EQUALITY IN THE COURTS: Anatomy of a Nomination
June 5, 2009
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.
As the Senate confirmation hearings approach, Supreme Court nominee Sonia Sotomayor faces the initial task of courting the Senate. Although the President has the sole power to nominate whomever he wants, he shares the responsibility of appointing Justices with the Senate through the constitutional power of "advice and consent." The advice of the Senate is not binding on the President in his appointment decision; however, he must have the Senate's consent before he can appoint his nominee. Consent in the Senate requires a majority vote. The advice part of the process began Tuesday morning when Sotomayor met with majority leader Harry Reid (D-NV) and other top Democrats like Senator Patrick Leahy (D-VT), Chairman of the Judiciary Committee. She also sat down with Senator Jeff Sessions (R-AK), the ranking Republican on the Judiciary Committee, and Senate Minority Leader Mitch McConnell (R-KY), the top-ranking Republican in Congress. More ceremonial than substantive, the Capitol visit provides an opportunity for the Democratic senators to sway colleagues' opinions in Sotomayor's favor. However, the sessions can prove to be an early indicator of the nominee's ability to be confirmed. In 2005, the White House pulled the nomination of Harriet Miers after initial Capitol Hill meetings left some Senators unimpressed by her qualifications. Miers was intended to replace retiring Justice Sandra Day O'Connor, a seat later filled by Justice Samuel Alito. The White House has stated that it would like confirmation hearings to begin in July because President Obama wants Sotomayor confirmed in time for the start of the next Supreme Court term in October. However, Republicans are asking for at least two months to scrutinize the record of Sotomayor. During the last three Supreme Court confirmations, the average amount of time the Senate had to prepare for a hearing was more than 60 days. For Justice Samuel Alito, the Senate had 70 days to prepare. Once the confirmation hearings begin, Senators opposing Sotomayor's confirmation may try to use a legislative tool to slow down the process: a filibuster. Under Senate rules, at least 60 Senators usually must vote to end debate on an issue before it can be voted on. Therefore, 41 Senators can present a filibuster by refusing to end debate on a matter, effectively blocking a vote on it. Republicans currently have 40 votes and Democrats have 59, pending the disputed 2008 Senate election in Minnesota. Republicans would need to maintain all of their votes and convince at least one Democrat to switch sides for a filibuster to succeed. Republicans do not seem overly enthusiastic about attempting a filibuster at the Sotomayor hearings, though conservative pundits have called for it. In 2006, a filibuster against Justice Alito failed. Despite the likelihood that Sotomayor will be easily confirmed, the hearings provide opponents to the nominee an opportunity to express their views about the role of the Court and the qualities a Justice should possess. President Obama stated that he views empathy as an important quality in a Supreme Court Justice, as well as rigorous intellect, mastery of the law, and the ability to hone in on the key issues and provide clear answers to complex legal questions. Obama stated at the nomination of Sotomayor that a Justice should interpret the law, not make it. He believes Justices must approach decisions impartially, without any particular ideology or agenda. They must have a respect for precedent and faithfully apply the law to the facts. Opponents of Sotomayor will have an opportunity to voice their own requirements in the coming weeks and months. Learn more about federal judicial nominations and follow our work on these crucial issues on HRC's Equality in the Courts page. Contributed by Anthony Catalino, Summer 2009 McCleary Law Fellow