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Appointing a New Supreme Court Justice in an Election Year

The unexpected passing of Justice Antonin Scalia reminds us of the fascinating process for adding a jurist to the U.S. Supreme Court, especially interesting in this election year.

The U.S. Constitution clearly states that, “The President shall nominate, and by and with the advice and consent of the Senate, shall appoint … judges of the Supreme Court.” To clarify, the president can only nominate. This is clearly stated by the framers whose words Justice Scalia so often relied upon, along with the Federalists Papers he referenced for additional insights.

Role of U.S. Senate in Supreme Court Appointments

The Constitution says that in order to appoint a judge, the president needs the consent of the Senate. Curiously, the Constitution is silent on whether the Senate must consent. And it doesn’t prohibit the Senate from withholding consent for partisan political reasons or denying consent based on a “yay or nay” vote. In fact, they are not bound to act at all on the nomination.

Learning Opportunity

We think this moment in history, with all the country’s struggles, is a perfect time to revisit the Constitution and its inherent wisdom. For example, the application and separation of powers ensures a system of checks and balances. While not perfect, it’s a strong framework that supports the U.S. legal system, leads to fairness for most, and can change with the times. This lesson of allowing various viewpoints to be part of the bigger picture applies to people in all walks of life, of all ages.

It’ll be interesting to see what the next few months bring, and we look forward to learning about the next jurist as he/she takes a seat on the Supreme Court.