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Robbins: Filling the Supreme Court bench

I got to thinking lately that we are one short of a full bench.

What I am pondering about is the United States Supreme Court — The Nine — although it has not always been that number (and, as you may know, there are recent rumblings about swelling its ranks).

What else that I am thinking about is our own Eight, one short of a full squad.



Allow me to explain.

My brother is a lawyer. My sister-in-law is a lawyer. My nephew; yep, another one. My niece’s fiancé is a lawyer, too. My younger son and his significant other? Both lawyers. My brother-in-law is a lawyer who works for my brother the lawyer. And I make eight. Yikes! Any way you add it up, that’s a lot of lawyers in one family.



So I got to thinking, if we only had one more, we could one day make our pitch to flesh out the entire Supreme Court bench. But, on second thought … nah.

How, though, does one — besides stellar academics and a sparkling resume — become one of the Supremes? It goes like this:

One of the privileges of the presidency is the right to appoint Supreme Court justices. However, there’s a catch. Well, two catches, really. First, Supreme Court justices are really “nominated” rather than “appointed by the president.” Second, as a justice of the United States Supreme Court serves for life (or for however long she or he desires), it can well be (and has often been) that no “vacancy” sign lights up during a presidential term. As such, the opportunity to nominate a justice does not avail itself.

Before delving further, it is essential to understand why the nomination of Supreme Court justices is so important and to garner that understanding it is, in turn, necessary to comprehend the structure of our form of government.

As you likely learned in civics, there are three branches of federal government: the executive (the president and his — or one day, her — appointed cabinet), the legislative (representatives and senators), and the judiciary (the U.S. Supreme Court and the “lower” federal courts — district courts which are the trial level for disputes, and the Circuit Courts of Appeal. In this region, the 10th Circuit Court of Appeals in Denver).

There are 11 circuits. The 10th Circuit includes the states of Utah, Wyoming, our own Colorado, New Mexico, Kansas and Oklahoma. For a case to be tried in federal court, generally speaking, there must be “diversity” jurisdiction and the amount in dispute must be at least $75,000. Diversity jurisdiction means, simply, that the disputants must be citizens of different states.

Appeal from trial is taken to the Circuit Court of Appeals and may then advance to the United States Supreme Court. I use the word “may” intentionally in the preceding sentence as it is not a right that a matter will be heard by the Supremes. Rather, the justices accept a case for consideration upon a writ of certiorari (know among lawyers as a “cert”). “On cert” means that the court has determined to hear a matter which has been appealed to it.

Practically speaking, the Supremes grant cert to less than 1% of the appeals submitted to them for hearing and, generally, hear only “hot button” issues, developing areas of law, and matters which, if heard, might help in resolving conflicting decisions which have been rendered in similar cases in the various circuits.

While the executive branch steers policy and the legislative branch “creates” law, it is up to the judicial branch to interpret the law, always in the context of constitutional intent and permissibility. Accordingly, as the United States Supreme Court is the final arbiter of the laws, having justices appointed to the court who share a president’s philosophy of governance and constitutional construction is a key legacy of any administration.

Sorta like Christmas coming once a year, a new president comes every four — or eight — but Supreme Court justices are, comparatively, forever. The all-time winner for sheer tenacity was Justice William O. Douglas, who served on the court just a tick short of 37 years.

When a vacancy opens up, either by death or (better yet) retirement, the president nominates a replacement for consideration to the Senate. Pursuant to Article II, Section 2, Clause 2 of the Constitution, the role of the Senate is to provide its “advice and consent” to a nomination.

Key senators, particularly those on the Judiciary Committee, are typically consulted in advance by the White House about potential nominees. After a nomination is made, it is assigned to the Senate Judiciary Committee. The Committee holds a public hearing and a subsequent vote is taken to “report” the nomination to the full Senate.

A majority vote of the Senate is required to confirm a nominee. If confirmed (and, historically at least, most times the president’s nominees are, especially if the president’s party is in the Senate majority), the nominee is appointed to the court.

It is worth a peek, too, to note the process for selecting a chief justice. Simply, the chief justice is not selected by his or her peers, but rather is separately nominated and confirmed. If a sitting associate justice is nominated by the president to serve as chief justice, a separate nomination and confirmation proceeding takes place. Or, as in the case of the current chief, John Roberts, she or he may be brought in “from the outside” and appointed to the bench as the new chief justice.

Lately there have been whisperings that Justice Stephen Breyer may soon step down which, Minority Leader McConnell’s obstreperousness notwithstanding, may give the president an opening to make a pick.

I’m thinking, “Hey, we’ve got eight to choose from!” But, nah … D.C. is too darn muggy in the summer.


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