The recent allegations of sexual assault and misconduct made against Supreme Court nominee Brett Kavanaugh raise several important questions that should be considered by senators voting on his confirmation—and the citizens who vote for those senators.
What are the qualifications for Supreme Court justice?
There is no citizenship, residency, age, experience or educational requirement for any federal judge. The Constitution simply states that the President “shall nominate, and by and with the advice and consent of the Senate, shall appoint...judges of the Supreme Court.” In practice, however, every Supreme Court justice has been a U.S. citizen and lawyer, and most recent nominees have served as judges in the lower federal courts.
The president is free to nominate whomever he or she thinks is best for the job. The Senate has no role in selecting nominees, although presidents often consult leaders of the Senate Judiciary Committee to avoid a doomed nomination. Political allies also may influence judicial nominations. According to the White House, Brett Kavanaugh was selected from a shortlist developed “with input from respected conservative leaders.”
According to the White House, Brett Kavanaugh was selected from a shortlist developed “with input from respected conservative leaders.”
Presidents generally profess fair-mindedness as an essential judicial quality but have also been influenced by the religion, race, gender and even regional affiliation of nominees. Ultimately, political considerations and judicial philosophy determine who is nominated, as the indispensable requirement is the support of the president and a majority of votes in the U.S. Senate.
What background checks are conducted before and after a nominee is selected?
Informal vetting begins as soon as a president is elected and he or she forms a list of potential Supreme Court nominees. Preliminary internet research can reveal obvious problems such as public scandals, offensive writings, unpalatable ideologies or embarrassing associations. Several months after President Trump’s first nominee, Neil M. Gorsuch, was appointed to the Court, the White House released a list of potential nominees for future vacancies. The early release of this shortlist gave the press and public an opportunity to independently investigate potential nominees.
The Federal Bureau of Investigation also investigates the personal and financial backgrounds of judicial nominees. The F.B.I. database includes arrest and fingerprint records and will reveal past criminal prosecutions and unusual financial dealings, but, as current events demonstrate, a preliminary investigation will not disclose all potential problems for a nominee. According to the Administrative Office of the U.S. Courts, “informal criteria” are used by the Department of Justice to determine the qualifications of judicial nominees. The American Bar Association’s rating of judicial nominees is based solely upon professional qualifications and judicial temperament.
As current events demonstrate, a preliminary investigation will not disclose all potential problems for a nominee.
The Senate Judiciary Committee questionnaire requires nominees to list financial holdings and potential conflicts of interest, but it does not ask the type of open-ended questions that might reveal previously private improprieties and that are asked by individual senators who recommend nominees for lower federal court positions. For example, Senator Ted Cruz, a Republican from Texas, asks judicial hopefuls, “Have you ever transmitted an electronic communication that could cause embarrassment to yourself or to the senators?” In her district court application, Senator Dianne Feinstein, a Democrat from California, asks:
Are you aware of any individual(s) or group(s) who may oppose your appointment? If so, identify the potential opponents and provide any needed explanation.
Describe any aspects of your personal, business or professional conduct or background which may reflect positively and/or adversely on you or the President, or which should be disclosed to the President in connection with your application for appointment to the office of United States District Court Judge.
Law professor Anita Hill, who testified in 1991 at the confirmation hearings of Associate Justice Clarence Thomas, recently lamented “[t]hat the Senate Judiciary Committee still lacks a protocol for vetting sexual harassment and assault claims that surface during a confirmation hearing.”
Senator Mazie Hirono has taken it upon herself to ask every nominee, including Brett Kavanaugh, “Since you became a legal adult, have you ever made unwanted requests for sexual favors or committed any verbal or physical harassment or assault of a sexual nature?” Judge Kavanaugh answered “no” to that question.
Are youthful offences relevant to serving as a Supreme Court justice?
As the “since you became a legal adult” preface to Senator Hirono’s sexual misconduct question indicates, some people are willing to overlook youthful transgressions when vetting Supreme Court justices. The term “legal adult,” however, has no specific meaning. While 18 generally is considered the age of majority, most states, including Maryland, permit 17-year-olds to be tried as adults when accused of the crimes alleged against Brett Kavanaugh by Christine Blasey Ford.
Supreme Court justices are required to render legal decisions regarding constitutional and statutory interpretation. Based solely on this job description, good moral character and a clean criminal record are irrelevant; a person may possess a keen legal mind yet engage in heinous behavior.
Supreme Court justices, however, are not mere legal reasoning machines. They serve at the apex of our third branch of government and are the symbol of a constitutional democracy based on the rule of law. Their lifetime appointments and oversight of the executive and legislative branches make them the nation’s nine most influential government officials.
While it is unrealistic and perhaps unwise to demand moral purity of nominees, it may be counterproductive to maintaining respect for our government if we do not impose some character fitness requirements on Supreme Court justices.
Is there a deadline for the Senate to act on Judge Kavanaugh’s nomination?
No. The Supreme Court begins a new term on Oct. 1, 2018, but there is no requirement that the Court have a full complement of nine justices. Cases argued before Justice Anthony Kennedy’s vacancy is filled will be decided by the eight remaining justices. The same Senate Judiciary Committee that is calling for a timely resolution to Kavanaugh’s confirmation left the Court with only eight justices for more than a year when they blocked confirmation of Judge Merrick Garland, President Barack Obama’s nominee to fill the vacancy left by the death of Antonin Scalia.
What happens if Brett Kavanaugh is not confirmed?
Brett Kavanaugh will remain on the United States Court of Appeals for the District of Columbia unless he resigns or is impeached. He will be paid his salary, receive health insurance and accrue retirement benefits. Moreover, confirmation would not insulate Judge Kavanaugh from possible criminal prosecution or undo the damage to his reputation caused by the allegations that have been made against him.
President Trump will nominate someone else for the Supreme Court position and the confirmation process will begin again. Perhaps the president and Senate will take Anita Hill’s advice and establish reasoned guidelines for judicial fitness and protocols for investigating claims of misconduct that arise during the confirmation process.
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