5 things to know about the Supreme Court nomination process from a Long Beach expert

Craig R. Smith, director of the Center for First Amendment Studies at Cal State Long Beach and a former speechwriter for President George H. W. Bush, is watching closely as politicians and pundits alike fight over when to fill the Supreme Court vacancy left by Justice Antonin Scalia, who died Feb. 13 in Texas.

Indeed, from campaign war rooms to living rooms across the United States, the country was awash in talking points and meme-making within hours of the news that Scalia died.

Smith said this shouldn’t be so, as the country’s founding document is straightforward in setting the course for a judicial nomination.

“The first thing is, the president has a right, if not a moral obligation, to appoint someone to the Supreme Court in a timely maer,” Smith said. “The Constitution says the Senate is to evaluate and offer their advice and consent.”

Still, the death of Scalia — a Reagan appointee who doggedly held to an originalist interpretation of the Constitution and was on the side of a 5-4 conservative majority — immediately pushed aside the election-year issues of immigration, terrorism and the economy, as the nation’s two major parties staked out turf on the matter of judicial nominations.

President Barack Obama vowed to nominate a successor to Scalia, as Republicans say the vacancy should be filled under the next president, and not in Obama’s last year in office.

In the days following Scalia’s death, spin doctors in the press and armchair political scientists on social media have either preached urgency in filling the vacancy, or a delay until the next presidency, with each political side accusing the other of hypocrisy, citing examples like Obama filibustering the 2006 nomination of Justice Samuel Anthony Alito Jr., or Republicans gladly approving Anthony Keedy in 1988, a lame-duck year for Reagan.

In the political swirl surrounding the nomination process, Smith said there are some key things Americans should understand:

1. The president nominates appointments to the Supreme Court when a vacancy occurs. But there is no hard and fast rule about when. Generally the expectation is “in a timely maer” as is the case with lower court appointments.

2. The Senate Judiciary Committee then holds hearings on the nominee and issues a recommendation. Many nominees have been stopped at this level, including nominees under President Richard Nixon

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3. The next step is debate and final vote by the Senate where a simple majority is required. Justice Clarence Thomas barely made it. Scalia was approved unanimously. Robert Bork was defeated in 1987.

4. Chief Justice Earl Warren, the former goveor of Califoia, resigned in 1968 contingent upon the approval of a successor. President Lyndon B. Johnson attempted to move his friend, Associate Justice Abe Fortas, up to chief justice. But Fortas, it was discovered, was taking consulting fees from the Wolfson Family Foundation, which created a conflict in a past ruling.

The hearings also revealed Fortas’ continuing advisory role to Johnson. Sen. Strom Thurmond of South Carolina led a filibuster in 1968, an election year, that forced the withdrawal of Fortas’ nomination for chief justice.

Johnson did not attempt another nomination. Nixon won the election of 1968 and then named replacements for Fortas, who resigned, and for Warren.

Ever since, the unwritten “Thurmond Rule” has been cited by Democrats and Republicans alike as a reason not to confirm a justice in the months ahead of an election.

5. Expect the nomination process to be a key presidential campaign issue.

Smith says the nomination process moved from the Senate sphere into the public sphere, starting with Fortas and the interest group pressure and media coverage surrounding his nomination.

Whereas the Senate should focus on a potential justice’s qualifications and constitutional interpretations, the elected leaders often play to their voters, and the public, influenced by the media, focuses on a nominee’s gender, race and social agenda.

“I think the court should be above politics, and it’s a shame that court appointments have become politicized,” Smith said. “It started with Bork. The Democrats did it first. The was no reason for Bork not to be appointed. And then the Republicans got even with Clarence Thomas, and it’s been going forth ever since. We should retu to the time when it was beyond politics.”

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