March 2022 | Volume 13, Issue 8

Watch the video and read the full article from The Wallstreet Journal

Note: Since this video was published, President Joseph R. Biden has nominated Judge Ketanji Brown Jackson as the first Black woman to serve on the United States Supreme Court.

Discussion Questions

1. What is the role of the United States president in filling a vacancy on the U.S. Supreme Court? From what source does that authority originate?

The role of the United States president in filling a vacancy on the U.S. Supreme Court is to nominate a qualified individual to serve on the Court. This authority originates from Article II, Section 2 of the U.S. Constitution, which provides, in pertinent part, that the president “shall nominate…Judges of the Supreme Court.”

2. What is the role of the United States Senate in filling a vacancy on the U.S. Supreme Court? From what source does that authority originate?

The role of the United States Senate in filling a vacancy on the U.S. Supreme Court is to lend “advice and consent” regarding the president’s nomination. This authority originates from Article II, Section 2 of the U.S. Constitution, which provides that the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint…Judges of the Supreme Court.”

3. As indicated in the video, President Joseph R. Biden has announced that he will fill the United States Supreme Court vacancy left by Justice Stephen Breyer’s retirement by nominating a Black woman to the Court. Does this announcement surprise you? More particularly, are you surprised by the fact that President Biden has essentially indicated race-specificity and gender-specificity requirements for all candidates? Explain your response.

This is an opinion question, so student responses may vary. In your author’s opinion, this is an opportunity for President Biden to make United States

history by nominating the first female Black justice to the Supreme Court. Some students may view this as essentially affirmative action. Remind students that: a) affirmative action is designed specifically to remedy past practices of discrimination by preferring individuals from categories that have been historically subject to discrimination, and b) affirmative action does not disregard requirements for the professional qualifications of candidates. Your author is confident that regardless of who President Biden eventually nominates, the candidate will be well-qualified in terms of education and professional experience.