14 February, 2016

Vacancy at SCOTUS

1st February 2016 - President Trump nominated Neil Gorsuch

30th January 2017 - President Trump to nominate on 2nd February

Merrick Garland - the Senate did not hold a confirmation hearing for Mr Garland - the nominee of President Obama 


Addition 17th March 2016 - Merrick Garland nominated and more about Mr Garland



The Supreme Court of the United States of America has a vacancy arising from the death, at the age of 79, of Associate Justice Antonin Scalia.

Article III of the US Constitution states that - "The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish."

The power to nominate candidates for the vacancy rests with the President of the USA and President Obama has announced that he will make a nomination.

Nomination is followed by the Senate holding confirmation hearings.  Examples of confirmation hearings held during the final year of a Presidency may be seen via the SCOTUS Blog.

A key feature of SCOTUS is
that it rules on the interpretation and application of the Constitution of the United States.  Numerous examples could be given where the court carried out this important task.  SCOTUS has a power to declare Federal or State legislation "unconstitutional" and such legislation is "struck down" - (a power established since Marbury v Maddison 1803).  This is a power not granted to the judiciary in the United Kingdom.  The furthest the British judiciary may go is to issue a Declaration that legislation is incompatible with Convention Rights (as defined in the Human Rights Act 1998) and it is then for Ministers and Parliament to decide what to do.  Pending any such action, the legislation remains in force.

One example of SCOTUS determining a constitutional question is Roper v Simmons 2005 where the court ruled that it was unconstitutional to execute those under age 18 at the time of the crime.  This was a 5 to 4 majority decision.

Just as the European Court of Human Rights views the European Convention as a "living instrument" that must be applied to contemporary circumstances, the Roper v Simmons majority viewed the US Constitution in similar vein.

Let's watch developments carefully and see how the nomination process goes.

Wikipedia - Supreme Court of the USA

For a view of the effect of the court having 8 justices see The Guardian 14th February 2016.

It cannot be said that the process for appointment of a Supreme Court Justice in the United Kingdom is entirely without the involvement of politicians.  The process is in the Constitutional Reform Act 2005 sections 26 to 31.  There is a selection commission (s.26) that is required to consult certain politicians (s.27) and it reports to the Lord Chancellor who is a politician (s.28) who consults those politicians again.  The Lord Chancellor has certain options (s.29 and s.30) including a right to reject a selection on certain limited grounds (s.30).

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