Free Custom «Process for appointing a replacement for a retiring Supreme Court justice» Essay Paper

The process of appointing justices in the United States is in Article Two of the constitution. It states that it is the duty of the President to nominate a person to replace a retiring Supreme Court justice. The President aims to appoint a justice who shares the same ideological views but does not have guarantee of such a stand once the justice is in office. Some Justices change their perceived ideologies thus going against the expectation of the president. The President can nominate anyone. The constitution does not set any qualifications but usually someone who is extensively conversant with the constitution so that the senate knows his capabilities and thus vote him/her. Sitting associate justices also qualify for nomination

The Senate Judiciary committee then takes over the process by conducting a hearing. They question the nominee to gauge their suitability and at the end of the process they vote. The vote determines if the nominee goes to the full senate with a positive, negative or neutral report. The president usually has the power to withdraw a nominee before the actual confirmation vote in the senate happens. This usually happens when the senate judiciary committee has given a negative report, and he feels the senate will not confirm his choice. After this process, full senate then votes. The appointee needs to garner a clear Majority of 51 Votes to be confirmed and appointed in the vacancy.

 

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Factors affecting selection process

Lobbying – In recent times, several lobby groups have been influencing the process of nomination by the lobby for or against nominees based on their track records and their potential to best serve their interests

Track record - The track records of the nominees on the various issues that touch on the constitution plays an crucial role on if the senate judiciary committee will send the nominee to the senate with a positive, negative or neutral report.

Senate composition – If one party dominates the senate and the sitting president does not belong to this party, it can lead to the senate rejecting the nominee.

Constitution and the right to privacy

The right to Privacy is not specifically/explicitly in the Constitution of the United States. This, however, does not mean there is no right to privacy; The Bill of Rights protects specific aspects of Privacy. The 1st Amendment protects the privacy of beliefs, the 3rd Amendments protects homes against forced usage of a home to house soldiers. The 4th Amendment protects the privacy of a person and possession against unreasonable searches and the 5th amendment protects a person’s privilege against self incrimination which substantially ensures a person’s privacy of personal information. The 9th amendment also states that the ‘’enumeration of certain rights’’ in the Bill of Rights "shall not be construed to deny or disparage other rights retained by the people’’. Though this meaning is a bit vague, some judges have interpreted it to mean interpreting the bill of rights. This is so as to cover some of the rights to privacy broadly. They are not covered in the first eight amendments. Also, parts of the 14th amendment protect the right to privacy in Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The Supreme Court usually uses case by case approach on issues of rulings on privacy as opposed to establishing laws on privacy. There are four states of privacy: Solitude, which means being free from observation of others and being as close to being alone as one can get.

Intimacy, which is the right to choose a friend without taking into consideration the rights of others, Anonymity, which is freedom from identification

Supervision and finally Reserve which is the right to hold back information if one chooses to.

In the case of Stanley v. Georgia (1969), the state of Georgia sued Stanley for possession of obscene materials. The Supreme Court ruled in favor of Stanley stating that the 1st and 14th amendment prevents private possession of obscene materials a crime. The court further stated that although the state retains the power to regulate obscene material, this power does not extend to mere possession in the privacy of a home

Justice Thomas

Justice Thomas favors the state in cases involving the fourth amendment issues over the defendants. In the cases of Samson v. California, Board of Education v. Earls Georgia v. Randolph and Safford Unified School District v. Redding Justice Thomas has ruled in favor of the authorities. In the case of Safford Unified School District v. Redding, Thomas was of the opinion that the school authorities could conduct a strip search on a student suspected of supply prescription drugs in school. All the other Justices were of the opinion that the search violated the 4th amendment right which ensures the privacy of a person and possession against unreasonable searches and seizure. In Samson v. California, he wrote in favor of officers having the right to conduct random searches on parolees

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The Dred Scott case of 1857

The Dred Scott case also often referred to as Dred Scott Decision was a decision by the Supreme Court. It declared that the state had no power to regulate slavery in its territories. Furthermore, it stated that people of African descent whether slaves or free were not US citizens and as such the constitution does not protect them. It is known as one of the worst decisions of the Supreme Court. The decision of justice was 7-2.

Unlike the practices in numerous Free States at that time, the court concluded that Scott was not a citizen of the United States and hence did not have the right to sue in a federal court. The Dred Scott Decision has never been explicitly overruled but the 14th amendment drafted in 1868 overrules one part of the judgment by stating that all citizens born or naturalized in the United States are citizens of the United States. The Dred Scott decision was significant to Abraham Lincoln.

Abraham Lincoln

The decision became one of the main political planks of his campaign on opposing slavery. In his Peoria Speech, he officially declared is opposition to slavery. Lincoln promised to stop further expansion of slavery if elected. This enabled Lincoln to win the election in 1860. Lincoln denounced the decision as part of a conspiracy to extend slavery.

How does the majority opinion differ from the dissenting opinions?

A Majority opinion is a judicial opinion on a case being undertaken in a court, agreed by more than half of the members of the said court. The said agreed opinion thus presents the decision of the court and must have an explanation of the rationale behind the decision.

A dissenting opinion, on the other hand, is an opinion of one or more of the judges that do not represent the majority opinion and hence is a disagreement with the majority. Just like the opinion of the majority, a dissenting judge(s) must have an explanation of the rationale behind the decision.

Gay marriage is the same sex marriage. There have been many debates all over the world, some supporting the gay marriage and others denouncing it. There is a case before the Supreme Court of whether to authorize the gay marriage or ban it. The gay marriage should be outlawed by the highest court. There are many reasons on why governments should not legalize this marriage.

The Court will consider the challenges to the Federal Defense of Marriage Act and California's ban on same-sex marriages.

According to California's ban on same-sex marriages, it is clearly stating that the marriage should not occur between the two same sexes which must be enforced in full to ban the gay marriage. Federal Defense of Marriage Act have not stated on whether to allow the same sex but claims to defend the married couples. It is agreeable that, the constitution gives the married couples a defense, but they must be of the opposite sex.

The two clauses of the constitution must be enforced to the latter, but the ban carries a heavy judgment since it is more specific. Federal Defense of Marriage Act affects the marriage couples, and when enforcing the ban on same-sex marriage, it only defends the opposite sex. That is why the Supreme Court should also ban the gay marriage

In supporting the position, there are many reasons for marriage, the main being that to have children. Resulting to any questions of where the gay couples will get their children. This might result to negative consequences like whom to inherit their wealth.

In conclusion, the gay marriages should be banned by the Supreme Court since the same-sex marriages have specifically been banned by California’s ban on same-sex clause. The Federal Defense of Marriage Act only protects the lawfully married partners.