Appointment and confirmation to the Supreme Court of the United States

The appointment and confirmation of Justices to the Supreme Court of the United States involves several steps set forth by the United States Constitution, which have been further refined and developed by decades of tradition. Candidates are nominated by the President of the United States and must face a series of hearings in which both the nominee and other witnesses make statements and answer questions before the Senate Judiciary Committee, which can vote to send the nomination to the full United States Senate. Confirmation by the Senate allows the President to formally appoint the candidate to the court.

Senate cloture rules historically required a two-thirds affirmative vote to advance nominations to a vote; this was changed to a three-fifths supermajority in 1975. In November 2013, the then-Democratic Senate majority eliminated the filibuster for executive branch nominees and judicial nominees except for Supreme Court nominees by invoking the so called nuclear option. In April 2017, the Republican Senate majority applied the nuclear option to Supreme Court nominations as well,^[1] enabling the nominations of Trump nominees Neil Gorsuch and Brett Kavanaugh to proceed to a vote.^[2][3]

Nomination

Flowchart showing process of appointment of United States Supreme Court justices.

Article Two of the United States Constitution requires the President of the United States to nominate Supreme Court Justices and, with Senate confirmation, requires Justices to be appointed. This was for the division of power between the President and Senate by the founders, who wrote:

he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint ... Judges of the supreme Court...

Upon the election of a new President, incoming White House staff prepare profiles of possible candidates for the Supreme Court, considering not only judges but also politicians and other individuals whom they consider appropriate for the role. Besides considering national figures whose views are well-known, they consider others who are less recognized. They go through published rulings, articles, speeches, and other background material to get an idea of candidates' values and views on constitutional issues. Age, health, race, gender, education, and likelihood of confirmation are also factored into considerations. Once a Supreme Court vacancy opens, the President discusses the candidates with advisors. Senators also call the President with suggestions. In turn, the White House lobbies key senators for their votes. After a first choice is decided, the candidate is contacted and called on by the President to serve on the highest court. Staffers send a vetting form for the candidate to fill out. They visit the candidate to go over tax records and payments to domestic help. A formal FBI background check is conducted. Candidates whom the President has never met are interviewed by White House officials before being sent to the White House to be interviewed in person by the President. After making a final decision, the President calls the candidate, who is told to prepare a statement for an appearance in front of the national press for the President's formal announcement. The nominee then meets with senators and prepares for confirmation hearings.

Most Presidents nominate individuals who broadly share their ideological views.^[4] In many cases, however, a Justice's decisions may be contrary to what the nominating President anticipated. A famous instance was Chief Justice Earl Warren; President Dwight D. Eisenhower expected him to be a conservative judge, but his decisions are arguably among the most liberal in the Court's history. Eisenhower later called the appointment "the biggest damn fool mistake I ever made".^[5] Another Justice whose decisions ran contrary to what was believed to be his ideology was David Souter, who was nominated to the high court in 1990 by President George H. W. Bush. Many pundits and politicians at the time expected Souter to be a conservative; however, after becoming a Justice, his opinions generally fell on the liberal side of the political spectrum.

Because the Constitution does not set any qualifications for service as a Justice, the President may nominate any individual to serve on the Court. However, that person must receive the confirmation of the Senate.

Confirmation

In modern times, the confirmation process has attracted considerable attention from special-interest groups, many of which lobby senators to confirm or to reject a nominee, depending on whether the nominee's track record aligns with the group's views. The Senate Judiciary Committee conducts hearings, questioning nominees to determine their suitability. By convention, nominees avoid revealing too much about their views on potential cases that may come before the Court. At the close of confirmation hearings, the Committee votes on whether the nomination should go to the full Senate with a positive, negative or neutral report.^[6]

The Roberts Court (April 2017 - July 2018). Front row (left to right): Ruth Bader Ginsburg, Anthony Kennedy (retired July 31, 2018), John Roberts (Chief Justice), Clarence Thomas, and Stephen Breyer. Back row (left to right): Elena Kagan, Samuel A. Alito, Sonia Sotomayor, and Neil Gorsuch.

The Committee's practice of personally interviewing nominees is relatively recent, beginning with Harlan Fiske Stone in 1925. Some western senators were concerned with his links to Wall Street and expressed their opposition when Stone was nominated. Stone proposed what was then the novelty of appearing before the Judiciary Committee to answer questions; his testimony helped secure a confirmation vote with very little opposition. The second nominee to appear before the Committee was Felix Frankfurter, who only addressed (at the Committee's request) what he considered to be slanderous allegations against him.^[7] The modern practice of the Committee questioning nominees on their judicial views began with the nomination of John Marshall Harlan II in 1955; the nomination came shortly after the Court handed down the landmark Brown v. Board of Education decision, and several Southern senators attempted to block Harlan's confirmation, hence the decision to testify.^[8][9]

Once the Committee reports out the nomination, the whole Senate considers it. A simple majority vote is required to confirm or to reject a nominee. Prior to 2017, a successful filibuster threat could add the requirement of a supermajority of 60 needed in favor of cloture, which would allow debate to end and force a final vote on confirmation. Rejections are relatively uncommon; the Senate has explicitly rejected twelve Supreme Court nominees in its history. The most recent rejection of a nominee by vote of the full Senate came in 1987, when the Senate refused to confirm Robert Bork.

