Published on Mar 23, 2017

With the confirmation hearing for Judge Neal Gorsuch taking place this week, President Donald J. Trump’s nominee to replace Justice Antonin Scalia (DOD Feb 13, 2016), the future of the United States Supreme Court is currently in the news.

President Trump and the Court’s Future

Judge Gorsuch will appear before the Senate Judiciary Committee for questioning prior to their recommendations to the Senate, which will then vote to approve or reject the nominee. Judge Gorsuch’s nomination could be the first of several nominations during President Trump’s tenure. There are three justices who might need to be replaced due to illness, resignation or death: Justice Ruth Bader Ginsburg (83), Justice Anthony Kennedy (80), and Justice Stephen Breyer (78).

Judge Gorsuch will be questioned on a number of topics particularly questions to determine how similar his judicial philosophy is to Justice Scalia. Justice Scalia was a champion of originalism, the theory of constitutional interpretation that seeks to apply the understanding of the Constitution at the time it was written. Some legal scholars created a “Scalia Index Score” and decided that Judge Gorsuch is the most Scalia-like of the nominees most often mentioned to replace him.

It is common practice for Presidents to select nominees who are members of their party, and two of the oldest (Justices Ginsberg and Breyer) are liberals and Democrats. Should either or both step down or be unable to continue, President Trump could replace them with conservatives, tipping the balance of the Court towards Republicans.

A Look at the Past

The United States Supreme Court, established in 1789 and created under Article III of the United States Constitution, is the highest federal court of the United States. It has authority over all federal courts and appellate jurisdiction over state court cases involving issues of federal law. Since the Judiciary Act of 1869, the court consists of a Chief Justice and eight Associate Justices although Congress can pass a law to change the number of Associate Justices.

The Justices appointed to the Court serve for life tenures on “good behavior.” No Justice has ever left the court except by death, resignation, or retirement (although Congress tried unsuccessfully to impeach one Justice in 1804). When a vacancy occurs, the President nominates a candidate to fill the spot who, according to the Advice and Consent Clause of Article II of the Constitution, must be confirmed by the United States Senate prior to joining the court.

How Many Presidents Have Nominated at Least One Justice?

All but four Presidents (William Henry Harrison, Zachary Taylor, Andrew Johnson, and Jimmy Carter) have selected a member of the Court. George Washington picked the most (11), followed by FDR (9) and William Howard Taft (6). Jimmy Carter was the only full-term President not to have the opportunity to select a justice. Shortly after he left office, Justice Stewart resigned, to be replaced by Sandra Day O’Connor during the first term of President Ronald Reagan. Like many Justices, Justice Stewart apparently timed his resignation so that a president of his own party could select his replacement.

How Many Nominees Are Rejected By the Senate?

A nomination for the Supreme Court is still subject to a “cloture” vote that formally ends the Senate’s debate over the candidate. Sixty yes-votes are needed to end the debate. If 60 Senators vote to end the debate, the nominee is confirmed by a simple majority vote of the full Senate.  However, due to concerns over the success of Gorsuch’s appointment, there is movement among the members of the Senate to change that rule.

Prior to the vote, the candidate appears before the Senate Judiciary Committee for extensive questioning, which will make a recommendation to the Senate. Rejections by the Senate were common in the 19th century, but rare in the 20th when 12 were rejected, 9 forced to withdraw, and 8 postponed.

Fast Fact: Who Can Be a Justice?

Justices are not required to be judges, or even lawyers. While it has become common in recent years to nominate only distinguished jurists or legal scholars, in the past politicians with no judicial experience were often selected. For example, Earl Warren, appointed Chief Justice by President Dwight D. Eisenhower in 1953, was never a judge and had most recently served as Governor of California for three terms.

What is the Future of the U.S. Supreme Court?

While the appointment of Neal Gorsuch (if confirmed) to the U.S. Supreme Court may not make an immediate noticeable change, it is possible that together with future appointments under President Trump it could change the direction of the Court dramatically.