In this blog series, HRC attorneys discuss news and break down legal theories relevant to a U.S. Supreme Court nomination and the pending retirement of Justice David Souter.
Now that Sonia Sotomayor has been nominated for the soon to be vacant Supreme Court seat by President Obama, the U.S. Senate has the opportunity to weigh in. According to Article II, Section 2 of the U.S. Constitution, ” [The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint…Judges of the supreme Court.” This clause is understood to give power to the Senate to reject Supreme Court nominees prior to appointment. It is one of several places in which the Constitution balances power between the three branches of government.
There are no objective criteria for a Supreme Court nominee, indeed the nominee is not even required to have legal training of any kind. However, in the modern era, Presidents try to select intelligent legal professionals with whom they share a similar judicial philosophy, or view about the role of the courts. Careful selection has paid off, with the Senate rejecting only 12 nominees since John Jay was nominated by President George Washington in 1789.
For Sotomayor, the next step is for the Senate Judiciary Committee, headed by Chairman Patrick Leahy and Ranking Member Jeff Sessions, to hold hearings on her nomination. In preparation, Sotomayor has been asked to respond to a bipartisan questionnaire. The hearings are an opportunity for the Committee to probe the nominee’s views on topics like the constitution, the role of the court, and past judicial decisions. The Committee will then vote on whether to recommend confirmation of the nominee to the full Senate.
Once a nomination reaches the full Senate, Senators will have the opportunity debate the merits of the nominee. Only a simple majority is required for confirmation. President Obama has expressed his desire that Sotomayor be confirmed before the Senate adjourns for its August recess.
Learn more about federal judicial nominations and follow our work on these crucial issues on HRC’s Equality in the Courts page.
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