Law professor Margaret Burnham
May 28, 2009
How long will the nomination process take?
Judge Sotomayor should be confirmed before the Senate takes its summer recess, scheduled to begin on Aug. 7. The president expects that she will be sitting when the Supreme Court begins its term in October.
What are the official steps in the nomination process? Who has the final say?
Under Article II section 2 of the Constitution, the president nominates Supreme Court judges, and appoints them, with the "advice and consent" of the Senate. The Senate Judiciary Committee will consider the nomination and hold a hearing. The committee will then vote on the nomination and send its recommendation to the Senate, which will have an unlimited debate. If there is a filibuster, 60 votes will be required to end the debate. The Senate will confirm or reject the nominee by a simple majority.
What questions should Sotomayor be prepared to answer during the Senate Judiciary Committee hearings?
It appears Judge Sotomayor will be asked to defend her vote in the case of Ricci v. DeStefano, which is under consideration by the Supreme Court. The case raises the question of whether New Haven violated a federal fair employment statute and the Fourteenth Amendment's Equal Protection clause by refusing to certify for promotion a list of firefighters. New Haven claimed such promotions would have a disparate impact on minority firefighters. Judge Sotomayor voted with two of her colleagues on the appeals court to support New Haven's action, as did the District Court.
Recent Supreme Court nominees have avoided speculating on how they might vote on hot button issues such as gay marriage or abortion, and Judge Sotomayor will follow this practice.
How many Supreme Court nominees has the Senate rejected?
Between 1789 and 2007, 36 nominations have failed to be confirmed. In the 20th century there were six failures, most prominently Judge Robert Bork, who was nominated by President Reagan in 1987. Most recently, Harriet E. Miers, nominated by President Bush in 2005, withdrew under pressure.
What happens if this nominee is rejected?
It is hard to imagine this nomination failing. President Obama seems determined to add to the gender and ethnic diversity of the court, and I expect he will persist in that goal if the unimaginable came to pass.