How Supreme Court Vacancies Are Filled

How Supreme Court Vacancies Are Filled

( – The September 18th death of Associate Supreme Court Justice Ruth Bader Ginsburg ignited a firestorm of controversy in Washington. Republicans, led by President Donald Trump, vowed to replace her as quickly as possible while Democrats promised something akin to fire and brimstone if they tried.

Ginsburg’s passing left a vacancy on the court a mere 47 days before the November 3 presidential election making it the 16th time a vacancy occurred in an election year. The only other vacancy closer to an election happened in 1864 when Chief Justice Roger Taney died 27 days before the election. However, Abraham Lincoln waited until after his reelection victory to nominate his replacement.

For many Americans, Ginsburg’s death raised the question, “How do we replace Supreme Court justices?”

Filling Supreme Court Vacancies

Concerned about concentrating too much power in one person or body’s hands, the Founding Fathers established a system of checks and balances. You’re probably already familiar with the distribution of power between the three branches of government: the executive, judicial, and legislative branches.

They also created an additional check on the power of the executive through the “Advice and Consent of the Senate.” Enshrined in Article II, section 2 of the US Constitution, the president has the power to enter into treaties provided a two-thirds majority of the Senate concurs.

Additionally, the president nominates ambassadors, consuls, ministers, Supreme Court justices, and all other officers in the executive and judicial branches. The nomination then goes to the Senate, which offers its advice and consent through the confirmation or denial of the nomination.

The Framers selected the Senate as the confirming body because each state has equal representation in that body instead of the House of Representatives wherein the population of each state determines the number of representatives assigned to each.

The system may not be perfect, but as a wise man once stated, democracy may not be the best form of government in existence, but it sure beats everything else humankind has tried so far.

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