AuthorOyhanarte, Martin

INTRODUCTION 699 I. CONSTITUTIONAL FRAMEWORKS 701 A. The Appointment Process in the U.S. 701 B. The Appointment Process in Argentina 703 II. THE EXECUTIVE 705 A. Procedural Checks 705 1. U.S. 705 2. Argentina 707 B. Selection Criteria 709 1. Age 709 1.1 Maturity 710 1.2 Age and Ideology 713 2. Expertise 716 3. Gender 719 3.1 U.S. 720 3.2 Argentina 722 III. RECESS APPOINTMENTS 724 A. Recess Appointments in the U.S. 725 B. Recess Appointments in Argentina 726 C. A Comparative Inference 728 IV. THE SENATE 728 A. Evaluative Scope 730 B. Majorities 732 C. Failed Nominations 734 D. Political Strategy and Game Theory 736 CONCLUSIONS 739 INTRODUCTION

The appointment of new Justices to the Supreme Court will inevitably bring along different approaches to the final interpretation of the supreme law of the land. Hence, the procedures that define the composition of the Court are of the utmost political importance.

Indeed, the Supreme Court plays a critical role in countries with democratic constitutions in upholding the rule of law and the principle of separation of powers. Moreover, judge-made law has become probably one of the most prominent sources of contemporary Constitutional Law, and it is indisputable that judicial decisions can affect "the polity quite radically." (1) In particular, in countries such as the United States and Argentina, the relevance of the decisions of the Supreme Court are paramount since they are structured upon a "strong-form" of judicial review. (2) This is a central feature of governance because public policies will not have a substantial impact if they are deemed unconstitutional by the highest judicial instance.

The United States and Argentina provide an adequate case study for an "inference-oriented" and "controlled" comparison.' This is primarily because of the profound influence that U.S. constitutional law had on the design of the Argentine constitutional text and institutional practice. (4) After the constitutional conventions of 1853 and 1860, Argentina promulgated its first Constitution, following the model of division of powers, checks and balances, and judicial review as formulated in the U.S. Constitution. (5) The letter and design of the fundamental structure of both Constitutions are almost identical. In particular, the organization of the Supreme Court and "the federal judicial power under the Argentine Constitution [are] strikingly similar to that of the United States Constitution." (6) Finally, the socio-cultural differences, divergent historical features, and uneven development of the political process in the two countries make it possible to isolate variables, underscore causal inferences, and in turn, provide valuable theoretical claims.

This Article focuses on those critical points of the appointment process to elaborate on causal explanations of similar or divergent outcomes. Upon this premise, the Article draws conclusions that can enrich both legal systems.

The Article is divided into five parts. First, it expounds the essential characteristics of both constitutional frameworks. This allows for identification and isolation of those variables that may prove useful for this case-study and set the foundations for meaningful and controlled comparative inferences.

In the second part, this Article analyzes the role of the Executive branch in the process of selecting prospective nominees. It will give an account of the formal and informal procedures used to vet possible candidates. It will also identify the advantages and disadvantages of different selection criteria and evaluative methods at the nomination stage.

In the third part, this Article will look at the Recess Appointments clauses in the U.S. and Argentine constitutions. Even though historically justified, this exceptional procedure for temporary appointments currently meets resistance and doubts as to its democratic legitimacy. The comparison between both systems aims at identifying common patterns that may help explain the present public concern with this particular type of interim appointment. (7)

In the fourth part, this Article analyzes the role of the Senate. The procedure for selecting Supreme Court judges is a complex, integrated federal act that requires coordinated action of two different branches of government. In this section, it will review the kind of balance or control that should be contemplated. Based on Game Theory, this Article will offer a model to explain the almost identical institutional developments that took place within both Senates and resulted in recent rejections of specific nominees.

In the fifth and final part, this Article will present the conclusions that result from comparing these different aspects of the legal regimes and institutional practices of both countries.


