Supreme Court judges, appellate court judges, and district judges are appointed by the President and confirmed by the United States Senate, as provided for in the Constitution. The Constitution states that judges “shall perform their duties in good conduct,” meaning that accredited judges may serve until death. Judges may also resign or retire, and either of these circumstances will result in a vacancy in the position to be filled. Since judges serve indeterminate terms, the timing of future vacancies is unpredictable. In September 1971, Justices Hugo Black and John Marshall Harlan II retired, leaving two vacancies filled respectively by Lewis Powell and William Rehnquist in January 1972. On the other hand, it sometimes happens that several years elapse between successive vacancies. In August 1994, the retirement of Harry Blackmun created a vacancy, which was filled by Stephen Breyer. Until September 2005, Rehnquist, who had since been promoted to Chief Justice, did not lose another vacancy on the Court. This vacancy was filled by current Chief Justice John Roberts.

After a first choice has been made, the candidate is contacted by the president and invited to sit on the highest court. Employees send in an evaluation form that the candidate can complete. You visit the candidate to review tax records and payments to domestic help. An official FBI background check is conducted. Candidates the president has never met are interviewed by White House officials before being sent to the White House to be interviewed by the president in person. After making a final decision, the president calls the candidate, who is invited to prepare a statement for an appearance in front of the national press for the official announcement of the president. The candidate then meets with the senators and prepares for confirmation hearings. Once a criminal or civil case has been heard, it can be challenged in a higher court – a federal appeals court or a state appeals court.

The litigant who appeals, called an “appellant”, must prove that the court of first instance or the administrative authority made an error of law that affected the outcome of the case. An appellate court makes its decision based on the case record prepared by the court of first instance or the lower court – it does not receive additional evidence or hear witnesses. It may also review findings of fact made by the court of first instance or the trial authority, but can normally only set aside the outcome of a trial on objective grounds if the findings were “manifestly erroneous”. If an accused is found not guilty in criminal proceedings, he or she may not be retried on the basis of the same facts. If the court grants certiorari, the judges accept the pleadings of the parties to the case, as well as those of the amicus curiae or “friends of the court.” This can include industry trade groups, academics, or even the U.S. government itself. Before rendering a judgment, the Supreme Court usually hears oral arguments in which the various parties to the application present their arguments and the judges ask them questions. When the case involves the federal government, the U.S. Attorney General makes arguments on behalf of the United States. The judges then hold private lectures, make their decision, and (often after a period of several months) deliver the court`s opinion as well as any dissenting arguments that may have been written. In almost all cases, the Supreme Court does not rule on appeals under the law; Instead, the parties must apply to the Court for a certiorari.

It is the custom and practice of the court to “issue a certificate” when four of the nine judges decide to hear the case. Of the approximately 7,500 applications for certiorari filed each year, the court generally issues fewer than 150 certificates. These are, as a general rule, cases which the Court considers sufficiently important to require their consideration; A common example is where two or more federal courts of appeal have ruled differently on the same question of federal law. Less frequently, although with historical precedents, vacancies can occur when Congress changes the size of the court. Since the Constitution does not specify the size of the court, it has been left to Congress to decide the issue by law, and a small number of laws have legally altered the size of the court throughout its history. A change in the size of the Court may result in a change in the seat of the Court; A newly created seat entails a vacancy that must be filled by a first incumbent. The original Judicial Act of 1789 provided for six judges, who were immediately filled by the appointment of George Washington, resulting in the first full composition of the court. An 1801 law provided that the Court was to be reduced to five judges on its next vacancy, but was quickly prevented by an 1802 Act which reduced the legal size of the Court to six before such a vacancy occurred. In 1807, the size of the courtyard was increased to seven, creating a new vacancy, which was filled by Thomas Todd. In 1837, the size of the courtyard was increased to nine, with the two new vacancies filled by John Catron and John McKinley. An 1863 act increased the size of the court to ten, with the vacancy filled by Stephen Johnson Field. Although an 1866 law provided for the size of the court to be reduced by attrition from ten to seven (resulting in the elimination of two seats), a final law of 1869[45] interrupted the plan drawn up in 1866: the size of the court must be nine, the full force prescribed by law, which has been around ever since.

As a result, a final seat was created and occupied by Joseph Bradley. Law professors Jason Mazzone and Robin Kar published a study in 2016 in which they wrote that a detailed analysis of Senate history does not support a deliberate transfer of appointing power from one president to another. In their view, an actual vacancy should be considered differently from a position (“NV”) that was advertised in advance but was never actually vacated; an elected president who proposes a candidate should be considered differently from a president by succession (“S”); and a candidacy after the election of the successor (“MOU”) must be distinguished from a previous candidacy. [38] [39] The Senate`s requirement to confirm the president`s appointments to Supreme Court justices and other senior positions reinforces the concept of separation of powers between the three branches of government envisioned by the Founding Fathers. While cases in lower courts generally attempt to determine whether the law has been complied with, Supreme Court decisions often decide whether a law is authorized under our Constitution. In this way, the Supreme Court acts as a check on the powers of the legislative and executive branches. It also ensures that majorities in our population cannot pass laws that violate minority rights. Despite the unpredictability of vacancies, most presidents have managed to appoint at least one judge. The four exceptions are William Henry Harrison, Zachary Taylor, Andrew Johnson and Jimmy Carter. Harrison died a month after taking office, although his successor, John Tyler, made an appointment during that term. Taylor also died early in his term, although his successor, Millard Fillmore, was also appointed to the Supreme Court before the end of that term.

Johnson was denied the opportunity to appoint a judge by the 1866 Act, which reduced the size of the court. Once largely unnoticed by the public, the Senate Supreme Court nominee confirmation process is now attracting considerable public attention as well as influential interest groups, who often urge senators to confirm or reject a nominee. When the Senate is in recess, the Speaker may make a temporary appointment for any position requiring Senate approval. including filling vacancies on the Supreme Court, without the advice and approval of the Senate. Such a candidate in vacancy to the Supreme Court only remains in office until the end of the next session of the Senate (always less than two years). In order to continue to serve and be compensated for his or her services, the nominee must be formally appointed by the President and confirmed by the Senate. Of the 12 judges appointed during the vacancies (two as Chief Justice and ten as Associate Justice), only Chief Justice John Rutledge was subsequently not confirmed for a regular appointment.