Federal District and Appellate Court judges

Federal District and Appellate Court judges, as well as Justices of the Supreme Court of the United States are nominated by the president and then must be confirmed by the U.S. Senate. In theory, a president nominates a “qualified” person to serve as a Supreme Court justice. Then the Senate approves or rejects the nominee based on those qualifications. Selecting a nominee is usually a controversial process complicated by tests.

• Litmus Test – This is a question or a series of questions asked of a potential candidate meant to determine the political ideology of the candidate. The answers affect whether the name of the person will be selected to go forward, despite any other qualifications. Increasingly, presidents want to select nominees who faithfully reflect the political and judicial philosophy of the president.
• Senatorial Courtesy – This is a tradition (not stipulated in the Constitution) that gives considerable weight to the preferences of each of the senators from where that judge would serve. This tradition is used for federal judges, not for Supreme Court nominees.

Senatorial Courtesy and “Blue Slips”

The Senate will not confirm a nominee if the senior senator of the state from which the nominee resides objects to the nominee. (This applies only if the Senator is of the president’s party). This is basically a veto power, never mentioned in the Constitution, but a courtesy extended to members of the senate. The senator uses a Blue Slip—literally a blue slip of paper on which the senator is requested to outline his or her views on the nominee. Recording a negative opinion, or by not returning the blue slip, usually kills the nomination and the name is dropped from consideration. The significance of this practice means that a president will nominate only those recommended by the key senator.

Historically, the Supreme Court did not review cases.

Directions

• The Constitution of the United States requires presidents to submit their nominees to the United States Senate for their advice and consent. Review the list of nominees for the Supreme Court from 1789 to the present. Senate of the United States: http://www.senate.gov/pagelayout/reference/nominations/Nominations.htm
• Review the nomination and confirmation process, Georgetown Law Library, Supreme Court Nominations Guide: http://www.law.georgetown.edu/library/research/guides/supreme_court_nominations.cfm
• Some suggest the practices of applying a Litmus Test and Senatorial Courtesy to potential nominees for federal judges and for the Supreme Court totally subverts the Constitution of the United States.
• Write a one page response on the practice of using political “tests” to determine ideological purity in selecting judges as opposed to selecting a nominee based on professional qualifications without referring to ideology.