    The comparative approach involves identifying and describing variables that allow us to make valid inferences. We start by describing shared constitutional rules and procedures and then present differences in institutional practices, propensities, and performances. Then, in the subsequent parts of this study, we provide theoretical claims regarding the appointment process of Supreme Court Justices.

    1. The Appointment Process in the U.S.

      In the U.S., the Supreme Court is comprised of a Chief Justice and eight Associate Justices, (8) who are appointed by the President and confirmed with the "advice and consent" of the Senate. (9) The Justices thereby appointed to the Court continue to hold office during good behavior (10) and may only be removed by Congress by means of impeachment proceedings. (11)

      The confirmation process in the Senate usually prompts action by a large number of lobby groups that campaign for or against the nominee. (12) The Senate's Judiciary Committee holds public hearings to examine the qualifications of the nominee. These defining hearings usually "affect the odds of a successful nomination." (13) Then, the nomination moves to a floor vote by the full Senate, for its confirmation or rejection. (14)

      From a formal point of view, the vote for the Senate's consent requires a simple majority. (15) This means that at least a majority of the senators present vote favorably to confirm the nomination. In some cases, the Senate may reject a nominee explicitly or just abstain from voting until the President withdraws the nomination and a new appointment process is set in motion. (16)

      Senators opposing a nomination have several procedural options. To start with, they may try to block or delay the activity of the Judiciary Committee requesting additional information on the candidate, calling for hearings and witnesses, a more thorough background check, or simply pressing for a more detailed report before forwarding the nomination to the Senate floor for its consideration.

      Once the nomination has moved through the Committee to the floor and is ready to be voted on, opposing senators may try to gather enough votes for a formal rejection or threaten a "filibuster" that would delay the confirmation process indefinitely. (17) In response, the Senate adopted Rule 22, "providing a method by which debate could be brought to a close and a vote ordered on the motion on the floor. For half a century this rule required support from two-thirds of those present and voting to impose cloture." (18) In 1975, Rule 22 was amended, "changing the requirement to an absolute standard-60 votes-to close the debate," (19) invoke "cloture," (20) and force a vote on the matter being filibustered. Then, in 2013, the Senate eliminated the 60-vote rule on federal judicial appointments, a change that DemocraticSenators "said was necessary to fix a broken system but one that Republicans said will only rupture it further." (21) Finally, in 2017, pending the confirmation process of Neil Gorsuch, a Republican dominated Senate eliminated the rule in its application to Supreme Court nominations. (22) In both cases, the majority of the Senate moved to change the rules to eliminate the possibility of filibusters in this sort of debate, in what is usually called the "nuclear option." (23)

      Thus, as of 2017, a supermajority is no longer required, and the concurrence of 51 senators (or a majority of the members present) guarantees the Presidential nominee's confirmation. This explains why the recent nominations of judges Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett were confirmed with fewer than sixty votes, following a vote closer to party lines than to broad social consensus. (24)

    2. The Appointment Process in Argentina

      Argentina's Constitution, originally promulgated in 1853 and amended in 1860, followed the U.S. model almost to the letter. It states that the federal judiciary be vested in the Supreme Court of Justice, which is the highest Court in Argentina, and in such other federal courts as might be created by Congress. (25)

      The President has the power to appoint Justices to the Supreme Court, subject to confirmation by the Senate. (26) As originally worded, the confirmation required a majority vote of the Senators present (as in the U.S.) and that the vote should take place in closed sessions. (27)

      However, even if the original constitutional wording was the same in both countries, significant differences have emerged over time due to divergent institutional practices. As noted by many Argentine scholars, "the most striking difference with the U.S. system as far as the appointment of federal judges is concerned lies in the way in which the Senate gave (and continues to give) its consent." (28)

      In the U.S., hearings before the Judiciary Committee are usually scheduled with enough time for the nominee to provide as much information as possible and answer questionnaires forwarded by individual senators. (29) In addition, as noted above, the procedures in the U.S. have been traditionally public and high-profile: the hearings are televised, the senators subject the nominees to a thorough evaluation of...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT