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PSCI-1014: U.S.

Government and Politics

Reform of the United States Supreme


Court Appointment System
Matthew Schrage
Professor Nick Goedert
29 November 2018
Table of Contents
I. Background .............................................................................................................................................. 3
The Current System of Supreme Court Nomination and Confirmation.................................................... 3
The Role of the Judiciary Committee ....................................................................................................... 3
II. Drawbacks .............................................................................................................................................. 4
Lack of Judicial Independence of the Court ............................................................................................. 4
Problems with The Judiciary Committee .................................................................................................. 6
III. Proposed Reform .................................................................................................................................. 7
Alternatives to the U.S. Model to Better Ensure Judicial Independence .................................................. 7
Alternative forms of appointment by political institutions .................................................................... 7
Appointment by a judicial council ........................................................................................................ 7
Selection through an electoral system .................................................................................................. 8
Final Proposal: The Merit Commission .................................................................................................... 8
References .................................................................................................................................................. 10

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With the appointment of Justice Brett Kavanaugh in October 2018, Americans witnessed perhaps
one of the most rancorous, politically-divisive, and publicly controversial Supreme Court nomination
battles to date. The hearings of the nominee, filled with dramatic partisan outbursts and a heavy emphasis
on political ideology, proved a testament to the heated contest between Democrats and the Republican
Senate majority. Kavanaugh’s confirmation underscores the increasing divide between America’s two
dominant parties and exposes larger concerns of the viability of the judicial appointment system as a whole.
Due to the growing prevalence of partisanship involved in the selection of Supreme Court justices seen in
recent decades, the government should reform the United States judicial appointment process to better
protect the Court’s judicial independence.

I. Background
The Current System of Supreme Court Nomination and Confirmation
Under the Article II, Section 2 of the United States Constitution, the President possesses the power
to appoint “Ambassadors, other public ministers and Consuls, Judges of the Supreme Court, and all other
Officers of the United States…” with the “advice and consent of the Senate” (“Boundless Political
Science”). Nominees must be confirmed by a Senate vote after review by the Judiciary Committee, which
provides the Senate with a recommendation of the nominee’s suitability. The U.S. Supreme Court
appointment model is best described as a “cooperative” system, in which two or more government branches
hold different roles in the nomination process and check the powers of each other. Examples of alternative
judicial selection processes around the world include electoral systems, independent judicial councils, and
other forms of appointment by two or more political institutions. Under the “cooperative” system of
Supreme Court appointment in the United States, the Senate checks the nomination power of the President
with recommendation from the Judiciary Committee.

The Role of the Judiciary Committee


The Judiciary Committee’s standard investigative procedure for Supreme Court nominations
includes three major steps: a pre-hearing questionnaire and investigations by the Federal Bureau of
Investigation (FBI) and the American Bar Association, a series of in-person hearings before the Committee,
and a final meeting to decide the Committee’s formal recommendation to report to the Senate (McMillion).
In the pre-hearing stage, the nominee responds to a detailed Judiciary Committee questionnaire, providing
biographical, professional, and financial disclosure information. The FBI conducts an in-depth investigation
into the nominee’s criminal history, providing the Committee with confidential reports related to its
investigation. The American Bar Association also assesses the nominee’s professional qualifications and
rates him or her as “well-qualified,” “qualified,” or “not qualified” (McMillion). In the hearing process,
occurring 40 days after nomination, the Committee directly questions the nominee on his or her legal

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qualifications, biographical background, and earlier actions as a public figure. Other questions may focus
on “social and political issues, the Constitution, particular court rulings, current constitutional
controversies, and judicial philosophy” (McMillion). Hearings usually last four to five days but can run
longer if the nominee is seen as controversial. Finally, the Committee meets in open session to determine
what recommendation to report to the Senate. The Committee reports its vote in one of five categories: (1)
unanimous support, (2) almost unanimous support (opposition by one), (3) some opposition, (4) almost
party-line opposition (opposition by all but one member not belonging to the President’s party), and (5)
complete party-line opposition (McMillion). The Committee also reserves the option to report no
recommendation at all, but even in the case of an unfavorable vote, the Committee usually still reports its
recommendation to allow the Senate a final decision on the nominee. In conducting hearings and
investigations for Supreme Court nominees, the Judiciary Committee plays an important role in assessing
his or her professional qualifications and political experience.

