The process for approving a Supreme Court nominee is complex and involves multiple steps. Here is a quick overview of the key stages:
Nomination by the President
The first step is for the President of the United States to nominate someone to fill a Supreme Court vacancy. The Constitution does not set qualifications for becoming a Supreme Court Justice, so the President may nominate any individual to the Court.
Background Check
Once the nomination is made, the nominee undergoes a thorough background check by the FBI. This involves examining the nominee’s financial records, interviewing people who know the nominee, and researching any public statements or records related to the nominee.
Senate Judiciary Committee Hearings
After the background check is complete, the Senate Judiciary Committee holds confirmation hearings. The nominee must testify before the committee and answer questions from members about their background, qualifications, judicial philosophy, and positions on important issues.
Committee Vote
Following the hearings, the Judiciary Committee votes on whether to report the nomination favorably, unfavorably, or make no recommendation at all. If reported favorably, the nomination moves forward to a vote by the full Senate.
Full Senate Debate and Vote
The full Senate debates the nomination and then holds a vote. Only a simple majority is required to confirm a Supreme Court nominee. However, senators may filibuster the nomination, meaning debate can go on indefinitely unless 3/5 of the Senate votes to invoke cloture, ending debate.
Presidential Appointment
If the Senate votes to confirm the nominee, the confirmation is sent to the President. Once the President signs the commission, the individual is officially appointed as a Supreme Court Justice.
The Nomination Process
Let’s take a closer look at how the President goes about selecting a nominee for the Supreme Court.
Selecting Potential Nominees
There are no formal rules governing who the President can nominate to the Supreme Court. However, Presidents typically consider several factors when making their selection:
- Judicial qualifications and background
- Ideology and judicial philosophy
- Diversity considerations
- Confirmability
Presidents often get advice from White House staff, members of Congress, interest groups, and the American Bar Association when developing a shortlist of potential nominees.
Vetting the Candidates
Once promising candidates are identified, the White House works discreetly with the FBI and American Bar Association to thoroughly vet each individual. This involves:
- Conducting extensive background checks
- Researching qualifications and writings
- Interviewing professional acquaintances
- Analyzing any potential ethical issues or controversies
Vetting helps surface any problems or vulnerabilities that could derail a nomination. Presidents want to avoid surprises or embarassments during the public Senate confirmation process.
Interviewing the Finalists
After vetting is complete, the President will personally interview a few final candidates. In these interviews, the President not only assesses the nominee’s personality, temperament and qualifications, but also confirms that their judicial philosophy aligns with the President’s goals and ideology.
Selecting the Nominee
Once the President conducts final interviews, he or she will make the final decision on who to officially nominate. The nominee is generally someone who is acceptable to the President’s political base and has demonstrated judicial qualifications and strong intellect during the vetting process. The President formally announces the nomination through a special ceremony, kicking off the public confirmation process.
The Confirmation Process
After the President nominates someone to the Supreme Court, the focus shifts to the Senate confirmation process. This involves rigorous scrutiny of the nominee’s background, qualifications, judicial temperament and legal philosophy.
The Senate Judiciary Committee
The Senate Judiciary Committee takes the lead in handling Supreme Court nominations. The Committee consists of:
- 11 Majority party members (currently Republican)
- 9 Minority party members (currently Democrat)
The Committee is chaired by a member of the majority party, currently Republican Senator Lindsey Graham of South Carolina. The Committee begins confirmation proceedings by thoroughly examining the nominee’s background and credentials.
Committee Questionnaire
The nominee must complete a lengthy written questionnaire for the Committee. The questionnaire requires detailed information about:
- Education and employment history
- Honors, memberships and activities
- Published writings and public statements
- Financial history, taxes, and income
- Potential conflicts of interest
The questionnaire responses total hundreds of pages and take weeks to compile. Responses are carefully reviewed by Committee members and staff.
Private Meetings with Senators
The nominee will also make courtesy visits to the offices of individual Senators on the Judiciary Committee. This provides opportunity for direct conversations about the nominee’s background and views on the law.
Public Confirmation Hearings
The Committee holds public confirmation hearings, which typically last 3-5 days. Proceedings are led by the Committee chair. All members have opportunity to directly question the nominee on any issue related to their nomination.
Questioning covers the nominee’s legal qualifications, judicial record, specific court rulings, judicial philosophy and general views on constitutional interpretation. For particularly controversial nominations, hearings can sometimes grow quite contentious.
Testimony from Other Witnesses
In addition to the nominee, the Committee also hears testimony from outside witnesses. Groups and individuals both opposed to and in favor of the nominee are given opportunity to testify and provide commentary.
Committee Vote
Once hearings conclude, the Judiciary Committee meets in closed session to debate the nomination. The Committee then votes on whether to report the nomination favorably, unfavorably, or make no recommendation at all. The nomination needs a majority vote in order to receive a favorable report.
- If favorably reported, the nomination moves on to a vote by the full Senate.
- If unfavorably reported, the nomination will not proceed unless the full Senate votes to discharge it from the Committee.
- If the Committee makes no recommendation, the nomination may still proceed to the floor without an explicit Committee endorsement.
In modern history, the Judiciary Committee has never given an outright unfavorable report on a Supreme Court nomination, though on rare occasions it has voted not to recommend the nominee.
