Senate votes to confirm Barrett to Supreme Court

Procedure of Election of US supreme court judges and comparison with that of India:

• Unlike in India, where the judiciary is integrated, Federal and state courts in the US are separate, and the 9-member US Supreme Court is the apex forum of the federal system.

• The US Constitution provides that federal judges – including Supreme Court “justices”– are to be nominated by the President and confirmed by the Senate (the upper chamber of the US Congress).

• Currently, the Republican Party controls both the Senate and the presidency.
• In India, judges appoint judges under the Collegium system, and not elected politicians.
• The CJI along with the ‘larger collegium’ of 4 other senior-most judges virtually unknown appoint other judges in the SC and the CJI along with the ‘smaller collegium’ of two other senior-most judges, virtually appoint the High Court judges.
• In India, judges have a fixed retirement age – 65 for the Supreme Court and 62 for High Courts.
• In the US, federal judges can serve for life – their terms only ending if they resign, pass away or if they are impeached and convicted by Congress.
• The US Constitution lays down no requirements for Supreme Court justices. The 9-member Bench can typically consist of previous circuit court judges, distinguished lawyers, law professors and even politicians.
• India strictly follows the ‘seniority rule’ in the appointment of the CJI. E.g. present CJI SA Bobde was sworn in as the CJI, upon the retirement of the then CJI Justice Ranjan Gogoi, on 18th Nov 2019.
• The US-SC does not follow the system of appointment of the senior-most judge as its CJI. E.g. Justice John G. Roberts, was sworn directly as the CJ of the US-SC in Sept 2005, when he was not even an associate/sitting judge of the US-SC and hence was the junior-most appointee amongst all the 9 judges of the US-SC at the time of his appointment.
• In Indian Supreme Court, judges sit in benches of two, but in the US-SC, all 9 judges sit and hear all cases together as a part of one single bench.

Is US procedure a political process?

• The procedure for appointing a Justice in the US is provided for by the Constitution in the “Appointments Clause” (Article II, Section 2, clause 2) which states that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Judges of the supreme Court.”
• Though the process of appointing Justices has undergone changes, its most basic feature, the sharing of power between the President and Senate has remained unchanged.
• Political considerations typically play an important role in Supreme Court appointments.
• It is often assumed that Presidents will be inclined to select a nominee whose political or ideological views appear compatible with their own.
• The political nature of the appointment process becomes especially apparent when a President submits a nominee with controversial views.
• Sometimes there will be sharp partisan or ideological differences between the President and the Senate.
• On rare occasions, Presidents also have made Court appointments without the Senate’s consent, when the Senate was in recess.
• Such “recess appointments,” however, were temporary, with their terms expiring at the end of the Senate’s next session.