Litigation Law

Supreme Court Justices

By: Clark, Campbell, Lancaster & Munson, P.A.

 Q: How are state and federal Supreme Court justices appointed?

A: A swarm of controversy resulted from the death of United States Supreme Court Justice Antonin Scalia, as political parties argue over when a replacement should be appointed and by whom.  The appointment process for judges on the highest courts of both the country and the State of Florida involves steps covered by constitutions and tradition.

First, the United States Constitution requires the President to nominate justices for the United States Supreme Court.  Typically, the President will look for someone who is well qualified and serves his political interests.  Because the Senate’s consent is required before the nominee takes the bench, the President may discuss the nomination with key senators and choose someone who strikes a balance palatable to a majority of the gatekeepers.  The first gatekeeper is the Senate Judiciary Committee, currently made up of 11 Republican senators and 9 Democrats (none from Florida).  That committee, which as originally designed did not interview candidates, researches and reviews the candidate’s background and holds a hearing with witnesses in favor and against the nominee, including the nominee himself or herself answering committee questions.  Tradition calls for sending the nominee to the full Senate for consideration regardless of whether the recommendation is to confirm or to reject.  Because a vote of 60 of the 100 senators is required to stop a filibuster and to force a vote, 41 senators (and there are 54 Republican senators at the moment) could presumably block the vote from occurring.  Notwithstanding the political considerations, nominees have been confirmed almost ten times as often as rejected.  Notably, the Chief Justice position is not automatically filled by an existing justice, but rather that role is to be filled through these same confirmation proceedings.  Only about one-third of the Chief Justices ever sat as Associate Justices.

Second, there is the Florida Constitution.  Most of the procedures discussed above have formed from tradition and necessity, since the federal Constitution told us little more than that the President had to appoint justices with the advice and consent of the Senate.  Our state’s governing document is much more detailed.  Although the legislature does not serve a gatekeeping function, the governor’s choices are limited to the three to six nominees proposed by a Judicial Nominating Commission, which is made up of three lawyers appointed by the Florida Bar Board of Governors, three electors appointed by the governor, and three additional non-lawyer electors chosen by a majority vote of the first six commissioners mentioned.  While this process may appear to give the Governor great power in selecting the judiciary, the new justice will face statewide voter consent to retention at the first general election that occurs more than one year after the initial appointment.

With the vacancy left by Justice Scalia, there are eight sitting United States Supreme Court justices—four appointed by a Republican President and four appointed by a Democrat.  There are seven Florida justices, with the majority appointed by Republican governors.

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