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Explained: How US Supreme Court judges are picked, and the row over Justice Ginsburg’s seat

After Justice Ruth Bader Ginsburg passed away, Republicans are hurrying to push through their nominee at the last moment, as livid Democrats cry breach of precedent.

Written by Om Marathe , Edited by Explained Desk | New Delhi |
Updated: September 26, 2020 7:59:38 am
Justice Ruth Bader Ginsburg, RSB, how are US supreme court judges appointed, filling Ginsburg vacancy, donald trump, us elections, republican Supreme court nominee, express explained, indian expressThe US Supreme Court’s nine-member Bench draped for the death of Justice Ruth Bader Ginsburg in Washington. (Photo: AP)

Even as the death of Justice Ruth Bader Ginsburg of the US Supreme Court is being mourned across the country, her passing away weeks before the presidential election has added another dimension to the November 3 race.

The list of the major determining factors this election, which so far included the coronavirus pandemic, racial tensions and President Donald Trump’s law-and-order agenda, now has a new entry – filling Ginsburg’s seat in the top court.

The polarising debate has dominated headlines, with Republicans hurrying to push through their nominee at the last moment, and livid Democrats claiming breach of precedent.

So how are appointments made to the US Supreme Court, and are they always this fraught? Here’s understanding the basics.

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The US Supreme Court

Unlike in India, where the judiciary is integrated, federal and state courts in the US are separate, and the 9-member US Supreme Court is the apex forum of the federal system. State systems have their own top courts, and are typically called State Supreme Courts.

In terms of hierarchy, the US Supreme Court sits above 13 circuit courts (which are courts of appeal), which sit above 94 district level trial courts. The circuit and district federal courts are spread all over the country, and the Supreme Court is located in the national capital, Washington, DC.

Decisions by district courts can be appealed in circuit courts, but the federal Supreme Court is usually under no obligation to hear appeals against circuit court decisions– it admits less than 1% of appeals made to it.

How judges are appointed for life

The US Constitution provides that federal judges – including Supreme Court “justices”– are to be nominated by the President and confirmed by the Senate (the upper chamber of the US Congress). Currently, the Republican Party controls both the Senate and the presidency.

The process in India is different, where judges appoint judges under the Collegium system, not elected politicians.

Further, in India, judges have a fixed retirement age – 65 for the Supreme Court and 62 for High Courts. In the US, federal judges can serve for life– their terms only ending if they resign, pass away or if they are impeached and convicted by Congress.

Because there are no term limits, the liberal-conservative divide in the federal judiciary becomes highly consequential for decades. The US Supreme Court’s oldest member in history, Justice Oliver Wendell Holmes, Jr., retired in 1932 at the age of 90 after serving for 30 years. Justice Ginsburg was 87, and had been on the bench for 27 years.

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Justice Ruth Bader Ginsburg, RSB, SC judge appointment, how are US supreme court judges appointed, Ginsburg vacancy, donald trump, us elections, indian express Justice Ruth Bader Ginsburg was 87, and had been on the bench for 27 years. (File Photo)

Who can join the Supreme Court?

The US Constitution lays down no requirements for Supreme Court justices. Although the 9-member Bench typically consists of previous circuit court judges, it has included in its ranks distinguished lawyers, law professors, even politicians.

A list of potential Supreme Court nominees that President Trump released in the week before Justice Ginsburg’s passing included three Senators from the Republican Party.

Why is replacing Ginsburg such a hot button issue?

Because Supreme Court judges can serve for life, and the process of their appointment is political, filling a vacancy becomes a major point of contention between the Democratic and Republican parties – the two blocs that dominate America’s political landscape.

Before Ginsburg’s death, the 9-member bench had a conservative majority of five judges, with four progressives. Without Ginsburg, the conservative-progressive ratio is 5-3. If the Republicans are able to fill Ginsburg’s seat with a conservative, they would obtain a court that is more ideologically right-leaning than it has been in three decades.

Such a makeup could have a major impact on both divisive and consequential issues such as abortion, gun control, healthcare and voting rights, and knowing this, Republicans have announced they quickly want to confirm another judge of their choice.

Also in Explained | Justice Ruth Bader Ginsburg’s significant judgments and dissents

How Democrats are opposing a nomination this year

Democrats insist that a new Supreme Court nomination should be made by the victor of the November 3 election. They are relying on the position that Republicans took in 2016, when Judge Merrick Garland, an appointee of President Barack Obama, did not receive a vote in the Senate because the vacancy had arisen in the final year of Obama’s presidency.

That year, although the White House was in Democratic hands, the Senate had a Republican majority, and Republican leaders said they would neither hold hearings nor schedule a vote for Garland when less than a year remained until the November 2016 election.

Democrats lost the 2016 election, and Garland was sidestepped entirely. Republicans then filled the vacant seat in 2017 with a nominee of their choice, and added one more judge in 2018 after another vacancy arose. Democrats have accused the Republicans of “stealing” Garland’s seat.

How have the Republicans responded?

Despite their 2016 stance, Republicans in the 2020 election year have said they would fill Ginsburg’s vacant seat.

They have explained this volte-face by saying that in 2016, although Obama was in the White House, their party had been given a majority in the Senate just two years ago during the 2014 midterm elections, and so the American people had the right to decide the next Supreme Court justice, not a divided Washington.

This year, Republicans have said their 2016 “let the people decide” mantra is not applicable since it is their party that is currently controlling both the White House and Senate.

To this, Democrats have said that even if the Republicans were to move away from their 2016 position, there is not enough time to get another Justice confirmed before the presidential race ends. The average time to confirm a Justice is about 70 days, and just over a month remains until November 3, Democrats say.

Why does Trump want to squeeze in his pick at the last moment?

Trump, who is seeking re-election, has consistently lagged behind Democratic presidential nominee Joe Biden in polls for the November vote.

He is facing considerable disaffection for his administration’s response to the coronavirus pandemic – which has now killed 2 lakh people in the US. To keep his conservative base energised, Trump has pushed a law and order agenda, opposed Black Lives Matter protests, decried what he describes as “cancel culture” and “revisionist history”, but without significant gains against Biden, polls show.

The Supreme Court vacancy thus comes as a lifeline for Trump weeks before the election, and the President hopes that a quick confirmation would improve his odds come November.

Do the Republicans have enough votes in the Senate?

Yes. Republicans currently have 53 legislators in the 100-member Senate, and 51 of these are expected to back President Trump’s pick.

Immediately after Ginsburg’s death, there was talk that some moderate Republicans would not move from their 2016 position, and two Senators– Susan Collins and Lisa Murkowski– publicly announced their unwillingness to vote before November 3. However, others seem to have towed the party line.

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