment as Chief Justice. It’s hard to fight a battle on two fronts.
The current appointment will also be about politics, and not legal theory. I’m sure the nominee will have a brilliant legal mind. He or she will likely have a short judicial record with few, if any, decisions on controversial issues. I would also guess that the nominee will not be a white male.
Leaving the Supreme Court seat open means that there are an even number of justices. Therefore, a tie is possible and impossible to reach a decision. Any governance practitioner will tell you the perils of an even numbered board.
Compliance practitioners should note that there is an insider trading case before the court. In the Salman case, the Supreme Court will try to decide if personal benefit to the insider is necessary as required in the Second Circuit’s Newman case or whether it is sufficient that there was a close family relationship as decided in this case. It would be a shame to not have a decision because of a vacancy on the bench.
Supreme Court of the United States Building, Washington, DC, as seen from the west side of 1st St NE.
CC BY SA