Senate confirmation as a check on the judicial branch | US government and civics | Khan Academy

When we think about how the executive or the legislative branch have some form of check or power over the judicial branch, a key element of that is the executive's ability to appoint judges to federal courts, including the U.S. Supreme Court. But it's not just that the president can decide who gets to be a justice; they have to be confirmed by the Senate.

What you see over here, what I'm about to play, are the confirmation hearings from Justice Sonia Sotomayor in 2009. What I hope you get from it is it's not an easy process. This is going to be a question from Senator Chuck Grassley, who's a Republican from Iowa, and he's going to be asking about whether marriage is a state or a federal question.

"So do you agree that marriage is a question reserved for the states to decide based on Baker versus Nelson?"

"That also I thought it was a question that's pending and impending in many courts. As you know, the issue of marriage and what constitutes it is the subject of much public discussion, and there's a number of cases in state courts addressing the issue of who regulates it under what terms."

"Can I please interrupt you? I thought I was asking a very simple question based upon a precedent that Baker versus Nelson is based on the proposition that, yesterday in so many cases, whether it was Griswold, whether it's Roe v. Wade, whether it was Chevron, whether it's a whole bunch of other cases that you made reference to—the Casey case, the Gonzalez case, the League and Creative Leather Products case, the Kilo case—that you made that case to me. You said these are precedents. Now are you saying to me that Baker versus Nelson is not a precedent?"

"No sir, I just haven't reviewed Baker in a while, and so I actually don't know what the status is. If it is the court's precedent, as I've indicated in all of my answers, I will apply that precedent to the facts of any new situation that implicates it."

Always the first question.

"Well then tell me, tell me what sort of a process you might go through."

So anyway, you can see that this is not an easy process. In this situation, you have an appointment by a Democratic president and you have questions from a Republican senator. This is fairly typical. They're likely to ask more pointed questions and try to get the appointee to trip up.

If you were to see questions from a Democratic senator, they'd be more likely to ask questions that would make the nominee look a little bit better, and that tends to always be the case. If it's from the same party, they tend to try to smooth the process, while the opposition party tries to make it a little bit more difficult.

An interesting thing to think about is Justice Sotomayor eventually does get appointed to the Supreme Court, but what was the goal of Senator Grassley here in asking these questions, even if he knew that she was eventually going to be appointed?

There are other themes that we've talked about in government that he might be playing to. He might be asking these questions more for his constituents, or there might be an element of, even if a Supreme Court Justice is going to be appointed, at the end of the day, there's also the court of public opinion, so to speak.

These might be opportunities to sow some seeds of doubt or to make it a little bit more difficult for a Supreme Court Justice to, in the future, vote one way or another based on what they say during these hearings. Interesting things to talk about.