II. Drawbacks
Lack of Judicial Independence of the Court
The U.S. government’s dismissal of the concept of judicial independence, a long-standing ideal of
the judicial branch, has exposed fundamental concerns of the intrusion of partisan politics in the Supreme
Court appointment process in recent years. Judicial independence is best defined as a justice’s freedom
from party agendas, public pressures, other government branches and politicians, interest groups, and other
justices of the Court (Judicial Appointments and). Ideally, justices should judge based on legal precedent
and a fair assessment of what each case requires, without consideration of private and partisan influences.
Judicial independence also implies that the President should not consider any partisan or personal agendas
when making nominations, and that the Senate and Judiciary Committee members should not vote based
on their personal political biases. “Judicial independence is a central goal of most legal systems, and systems
of appointment are a crucial mechanism to achieve this goal. Judges who are dependent in some way on
the person who appoints them may not be relied upon to deliver neutral, high-quality decisions, and so
undermine the legitimacy of the legal system as a whole” (Judicial Appointments and). Two major
indications of the U.S. government’s succumb to partisan politics in the judicial appointment process are
the increasingly party-line voting trends of both the Senate and the Judiciary Committee seen in recent
years. The Senate confirmed Brett Kavanaugh in October 2018 with a remarkably close 50-48 vote, and
Neil Gorsuch with a 54-45 vote in March 2017; in contrast, the Senate confirmed Antonin Scalia with a
unanimous 98-0 vote in 1986, Sandra Day O’Connor with 99-0 in 1981, John Paul Stevens with 98-0 in
1975, Ruth Bader Ginsburg with 96-3 in 1993, and Stephen Breyer with 87-9 in 1994 (“Supreme Court
Nominations”). After 1994, the only nominee since Breyer to receive more than 70 votes from the Senate

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was Chief Justice John Roberts in 2005. Supreme Court confirmation votes are “falling increasingly along
party lines, a consequence of heightened partisanship on Capitol Hill” (Yarvin).
Judiciary Committee recommendation votes also show a shift towards party-line voting in recent
nominations. John Paul Stevens, Sandra Day O’Connor, Antonin Scalia, Anthony Kennedy, Ruth Bader
Ginsburg, Stephen Breyer, and David Souter all received unanimous or near unanimous support from the
Committee’s 21 members, with the latest of these nominations occurring in 1994; since 1994, none of the
nominees investigated by the Committee have received unanimous or almost unanimous support, with the
majority of votes classifying as “almost party-line opposition” or “complete party-line opposition”
(McMillion). Consistent unanimous support and near-unanimous support from the Senate and Judiciary
Committee prior to the 2000s indicated a cooperative effort from both parties, as senators and committee
members universally agreed on the nominee’s suitability regardless of whether his or her political beliefs
aligned with their own. As is evident by the voting trends seen throughout the Supreme Court appointment
process, party-line voting has replaced bipartisan cooperation in the modern Senate and Judiciary
Committee.
Other indications of the loss of judicial independence in the U.S. appointment system include the
triggering of the “nuclear option,” the influence of interest groups in the nomination process, and frequent
criticism from political scholars and Supreme Court justices themselves. To end debate on the floor, the
Senate previously required a 60-vote majority to move to a final vote on the nominee. In 2017, the
Republican Senate changed this requirement to a mere simple majority, or only 51 votes, a rule formally
known as the “nuclear option” (“Nuclear Option: Why”). This change made it substantially easier for the
majority party to end floor debate for Supreme Court nominations; Justices Neil Gorsuch (54-45) and Brett
Kavanaugh (50-48) were appointed despite intense opposition largely due to the enactment of the “nuclear
option,” as the 60-vote majority had previously required at least some degree of bipartisan support
(“Nuclear Option: Why”). Similarly, the push of organization groups like the Heritage Foundation and the
Federalist Society also played a major role in the appointment of Gorsuch and Kavanaugh, groups which
have consistently pushed for conservative judges (Yarvin). Interest groups not only have the potential to
influence senators’ votes themselves, but the President’s nomination choices are well. “The Federalist
Society in particular has flexed its muscle under Trump. Leonard Leo, the vice president of the
group…reportedly played a major role in crafting the short list of potential Supreme Court nominees to fill
Scalia’s seat” (Yarvin). Organizations like the Federalist Society continue to threaten the judicial
independence of the nomination process, while the “nuclear option” provides evidence of the increasing
politicization of the appointment process in recent years.
Many modern political figures have commented and complained of this intrusion of partisan
interests into the judicial appointment system. George Washington University political science professor

