financialsense.com / GLOBAL RISK INSIGHTS / 02/17/2016
Why a historic fight over the Supreme Court is happening, why it is so unique, and what it means for the Court and its cases.
The US Constitution states in Article II, Section 2, the president “shall nominate, and by and with the advice and consent of the Senate, shall appoint…judges of the Supreme Court.” While theoretically this is an invitation for stalemate when the White House and the Senate are controlled by opposing parties, the practice has generally been that the Senate partly defers to the president while exercising a constraining power on his range of nominees.
Since 1789, 36 out of 160, or roughly a quarter, of presidential nominations to the US Supreme Court not confirmed by the Senate, involving 31 individuals as some were nominated repeatedly. Six of these 31 were later renominated and confirmed, meaning that 25 people of 151 (≈17%) nominated to the Supreme Court were never confirmed.
A major factor in a huge portion — or around 14 — of the nominees not being confirmed was partisan party politics, either because a president’s term was about to end or because the party controlling the Senate thought it would occupy the White House in the following election. Two extraordinary vacancies occurred in the 1840s, one during John Tyler’s presidency lasting almost 14 months and another bridging his presidency and that of his successor, James Polk, lasting over 27 months.
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