Singing with Supremes, part 3 |

Singing with Supremes, part 3

Like Christmas coming once a year, a new president comes every four or eight, but Supreme Court justices are, comparatively, forever. Look no farther than Chief Justice William Rehnquist, who saw the coming and going of seven different presidents while serving on the Court.

Of course, the all-time winner for sheer endurance was Justice William O. Douglas, who served on the Court for three years short of four decades. The longest-serving on the current court is Anthony Kennedy, who has served on the court for 29 years and counting. If Colorado’s Neil Gorsuch is confirmed — at just a tick short of age 50 — then he can expect to be a presence on the court for decades, perhaps, with good genes, ultimately eclipsing the crusty record-holder Douglas.

When a vacancy occurs upon the Court, either by death or (more hopefully) retirement, the president nominates a replacement 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 — which we recently witnessed in cable television Technicolor — 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 most times the president’s nominees are, particularly when, as now, the president’s party is in the majority in the Senate), then the nominee is appointed to the Court.

Then there’s the filibuster

In any event, among the sitting justices, two of the current Supremes are more than 80 years old and one is edging up on it in a rush. It would not be surprising in the least if there is another nomination fight (or two) before the current president’s term is consigned to history.

A wrinkle about Senate procedure involves filibuster and cloture.

The term filibuster—from a Dutch word meaning “pirate” — became popular in the 1850s, when it was applied to efforts to hold the Senate floor in order to prevent a vote on a bill.

In the early years of Congress, both representatives and as senators could filibuster. As the House of Representatives grew in numbers, however, revisions to the House rules limited debate. In the smaller Senate, unlimited debate continued on the grounds that any senator should have the right to speak as long as necessary on any issue.

In 1841, when the Democratic minority hoped to block a bank bill promoted by Kentucky Sen. Henry Clay, he threatened to change Senate rules to allow the majority to close debate. Three quarters of a century later, in 1917, senators adopted Rule 22 that allowed the Senate to end a debate with a two-thirds majority vote (modernly, 60 votes), a device known as “cloture.”

Rule 22 was first put to the test in 1919, when the Senate invoked cloture to end a filibuster against the Treaty of Versailles. Even with the new cloture rule, filibusters remained an effective means to block legislation, since a two-thirds vote is difficult to obtain. Throughout the next five decades, the Senate occasionally tried to invoke cloture, but usually failed to gain the necessary two-thirds vote. In the present configuration of the Senate — and in consideration of the deep polarization between the parties — as the Republicans hold 52 seats to the Democrat’s 46 (there are two Independents who caucus with the Dems), cloture would be difficult if not impossible to achieve.

When The Donald threatens the “nuclear option,” other than saber-rattling in Kim Jong Un’s direction — what he is portentously intimating is that the Senate reform the cloture rule vis-a-vis Supreme Court nominees in order to require a simple majority of 51 votes to vote for cloture and end a filibuster. This is, of course, a slippery slope, as what is good for the Republican-controlled goose will one day be good for the Democratic-controlled gander.

Although Chief Justice Roberts is a relatively young man (at least in Supreme Court terms) at 62 years old and is in apparent robust health, it is worth understanding the process by which a chief justice is selected.

What about the Chief?

Rather than being elevated from the bench — a chief justice is not a Brock Osweiler to a starting Peyton Manning — before his nomination as chief, John Roberts sat on the D.C. Circuit Court of Appeals. His leap was not from junior Supreme Court Justice to chief but, rather, from the Court of Appeals, to the Grand Poohbah of the United States Supreme Court.

Chief Justice Roberts’ path to the Supremes is particularly interesting. On July 19, 2005, President Bush nominated Roberts to the U.S. Supreme Court to fill a vacancy that was created by the retirement of Justice Sandra Day O’Connor. Bush announced the nomination in a live, nationwide television broadcast. On Sept. 3, 2005, Chief Justice William H. Rehnquist died. Roberts’ confirmation was still pending before the Senate. On Sept. 5, 2005, Bush withdrew Roberts nomination as O’Connor’s successor and announced his new nomination to the position of chief justice.  

As you can see, the chief justice is not selected by his or her peers, but rather is separately nominated and confirmed. In other words, if a sitting associate justice is nominated by the president to serve as chief justice, a separate nomination and confirmation proceeding takes place.

While a chief justice may be elevated from the ranks of the sitting associate justices like Roberts, he (or one day, she) may also brought in from the outside and appointed to the bench as a new Supreme Court justice and the chief justice.

Senate Minority Leader Chuck Schumer has already broadcast that the Dems will filibuster Gorsuch in not-too-transparent retaliation for the Republicans intransigence in giving President Obama’s nominee, Merrick Garland, an up-or-down vote last year. Whether reform of Rule 22 will be considered remains to be seen.

As Diana Ross might croon, “Baby, baby, where did (the) love go…?”

In any event, among the sitting justices, two of the current Supremes are more than 80 years old and one is edging up on it in a rush. It would not be surprising in the least if there is another nomination fight (or two) before the current president’s term is consigned to history.

To quote the Chaldean curse of old, “May you live in interesting times.”


Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices of counsel in the Vail Valley with the Law Firm of Stevens, Littman, Biddison, Tharp & Weinberg LLC. His practice areas include: business and commercial transactions, real estate and development, family law, custody, and divorce and civil litigation. Robbins may be reached at 970-926-4461 or at his email address:

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