Full Senate Debate and Vote
If a nomination makes it through the Judiciary Committee, it proceeds to a debate and vote on the Senate floor. At this stage:
- Senators debate the nomination, with extended discussion between supporters and opponents.
- The Senate Majority Leader controls the schedule and determines when the final confirmation vote will occur.
- Vice President breaks any tie votes in favor of confirmation.
Most Supreme Court nominees are ultimately confirmed. However, it is possible for senators to filibuster a controversial nominee to prevent a confirmation vote. Ending a filibuster requires 60 votes rather than a simple majority.
Post-Confirmation Steps
After a Supreme Court nominee is approved by the full Senate, a few formal steps remain:
- The Secretary of the Senate transmits a resolution of confirmation to the President.
- The President signs a commission appointing the individual to the Supreme Court.
- The newly appointed Justice is sworn in, either privately or through a public ceremony.
- The new Justice will begin their lifetime tenure on the Supreme Court, generally starting work as soon as possible.
Key Factors in Confirmation Outcomes
What ultimately determines whether a Supreme Court nominee gets confirmed by the Senate? Here are some of the most influential factors:
Ideology
The ideological alignment between a nominee and sitting Senators has become an increasingly important factor. Senators typically vote along party lines, meaning nominees with views closer to the party in power are more likely to be confirmed.
Qualifications
Nominees viewed as highly qualified and possessing distinguished legal backgrounds are more easily confirmed. Significant experience as a jurist, government official, politician, or prominent attorney tends to bolster a nominee’s prospects.
Integrity
Any ethical issues or controversies in a nominee’s past are closely scrutinized. Nominees able to avoid character attacks and demonstrate strong principles under pressure fare better in the confirmation process.
Judicial Temperament
Nominees need to demonstrate patience, open-mindedness and respect for different viewpoints during heated confirmation hearings. Calm and composed responses inspire confidence in their ability to function as a justice.
Court Composition
The existing balance of liberal/conservative justices on the Court also impacts confirmation odds. Nominations that would drastically shift the Court’s ideology face steeper battles.
Historical Analysis
Looking back historically, we can see how the confirmation environment has evolved over time. Here are some key trends:
Increasingly Contentious
Throughout the 20th century, Supreme Court confirmations became progressively more controversial and partisan in nature. Early on, most nominees received little resistance. But modern nominations routinely face extensive political pushback and skepticism.
Declining Bipartisan Support
In the 1950s-1960s, over 80% of Senators typically voted to confirm Supreme Court nominees. Now confirmations are largely party-line votes, with few Senators crossing over to support the other party’s nominees.
Greater Ideological Scrutiny
There is substantially more focus today on a nominee’s ideological beliefs and judicial philosophy compared to past eras. Their views on hot button issues like abortion often dominate the confirmation discourse.
Increased Relevance of Qualifications
A nominee’s legal qualifications and academic pedigree have taken on heightened importance. Simply being a party loyalist is no longer sufficient to smooth the confirmation path.
Rising Media Attention
Modern Supreme Court nominations garner massive media coverage and intense public interest. Proceedings are closely analyzed in newspapers, on cable TV, and across the internet.
Unsuccessful Nominations
While most Supreme Court nominees are eventually confirmed, some selections have faltered during the approval process:
| Nominee | President | Year | Result |
|---|---|---|---|
| John Rutledge | George Washington | 1795 | Rejected |
| Clement Haynsworth | Richard Nixon | 1969 | Rejected |
| G. Harold Carswell | Richard Nixon | 1970 | Rejected |
| Robert Bork | Ronald Reagan | 1987 | Rejected |
| Douglas Ginsburg | Ronald Reagan | 1987 | Withdrew |
| Harriet Miers | George W. Bush | 2005 | Withdrew |
These nominations failed for a mix of reasons including senatorial courtesy, qualifications concerns, ethics issues, partisanship, changing political circumstances, or controversial ideologies.
Factors Impacting Future Confirmations
Looking ahead, here are some key factors likely to shape Supreme Court confirmation battles moving forward:
Presidential Election Years
Nominations made in presidential election years face tougher confirmation hurdles, since both parties hope to win the White House and fill the vacancy. The Senate may delay action until after the election.
Slim Senate Majorities
With control of the Senate frequently flipping between parties in recent elections, even small changes in Senator support can determine confirmation outcomes.
Polarized Politics
Deep ideological divisions between the parties sets up fierce confirmation showdowns. Bipartisan agreements are rare as both sides dig in.
Grassroots Mobilization
Well-organized activist groups on both sides of the political spectrum aggressively pressure Senators to support or oppose certain nominations.
Changed Senate Rules
Reduced use of the filibuster for judicial nominees and other Senate rule changes give the party in power more unilateral control over confirmations.
Conclusion
Supreme Court nominations have evolved from fairly routine affairs into increasingly hard-fought political battles, as both parties recognize the immense stakes involved in shaping the Court’s ideological direction for decades to come. This has made the confirmation process far more contentious, partisan and drama-filled in recent years. Going forward, nominees perceived as ideologically extreme are likely to have rocky confirmation journeys, subject to intense media scrutiny and constant political maneuvering on both sides.
