Who appoints judges?

New York’s Chuck Schumer is an influential senator on the question of judicial appointments. He is the all but certain next leader of senate Democrats, a lawyer and a member of the Judiciary Committee. No doubt he will be part of the inner circle that the president consults before nominating someone to replace the late Justice Antonin Scalia. Unfortunately his words on this matter have the taste of someone being especially partisan, hypocritical and slippery. 

So, who appoints federal judges? The president does, with the advice and consent of the senate. Only with the consent of the senate does a nominee become a judge. Theoretically, the president may submit a nomination on the morning of his last day in office. But the senate doesn’t sit on inauguration day and, by long established practice, presidents may withdraw as well as submit nominees, so the incoming president would have the opportunity to withdraw a nomination before the senate had even seen it. In practice, submitting a nomination that late only makes sense if the choice is a consensus between the outgoing and incoming presidents. 

So when is it too late for a president in his final year in office to submit a nomination? The answer is extremely opaque. Consideration by the senate might take only a few weeks but has been known to take over two years. Since inauguration was moved from March to January in 1933 there have been only three occasions when a president has nominated a justice in an election year: one was rapidly approved in 1940. In 1956 Eisenhower made a recess appointment which he then resubmitted after being re-elected.

In 1968, the nomination was held over until the new president was in office, but the position was not vacant. Earl Warren wished to retire as Chief Justice. Lyndon Johnson nominated Associate Justice Abe Fortas to replace him, but the nomination hit opposition in the senate. Southern Democrats objected on ideological grounds and there were bipartisan questions about his ethics. His nomination was withdrawn, so the vacancy for his seat on the court never arose and Warren stayed in office until after Nixon’s inauguration.

Today’s situation, with leading Republicans demanding Scalia’s seat should remain vacant until next year not only leaves the court down one justice, with several others getting rather old, it is also based on a blanket objection to anyone that the president may nominate rather than specific objections to a specific candidate. 

But it is no different from the position that Chuck Schumer took in 2007, when he said the senate should not accept any nomination from George W Bush except in extraordinary circumstances. This was a full year and a half before Bush’s term came to an end. Republicans, at the time, were demanding an up or down vote on any nomination. Bush, incidentally, had support for his nominations from several red-state Democrats. Every one of his judicial nominations that reached a vote was approved. The only way Democrats ever blocked one of his nominations was by filibuster or not scheduling a vote.

Schumer now says that he only meant Democrats should vote against any Bush nominee, not that they should deny them a vote. But he voted to sustain a filibuster against Justice Alito, along with Barack Obama and Hillary Clinton. Some flip-flopping by both sides, it seems.

Quentin Langley is a Senior Lecturer in Marketing at the University of Bedfordshire Business School as well as a freelance columnist published in the UK and all parts of the US. He blogs on social media and crisis communications at brandjacknews.com