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March 17 2017

Legal Brief: The Ginsburg Rule

by Erin Hawley




History of Supreme Court Nominations 

The United States Constitution provides “[t]he President … shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … Judges of the [S]upreme Court.” U.S. Const. art. II, §2. The Constitution itself is rather sparse regarding Supreme Court nominations and thus a common practice has evolved and changed over time. 

Our first President, George Washington, was in the unusual position of nominating all of the then-six Supreme Court Justices at once. In a process very different from today, the Senate confirmed all six of the President’s nominees by voice vote just two days later. It appears that President Washington did not consult with the nominees, and one of them, Robert Harrison of Maryland, declined his confirmed seat. 

The United States Constitution provides “[t]he President … shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … Judges of the [S]upreme Court.” U.S. Const. art. II, §2.

By and large, the confirmation process for Supreme Court Justices continued to be relatively uncontroversial up through the early 1800s. When a vacancy arose, Presidents usually selected a nominee quickly, sent their names to the Senate (often without consulting the nominee), and the Senate confirmed most nominees by a voice vote within days. 

The intense political rivalries and sectionalism surrounding the Civil War led to close scrutiny of many Supreme Court nominees. But interestingly, the confirmation process still looked remarkably like the process from the Washington era. There were no hearings held and little, if any, direct contact between the Senate and the nominees. 

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Independent Women’s Forum’s mission is to improve the lives of Americans by increasing the number of women who value free markets and personal liberty. Sister organization of Independent Women’s Voice.
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