The Sonoma County Gazette: Community News Magazine
Sonoma County Gazette
| more

Photo Gallery

Barrister Bits - The Constitution and the Supreme Court Appointment


Barrister Bits - The Constitution and the Supreme Court Appointment

by Debra A. Newby

DEAR READERS: Do you have a legal question on your mind? If so, please email me. Your name will remain confidential. This Q & A Legal Column is intended as a community service to discuss general legal principles and does not create an attorney-client relationship.

Dear Debra: 

With the unexpected death of U.S. Supreme Court Justice Antonin Scalia, the pundits are already arguing about whether our President should nominate his replacement. What does the Constitution say? 

Signed: Bill O’Right 

Dear Bill, 

First, let’s flash back to lessons learned in 5th grade and refresh ourselves on the logic of the “three legged-stool”. The foundation of our government was designed as a “checks and balances” system of three branches of government: 1) The Executive Branch – President Barack Obama who leads and directs his Cabinet and approximately 5 million federal employees; 2) the Legislative Branch, which consists of two houses in DC – the Senate (with every state electing two senators for a total of 100 elected Senators) and The House of Representatives (based on state population, no more than 435 elected individuals); and 3) The federal court system, which is comprised of approximately 600 federal district judges, 200 federal court of appeal judges, and 9 U.S. Supreme Court Justices. 

Now, when you add up all the federal court judges sitting on the bench, that is a deep sea of black robes. When there is a vacancy at the federal district or appellate level, the President appoints a replacement. Simple math dictates that the President would be spending an inordinate amount of time making appointments at this level, so as a practical matter, the Senators from that state make a recommendation and the President typically follows that recommendation. The concept is termed “senatorial courtesy” and it happens frequently without any press or hullabaloo, except for maybe coverage in a local legal newspaper.  

Federal judges, including the U.S. Supreme Court justices, are appointed for a “life term”, so they can serve until the end of their career or life. Oddly enough, even though our Constitution sets out certain qualifications for our President and members of Congress, the Constitution is silent on qualifications for a U.S. Supreme Court Judge.  

Article Two of the US Constitution states in part that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint…judges of the Supreme Court”. Hence, with the mandatory language of “shall”, that is why many argue that it would be a dereliction of duty for the President to not nominate a candidate, and/or for the Senate not to hold the nomination hearing. One observer noted that when Justice Scalia died, President Obama had 342 days remaining in his term. Plenty of time for a nomination. And just as I am writing this article, the news hit the press that Obama nominated Merrick B. Garland, a federal court of appeals judge in the District of Columbia, for the U.S. Supreme Court.  

The next step will be a hearing before the Senate Judiciary Committee. Before 1981 or so, the hearing process was relatively stream-lined and straight-forward, with the nomination process being completed in about a month. Today, this process is so politically charged, that Justice Garland should expect to be “grilled” at the hearing for at least 20-plus hours. After the screening and recommendation by the Committee, a simple majority vote by the 100 Senators is all that is required to either confirm or reject the nominee. 

Undoubtedly, the appointment is an important one, as it will set the “tone” for the highest court in the land. Already the presidential debates are addressing issues such as whether the Citizen’s United decision should be overruled. In essence, this 2010 U.S. Supreme Court decision gave corporations and unions the legal right to contribute unlimited amounts of money (which some term “dark money”) to single-candidate super PACs.   

Interesting times. Indeed. Now is the time for all citizens to be involved in local, state, and national politics. Whether it is attending a fundraiser for one of the Sonoma County Board of Supervisor’s races, or keeping up with the platforms espoused by the Presidential candidates, we all need to be awake. Yes, we may have a difference of opinion on campaign finance reform, gay rights, or immigration policies, but as Justice Charles Evans Hughes, former Chief Justice of the U.S Supreme Court, quipped, “When we lose the right to be different, we lose the privilege to be free”.



Debra A. Newby is a resident of Monte Rio and has practiced law for 34 years. She is a member of the California, Texas and Sonoma County Bar Associations and currently maintains an active law office in Santa Rosa which emphasizes personal injury law (bicycle/motorcycle/motor vehicle accidents, dog bites, trip and falls, etc.) and expungements (clearing criminal records). Debra can be reached via email(, phone (707-526-7200), or fax (526-7202).