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Sarah Binder remarks that with the increasing politicization of Congress in recent decades, “it was only a
matter of time before the nominally apolitical Supreme Court followed suit” (Yarvin). Senator Patrick
Leahy, former chairman of the Judiciary Committee, complains, “This is not the Senate Judiciary
Committee that I first came to…The Senate is not simply ‘phoning in’ our vetting obligation. We are
discarding it,” a criticism which “laid bare the extreme partisanship surrounding Kavanaugh’s
confirmation” (Yarvin). The late Antonin Scalia directly commented in 2004 that he was “not happy about
the intrusion of politics into the judicial appointment system,” while in early 2016, Chief Justice Roberts
insisted that “[Justices] don’t work as Democrats or Republicans…It’s a very unfortunate impression the
public might get from the confirmation process,” noting the “sharply political, divisive hearing process”
seen in recent nominations (Noack; Liptak). Strong indications of the loss of judicial independence of the
Supreme Court nomination process include the party-line voting trends of both the Senate and Judiciary
Committee, the trigger of the “nuclear option” in 2017, and frequent criticism from political intellectuals
and leaders, posing a need for reform to the current judicial appointment system.

Problems with The Judiciary Committee


The Judiciary Committee’s hearing process places an unnecessary emphasis on political and social
issues themselves, furthering the lack of judicial independence seen in the Senate. The hearings of Justice
Brett Kavanaugh recently brought substantial public attention to this issue; CNN reporter Joan Biskupic
writes that “Kavanaugh’s partisan outbursts, suggesting he would not be a neutral arbiter…may have
reinforced public perceptions that the ideologically divided justices cast their votes based on political
allegiances” (Biskupic). While a politically divisive hearing process does not guarantee that a nominee will
act as a “political operator” if appointed, less emphasis on political-based questions would better ensure
that the Committee does not merely use the nomination hearing as a political “litmus test,” but rather bases
its evaluation more heavily on merit. An overly partisan focus can also restrict the nominee’s freedom of
opinion if appointed; asking about specific issues can “tie down” nominees’ political stances before they
are even appointed, as “A nominee might decline to answer for fear of appearing to make commitments on
issues that later could come before the Court” (McMillion). Senators of the Committee attempt to gauge
how the nominee might vote on issues of particular importance to their party and may see their reluctance
to respond as sufficient reason to vote against confirmation. Similarly, the Judiciary Committee’s ultimate
lack of power over the Senate’s confirmation vote poses a need for reform. Although the Committee plays
a significant role in appointing qualified persons to judicial office, its recommendation holds little power.
The Senate is not required to abide by the Committee’s recommendation in any capacity and can even
ignore it completely; “if there exists a majority in [Senate], nothing can be done” (Akkas). The intense
emphasis on partisan issues in nomination hearings and the Judiciary Committee recommendation’s lack
of importance in the appointment process suggest a need for an alternative model to the current system.

