The Problem

A vacancy arises in the Supreme Court, either by retirement, impeachment, or the passing of a Supreme Court Justice. The nation may celebrate or remember the Justice by noting their famous decisions or dissents, but not long after, the discussion will turn to their replacement. Who should it be? Should they mirror the ideology of the Justice whose seat they are taking? Or the beliefs of the President, the Congress, the nation? And once the replacement is found, how do they end up on the Supreme Court? 

Solution

Article II Section II of the United States Constitution states that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint… Judges of the Supreme Court.” There are no qualifications or requirements for Supreme Court Justices, but all past appointees have at least studied law. Once the President makes a nomination, the confirmation process begins. 

Supreme Court Nominations

The Supreme Court nominations process first begins with the Executive Branch. With counsel, the President picks their nominee to the Supreme Court. This nominee will then face the Senate Judiciary Committee, which can decide to hold a hearing on the nominee. The Committee has to vote for the nominee to face a vote from the rest of the Senate. The Senate then conducts debate, votes to end debate, and then votes on the nominee. The nominee will be appointed to the Supreme Court if the Senate votes to do so. 

How It Works

The President will often consider the political fallout of their appointment and make strategic decisions based on who they think the Senate will vote to confirm, based on ideology, experience, ethnicity, and gender. After the President makes their decision, the Senate Judiciary Committee will consider the candidate. The Senate itself chooses the Committee’s exact makeup, always including the chairman from the majority party as well as leaders from both political parties. Senators often discuss with the nominee on how they view the law. The Senate Judiciary Committee can then decide to hold a formal hearing on the nominee. However, they have refused to do so in the past, stopping the confirmation process right there. For example, in 2016, Judge Merrick Garland’s nomination to the Supreme Court by President Barack Obama was ignored by Senate Republicans, in an unprecedented move. 

Throughout the hearings, the Senate Judiciary Committee will look at the nominee’s records on decisions, as well as more personal records that may lend insight to a nominee’s character. The hearings themselves consist of questioning the nominee and also those who both support and oppose them. Senators on the Judiciary Committee will often target their questioning based on their feelings and concerns towards the candidate. Every past statement and action the candidate has made will be scoured. These hearings can become contentious, but their purpose is to enlighten the Committee on the nominee’s merits and views. 

Once the hearings are over, the Judiciary Committee will vote to confirm, reject, or abstain and this recommendation will be passed over to the rest of the Senate. This majority vote to confirm is necessary in order to send the vote to the full Senate. The Senate will then debate, allowing for filibustering, which can delay or prevent further legislative action. For the debate to end, fifty-one senators must agree to end debate. The Senate rule used to require the approval of sixty senators to end debate. Senate Majority Leader Mitch McConnell lowered the number in 2017 to further the confirmation process of Justice Neil Gorsuch, whose Senate vote lacked the sixty votes. This action became known as the “nuclear option” because it blew up precedent and harmed bipartisan relations. After the debate ends, the Senate then votes on the nomination, which requires a simple majority. The Vice President can cast a deciding vote in the case of a tie, but this has never been done for a Supreme Court Justice and happened for the first time for a circuit court judge in 2018. 

Why Care?

During the confirmation process, the character of the potential justice may also be taken into account. Since a Supreme Court Justice has never been impeached and convicted, making sure the nominee has never engaged in criminal or morally inept behavior is critical during the confirmation process. Justice Clarence Thomas was accused of sexual harassment and Justice Brett Kavanaugh was accused of sexual assault. While these issues were discussed during their hearings, they both were still appointed to the Supreme Court. The Senate Judiciary Committee has looked into the character of nominees and has even added additional witnesses in order to flesh out concerns. However, if the judge is considered to have the same reading of the Constitution or ideology as the majority party’s members, information about morals may be ignored. Still, there is often political backlash from the opposing party to appointing justices considered to be of bad character.

Since its founding, 126 people have been confirmed to the Supreme Court out of 163 nominations. While a President’s nominee is usually confirmed, Ronald Reagan and George Bush both had nominees either rejected or withdrawn before they could have one confirmed. Who becomes a Supreme Court Justice impacts the lives of Americans for years to come, especially when an appointment can lead to an ideological shift in the Court. Since the Supreme Court is a lifetime appointment, Justices’ impacts are long-lasting. The Court usually decides on issues that are far-reaching and are important to individual Americans as well as the entire United States government. The ruling for contentious cases is often decided by a single vote, meaning that one Justice can change the course of history.

    Learn More

    1. “About the Court.” Supreme Court of the United States, https://www.supremecourt.gov/about/faq_general.aspx. 
    2. “How Judges and Justices Are Chosen.” American Government Online Textbook, https://www.ushistory.org/gov/9d.asp. 
    3. “Supreme Court Nominations Research Guide.” Georgetown Law Library, https://guides.ll.georgetown.edu/c.php?g=365722&p=2471070. 

    Think Further

    1. Do you think the nuclear option was necessary? Why or why not? 
    2. What information do you think is necessary to have about a nominee to the Supreme Court? 
    3. In what ways can the Supreme Court nomination process better involve the will of the people? 

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