By Eric Ross
The process and criteria described below may surprise the uninitiated. However, delving into the process and the history of selections, it becomes clear that, similar to many of the processes of today’s government, the selection process is largely political.
Eric Ross, a third year student at Albany Law School, is President of the Albany Law Civil Liberties Union and a Senior Editor of the Center. He works at the U.S. Attorney's Office, Northern District of New York, as a Law Intern. This paper and slide presentation were prepared for the Judicial Process Seminar, fall 2010.
Elena Kagan’s nomination and confirmation to the Supreme Court, in the summer of 2010, brought to the forefront the process by which Justices are selected by the President and confirmed by the Senate. What is not publicized is the selection process itself. What exactly is needed to become a Supreme Court Justice?
One looking to the Constitution for selection criteria will be surprised to learn that it does not provide any guidelines for selecting Justices to the Supreme Court. The Constitution does provide a clue, however, as to how a judge is appointed. It says, “[The President] shall have Power, by and with the Advice and Consent of the Senate . . . [to] nominate . . . Judges of the [S]upreme Court.” The extent of instructions on how to nominate a judge is limited to the language that, “[t]he Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour."*
