One way the appointment and confirmation process can be seen as wrong is the politicisation of the process by the President. Despite presidents always denying political consideration in the process it seems to underlie in the process of choosing Supreme Court justices. Presidents wish to choose a justice whose political and judicial philosophy reflects their own. It is often seen that a Republican president will pick a conservative candidate whereas a Democrat president will pick a more liberal candidate. There is a danger that presidents will scrutinise candidate’s previous judgements on controversial cases such as capital punishment or abortion. Most presidents do pick politically as seen with both the Clinton appointees on the court who deliver opinions that are consistently of a liberal position. As the president has to opportunity to choose a member of the nation’s highest court which in turn can shape the courts thinking for 15-20 years they tend to pick someone who reflects their own views. The death of Justice Scalia in February 2016 has highlighted how the process is increasingly politicised and partisan. Obama stated he wished to nominate a candidate with Republicans believing they should delay the appointment till the election is over. This is because the court is currently 4-4 balanced between conservative and liberal views and the next appointment could shape the balance of the court for the next decade. This highlights how the process isn’t neutral and is increasingly partisanship in nature with one President being able to shape the interpretation of the constitution for decades.
The senate has also been accused of politicising the political process. An example of this was the defeat of Bork who was considered to be an outstanding jurist and scholar of his generation. His Democratic opponents in the Senate Committee mobilised liberal interest groups to campaign against his nomination. Groups such as NARAL and NOW created a TV campaign against him and the overall campaign cost $15million and the counter attack came to little avail. A similar situation arose with Clarence Thomas’ nomination in 1991. The Senate questioned him based on his conservative philosophy and allegations of sexual harassment from Anita King. The vote for Thomas was almost entirely along party lines. The same was seen with the nomination of Samuel Alito; senators from the president’s party will ask soft questions without trying to scrutinise the candidate too hard which is not considered to be an effective recipe for checks and balances. Senators from the opposition party will also seek to try and attack and embarrass the nominees as seen with the nomination of Clarence Thomas who according to the New York Times was questioned for 25 hours compared to Sandra Day O’Connor’s 12 hours. Mackenzie concludes that the process is characterised by ‘invasive scrutiny’ and ‘punishing publicity’ which serves to discourage people from being prepared to be nominated for high office. As a result the Senate has abandoned its role of advise and consent and has instead adopted a policy of ‘search and destroy’. Furthermore politicisation is likely to be seen with the nomination to replace Scalia with the Republican Senate likely to reject any of Obama’s nominees. This means that the process can be considered wrong as the process is not a neutral one and is conducted along party lines.
A third negative effect is politicisation by the media. With Thomas’s nomination they had a ‘feeding frenzy’ on allegations made against him instead of choosing to focus on his judicial philosophy and qualification and have a debate around that. It has been suggested that press coverage of court Justices increasingly politicizes the Court as an institution making it about a personal preference rather than apolitical outcomes driven by legal precedent and the constitution. Media coverage of the Court can be incomplete or inaccurate and does not add to any checks and balances to make the process more democratic. The number of articles referencing the Supreme Court in the New York Times in the 2000s was over 25,000 showing how the media coverage about such issues is widespread and media organisations can often be bias or publish rumours as part of the nomination process. This politicisation by the media can be negative for the appointment and confirmation process as the media should not be considered qualified to influence citizen’s views on the credibility of Justices like they currently do.
However there are effective checks and balances as part of the process. The American Bar Association (ABA) provides a rating for each of the candidates. Nominees are given one of three ratings, well qualified, qualified or not qualified and are expected to gain a well-qualified rating. By this process being undertaken by independent experienced lawyers this shows how the appointment process to the Supreme Court is beneficial and adequately thorough. Furthermore as part of the process the nominee appears before the Senate judiciary committee with both supporters and critics of the candidate interviewed to gain the full picture of whether they will be suitable. As part of Clarence Thomas’ nomination they conducted interviews with Anita Hill who had accused him of sexual harassment and all other candidates will usually have people speaking for them and against them to find out about the character and qualifications of the individual. The process undertaken by the ABA and the Senate tries to ensure that the nominee has sufficient experience and qualifications. The bipartisan judiciary committee on the Senate and the full Senate vote also means that elected officials get a say in the process and can assess whether they feel the candidate is suitable for the job which is another beneficial layer of checks and balances.