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III. Proposed Reform
Alternatives to the U.S. Model to Better Ensure Judicial Independence
Three potential alternative judicial selection systems aimed to better ensure judicial independence
will be discussed in this section: (1) appointment by political institutions, (2) appointment by a judicial
council, and (3) selection through an electoral system. The U.S. currently selects Supreme Court justices
through “appointment by political institutions”; however, many countries have fared well under other
methods, providing an ideal starting point for the discussion of alternative judicial models:

1) Alternative forms of appointment by political institutions. Several countries use a form of


appointment known as a “representative system,” in which two or more political institutions select
percentages of the Court. In Italy and South Korea, the constitutional court is formed by one-third
of the members appointed by the President, one-third by the legislature, and one-third by the
Supreme Court itself; this system ensures a mix of different types of professional and political
backgrounds and prevents any one institution or party from dominating (Judicial Appointments
and). Another method of appointment by political institutions known as a “cooperative system,”
the current U.S. model, in theory provides the central benefit of ensuring the appointment of “more
moderate judges, less likely to act as agents of those who appoint them, because they must have a
supermajority of support,” according to a report by the United States Institute of Peace. The mere
simple majority requirement of the current U.S. system, however, recently exacerbated by the
triggering of the “nuclear option,” negates this main benefit offered by the cooperative system.
2) Appointment by a judicial council. This option presents a promising alternative to the current U.S.
model; judicial council systems are “very popular around the world, as roughly 60% of countries
have adopted them in some form, up from 10% thirty years ago” (Judicial Appointments and). In
many forms of this appointment system, a judicial council comprised of judge and non-judge
members, typically known as a “merit commission,” nominates a candidate for formal appointment
by a political body. This system already exists on the state level in the U.S. and has been utilized
to better ensure the independence of the courts: “In many American states, concern over traditional
methods of judicial selection (either appointment by politicians or direct election by the public) led
to the adoption of ‘merit commissions’ to remove partisan politics from judicial appointments and
base selection on merit” (Ginsburg). Judicial councils have also shown success in other countries
such as France, Italy, and Brazil, which “enshrined the judicial council in their constitution…after
periods of undemocratic rule” (Ginsburg). Judicial councils “lie somewhere in between the polar
extremes of letting judges manage their own affairs and the alternative of complete political control

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of appointments…” (Judicial Appointments and), perhaps providing an ideal “middle ground” for
the U.S.
3) Selection through an electoral system. This method presents several pertinent disadvantages that
make it impractical for the selection of Supreme Court justices, as judicial election systems are
already subject to frequent public and scholarly criticism. In order to finance their campaigns,
candidates need funding from parties and interest groups, which associate them with a specific
political ideology. Candidates also cannot solely rely on their professional qualifications to win
election and must link themselves to certain political stances to attract like-minded voters. Judges
could not be prevented from advertising their stances on political issues or making “campaign
promises,” which would yield their voting freedom on the Court to a host of external party and
public loyalties; additionally, this system could allow unqualified persons to win election based on
personal wealth or name recognition (Judicial Appointments and). For these reasons, adopting a
Supreme Court election system would further polarize the Court and worsen the lack of judicial
independence of the current system, and therefore should not be adopted by the U.S.

Final Proposal: The Merit Commission


Based on the evidence presented in this section, the U.S. would best ameliorate its lack of judicial
independence through the adoption of “appointment by a judicial council,” or the “merit commission plan.”
In a report by the University of Chicago Law School, author Nuno Garoupa writes, “There is today a strong
consensus that, of all the procedures, the merit plan best insulates the judiciary from partisan political
pressure” (Garoupa). This system has fared well on the state level and could be expanded in a similar form
to the Supreme Court. In twenty-three states in the U.S. as of the 1990s, “The Merit Commission is
responsible for nominating judges exclusively in some states, and in other states, sending a set of candidates
from which the Governor chooses appointees” (Ginsburg). Similar forms of the commission system, in
which a judicial council provides an “initial list” of nominees like in the American states, are operating well
in different countries around the world, including Canada, South Africa, Ireland, Israel, New Zealand, and
the Netherlands. “Such committees are entrusted with the task of either making the actual selection of
candidates, or…providing a shortlist outside of which appointments should not be made by the executive”
(Akkas). The practical application of this model to the U.S. Supreme Court appointment system, given its
prominence at the state level and worldwide, could exist by allowing the Judiciary Committee to provide a
similar “short-list” of potential candidates from which the President may choose. Because the power of
appointment is currently “exclusively invested in the [President], the system may not be effective to control
pre-eminent political…considerations in selecting candidates for judicial office” (Akkas). Vesting this
power in the Judiciary Committee, therefore, would likely better ensure judicial independence and prevent
the President from choosing nominees for political reasons. Granting this power to the Judiciary Committee

