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What happens when a Supreme Court Justice dies?

With the passing of Justice Antonin Scalia, the future of politics and the Supreme Court of the United States itself may look a bit terrifying. If you’re not “that guy” who ruins family gatherings with political talk, you may be wondering how Supreme Court Justices are even appointed in the first place. Don’t worry, we’ve got you covered. Read on to learn more about how a deceased or retired Supreme Court Justice is legally replaced and by whom.

Despite recent suggestions that the winner of the 2016 presidential election should be the person to name Justice Scalia’s replacement, the actual process is described in Article II Section 2 of the U.S. Constitution:

“[The President] shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court”

In theory, it’s all rather simple. The sitting U.S. President nominates an individual for the Court and Congress either approves the nomination with a two-thirds majority vote or they don’t. If the nomination is approved, that individual is then able to serve on the Court.

That’s really all there is to it.

Of course, it’s the politics behind every nomination that makes the process difficult. The Court itself is not supposed to be a political institution; however, as you’ve certainly noticed, the Court is selected by our established political bodies. To make present matters worse, the currently remaining eight Justices are split fairly evenly down liberal and conservative ideologies—meaning the next appointment to the Court will swing the majority in their ideological direction. Get ready for political fireworks.

For now, let’s avoid getting too far into politics; I’ll save that for my next family gathering. For some more innocuous, but interesting, facts about the Court, try these at dinner:

  • Supreme Court Justices and all federal judges serve lifelong appointments.
  • One of the most popular recruiting grounds for the Court is the D.C. Circuit Court of Appeals: Scalia, Ginsburg, Thomas, and Chief Justice Roberts are among its alumni.
  • At the time of Scalia’s death every presently sitting Justice had attended either Harvard or Yale law schools.
  • The “C” in “Court” is always capitalized when referring the Supreme Court of the United States.
  • William Howard Taft is the only person to be both President and a Supreme Court Justice, Chief Justice at that.

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