Not everyone nominated by the President has received a floor vote in the Senate. Prior to 2017 a nominee could be filibustered once debate on the nomination had begun in the full Senate. A filibuster indefinitely prolongs the debate, preventing a final vote on the nominee. President Lyndon Johnson's nomination of sitting Associate Justice Abe Fortas to succeed Earl Warren as Chief Justice in 1968 was the first successful filibuster of a Supreme Court nominee. It included both Republican and Democratic senators concerned with Fortas's ethics. President Donald Trump's nomination of Neil Gorsuch to the seat left vacant by Antonin Scalia's death was the second. Unlike the Fortas filibuster, however, only Democratic Senators voted against cloture on the Gorsuch nomination, citing his perceived conservative judicial philosophy, and the Republican leadership's prior refusal to take up Obama's nomination of Merrick Garland to fill the vacancy.^[10][11][12] The Republican majority then changed the rules^[13] to eliminate the filibuster for Supreme Court nominations.^[14]

Not every Supreme Court nominee has received a floor vote in the Senate. A president may withdraw a nomination before an actual confirmation vote occurs, typically because it is clear that the Senate will reject the nominee; this occurred most recently with the nomination of Harriet Miers in 2006 before Committee hearings had begun, citing concerns about Senate requests during her confirmation process for access to internal Executive Branch documents resulting from her position as White House Counsel. In 1987, President Ronald Reagan withdrew the nomination of Douglas H. Ginsburg because of news reports containing marijuana use allegations.

The Senate may also fail to act on the nomination, which expires at the end of the session. For example, President Dwight Eisenhower's first nomination of John Marshall Harlan II in November 1954 was not acted on by the Senate; Eisenhower re-nominated Harlan in January 1955, and Harlan was confirmed two months later. Most recently, the Senate failed to act on President Barack Obama's nomination of Merrick Garland in March 2016 to fill the vacancy left by the death of Antonin Scalia; the nomination expired in January 2017, and the vacancy was later filled by President Donald J. Trump's appointment of Neil Gorsuch.^[15]

Before 1981 the approval process of Justices was usually rapid. From the Truman through Nixon administrations, Justices were typically approved within one month. From the Reagan administration to the present, however, the process has taken much longer. According to the Congressional Research Service, the average number of days from nomination to final Senate vote since 1975 is 67 days (2.2 months), while the median is 71 days (or 2.3 months).^[16][17] Some believe this is because Congress sees Justices as playing a more political role than in the past.^[18] The perceived politicization of the process has drawn criticism. For example, columnist George F. Will termed the defeat of Robert Bork's nomination "unjust" and, more generally, that the nomination process does "not delve deeply into the nominee's jurisprudential thinking."^[19] Supreme Court nominations have caused media speculation about whether the judge leans to the left, middle, or right.^[20] One indication of the politicized selection process is how much time each nominee spends being questioned under the glare of media coverage; before 1925, nominees were never questioned;^[21] after 1955, every nominee has been required to appear before the Senate Judiciary Committee and answer questions; and the hours spent being grilled have lengthened from single digits (before 1980) to double digits today.^[22]

Following is a table of the approximate number of hours that media sources estimate were spent on the questioning of Supreme Court nominees since 1925:

Once the Senate confirms the nomination by an affirmative vote, the Secretary of the Senate attests to a resolution of confirmation and transmits it to the White House.^[25] The President then prepares and signs a commission, and causes the Seal of the United States Department of Justice to be affixed to the document before the new Justice can take office.^[26] The date of commission determines a Justice's seniority.^[27] A ceremony is held in which the Justice must take the Constitutional Oath, which is used for every federal and state officeholder below the President, and the Judicial Oath used for federal judges before entering into the execution of their office.

Recess appointments

Potter Stewart, appointed by President Dwight Eisenhower, was the last Supreme Court Justice initially placed on the Court through a recess appointment.

Article II, Section 2 of the U.S. Constitution provides that:

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

Thus, when the Senate is in recess, the President may make a temporary appointment to any office requiring Senate approval, including filling vacancies on the Supreme Court, without the Senate's advice and consent. Such a recess appointee to the Supreme Court holds office only until the end of the next Senate session (always less than two years). To continue to serve thereafter and be compensated for his or her service, the nominee must be formally nominated by the President and confirmed by the Senate. Of the ten Justices who have received recess appointments - two Chief Justices and eight Associate Justices - only Chief Justice John Rutledge was not subsequently confirmed for a regular appointment. No president since Dwight Eisenhower (who made three such appointments) has made a recess appointment to the Supreme Court and the practice has become highly controversial even when applied to lower federal courts. During the 110th Congress, the Democratic leadership of the Senate specifically blocked Republican President George W. Bush from making any recess appointments with the use of pro forma sessions.