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would also give its “recommendation” much more importance in the appointment process itself, as the
Senate could no longer disregard its role. Because this reform proposal does not require a complete overhaul
of the current system, which deems highly impractical, this simple change could greatly improve the U.S.
model without extensive reform. Additionally, the Judiciary Committee could be further reformed to play
the role of an “independent commission,” as opposed to a Senate-run committee. Compared to other
alternatives discussed in this section, “The use of an independent commission in appointing judges is the
most acceptable mechanism among commentators in the contemporary world” (Akkas). Some suggest that
the commission should consist of legal representatives and judges of lower federal courts. David Malcolm
of the University of Notre Dame Australia, for example, argues, “[The commission] should include
representatives of the higher judiciary and the independent legal profession as a means of ensuring that
judicial competence, integrity, and independence are maintained” (Malcolm). Many scholars also believe
that judges should form the majority of the commission, “so as to ensure maximum judicial independence”
and allow “broader representation, including judges of lower level courts to be included in the Council”
(Judicial Appointments and). The inclusion of independent legal representatives would also likely improve
the unnecessarily partisan-focused committee hearings of the modern Judiciary Committee and insulate the
commission from “accusations of self-dealing” (Judicial Appointments and). In conclusion, the proposal to
adopt an independent, non-Senate-affiliated commission responsible for either providing a “shortlist” to the
President or making nominations directly deems the most appropriate solution to the major drawbacks of
the modern Supreme Court appointment system. To best ensure the judicial independence of the Supreme
Court appointment process, the U.S. should adopt the model of the “merit commission,” which has shown
success on the state level and around the world.

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References

Akkas, Sarkar Ali. “Appointment of Judges: A Key Issue of Judicial Independence.” Bond Law Review,

2004, Web.

Biskupic, Joan. “Partisanship Questions Threaten to Shadow Kavanaugh on the Court.” CNN, Cable

News Network, 5 Oct. 2018, Web.

“Boundless Political Science.” Boundless Political Science, Lumen Learning, Web.

Garoupa, Nuno, and Tom Ginsburg. “The Comparative Law and Economics of Judicial Councils.”

Berkley Journal of International Law, 2009, Web.

Ginsburg, Tom, and Nuno Garoupa. “Guarding the Guardians: Judicial Councils and Judicial

Independence.” Chicago Unbound, University of Chicago Law School, 2008, Web.

Judicial Appointments and Judicial Independence. United States Institute of Peace, Jan. 2009, Web.

Liptak, Adam. “Chief Justice Defends Judicial Independence After Trump Attacks 'Obama Judge'.” The

New York Times, The New York Times, 21 Nov. 2018, Web.

Malcolm, David K. “The Independence of the Judiciary in the Asia-Pacific Region.”

ResearchOnline@ND, University of Notre Dame Australia, 2003, Web.

McMillion, Barry J. Supreme Court Appointment Process: Consideration by the Senate Judiciary

Committee. Congressional Research Service, 14 Aug. 2018, Web.

Noack, Rick. “The U.S. Supreme Court Is Highly Politicized. It Doesn't Have to Be That Way.” The

Washington Post, WP Company, 28 June 2018, Web.

“Nuclear Option: Why Trump's Supreme Court Pick Needs Only 51 Votes.” CBS News, CBS Interactive,

9 July 2018, Web.

“Supreme Court Nominations.” U.S. Senate, 6 Oct. 2018, Web.

Yarvin, Jessica, and Daniel Bush. “Is the Hyper-Partisan Supreme Court Confirmation Process 'the New

Normal'?” PBS, Public Broadcasting Service, 13 Sept. 2018, Web.

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