In 1960 the Senate passed a resolution stating that it was the sense of the Senate that recess appointments to the Supreme Court should not be made except under unusual circumstances.^[28] Being a resolution, it has no legally binding effect, but was intended as an expression of the position of the Senate and as a guide to executive actions. The resolution passed by a vote of 48 to 37, mainly along party lines.^{[28] [29]}

Following is a list of recess appointments that have been made to the Supreme Court:^[30]

Tenure and vacancies

The ability of a president to appoint new justices depends on the occurrence of a vacancy on the Court. In practice, such vacancies normally occur as the result of an incumbent justices' death, resignation, or retirement.

The Constitution provides that justices "shall hold their offices during good behavior", which is understood to mean that confirmed justices may serve for the remainder of their lives, until death. Justices may also resign or retire from their offices, and any of these circumstances results in a vacancy which must be filled. Because justices have indefinite tenure, the timing of future vacancies is unpredictable. Sometimes vacancies arise in quick succession: in September 1971, associate justices Hugo Black and John Marshall Harlan II both retired, producing two vacancies which were filled in January 1972 by Lewis Powell and William Rehnquist, respectively. On the other hand, sometimes several years pass between consecutive vacancies. In August 1994, Harry Blackmun's retirement created a vacancy which was filled by Stephen Breyer. No further vacancy would occur on the Court until September 2005 when Rehnquist, since promoted to chief justice, died. This vacancy was filled by current chief justice John Roberts.

Less commonly, though with historical precedent, vacancies may occur as a result of Congress changing the size of the Court. Because the Constitution does not specify the Court's size, it was left to Congress to determine the matter through law, and a small number of statutes have legally changed the size of the Court throughout its history. Changing the Court's size can have the effect of changing the seats on the Court; a newly created seat brings with it a vacancy which must be filled by an initial officeholder. The original Judiciary Act of 1789 called for six justices, vacancies promptly filled by the appointments of George Washington, resulting in the Court's first complete composition. An 1801 act called for the Court to be reduced to five justices upon its next vacancy, but was swiftly obviated by an 1802 act which restored the Court's legal size to six before any such vacancy occurred. In 1807, the Court's size was increased to seven, creating one new vacancy filled by Thomas Todd. Again in 1837, the Court's size was increased to nine, the two new vacancies being filled by John Catron and John McKinley. An 1863 act increased the Court's size to ten, the vacancy being filled by Stephen Johnson Field. Although an 1866 act provided that the Court's size would be thinned from ten to seven through attrition (and which did result in the elimination of two seats while in effect), a final 1869 act^[31] interrupted the plan set forth in 1866: the Court's size shall be nine, the legally prescribed full strength which has stood ever since. Consequently, one final seat was created and filled by Joseph Bradley.

President Franklin D. Roosevelt attempted to expand the Court in 1937, seeking to appoint an additional justice for each incumbent justice who reached the age of 70 years and 6 months and refused retirement; under Roosevelt's proposal, such appointments would continue until the Court reached a maximum size of 15 justices. Ostensibly, the proposal was made to ease the burdens of the docket on the elderly justices, but Roosevelt's actual purpose was to pack the Court with justices who would support New Deal policies and legislation.^[32] This plan, usually called the "Court-packing Plan", failed in Congress and proved a political disaster for Roosevelt.^[33] The balance of the Court shifted with the retirement of Willis Van Devanter and the confirmation of Hugo Black in August 1937. By the end of 1941, Roosevelt had appointed seven Supreme Court justices and elevated Harlan Fiske Stone to chief justice.^[34]

It is constitutionally possible for a justice to be removed from office through Congressional impeachment by the House and conviction by the Senate, another possible situation creating a vacancy. Only one justice—Samuel Chase, late 1804-early 1805—has ever been impeached; however, Chase was acquitted by the Senate, and thus not removed from office. Removal of a justice through an impeachment process has therefore never taken place. Less substantial efforts towards impeachment of a sitting justice, not reaching a House vote, have occurred more recently: William O. Douglas was twice the subject of hearings, first in 1953 and again in 1970. No mechanism presently exists for removing a justice who is permanently incapacitated by illness or injury, both unable to resign and unable to resume service.^[35]

Despite the unpredictability of vacancies, most presidents have successfully appointed at least one justice. The four exceptions are William Henry Harrison, Zachary Taylor, Andrew Johnson, and Jimmy Carter. Harrison died a month after taking office, though his successor John Tyler made an appointment during that presidential term. Taylor likewise died early in his term, although his successor Millard Fillmore also made a Supreme Court nomination before the end of that term. Johnson was denied the opportunity to appoint a justice by the 1866 act which reduced the Court's size, mentioned above. Jimmy Carter is the only president who completed one full term in office without making a nomination to the Court during his presidency.

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