Appointment and confirmation to the Supreme Court of the United States
Encyclopedia
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. Justices are appointed by the President of the United States
, and must be confirmed by the United States Senate
. Modernly, this is done following a series of hearings in which both the nominee and other witnesses make statements and answer questions before the Senate Judiciary Committee
.
places the power of appointing Justices with the President of the United States
, stating:
Most Presidents nominate individuals who broadly share their ideological views. 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". 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 anyone to serve. However, that person must receive the confirmation of the Senate.
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. 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.
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. 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.
A simple majority vote is required to confirm or to reject a nominee. Once the Committee reports out the nomination, the whole Senate considers it. 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. Although Senate rules do not necessarily allow a negative vote in committee to block a Supreme Court nomination, a nominee may be filibustered once debate on the nomination has begun in the full Senate. A filibuster
indefinitely prolongs the debate, preventing a final vote on the nominee. While senators may attempt to filibuster a Supreme Court nominee in an attempt to thwart confirmation, no nomination for Associate Justice has ever been filibustered. However, President Lyndon Johnson's nomination of sitting Associate Justice Abe Fortas
to succeed Earl Warren
as Chief Justice was successfully filibustered in 1968.
It is also possible for the President to withdraw a nominee's name before the actual confirmation vote occurs. This usually happens when the President feels that the nominee has little chance of being confirmed: most recently, President George W. Bush
withdrew his nomination of Harriet Miers
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.
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. Some believe this is because Congress sees Justices as playing a more political role than in the past. The perceived politicization of the process has drawn criticism. For example, columnist George F. Will termed the defeat of Robert Bork
's nomination "unjust". Will wrote that the nomination process does "not delve deeply into the nominee's jurisprudential thinking." Supreme Court nominations have caused media speculation about whether the judge leans to the left, middle, or right. 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; after 1955, every nominee has been required to appear before the Senate Judiciary Committee and answer questions; and the times spent being grilled have lengthened from single digits (before 1980) to double digits today.
Following is a table of the approximate number of hours that media sources estimate were spent on the questioning of Supreme Court nominees:
Sources: New York Times (2005, 2009), MSNBC (2005).
Once the Senate confirms the nomination by an affirmative vote, the President must prepare and sign a commission, and have the Seal of the United States Department of Justice
affixed to the document before the new Justice can take office. It is this act of the President which officially commences the beginning of an individual Justice's tenure.
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
involves several steps set forth by the United States Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
, which have been further refined and developed by decades of tradition. Justices are appointed by the President of the United States
President of the United States
The President of the United States of America is the head of state and head of government of the United States. The president leads the executive branch of the federal government and is the commander-in-chief of the United States Armed Forces....
, and must be confirmed by the United States Senate
United States Senate
The United States Senate is the upper house of the bicameral legislature of the United States, and together with the United States House of Representatives comprises the United States Congress. The composition and powers of the Senate are established in Article One of the U.S. Constitution. Each...
. Modernly, this is done following a series of hearings in which both the nominee and other witnesses make statements and answer questions before the Senate Judiciary Committee
United States Senate Committee on the Judiciary
The United States Senate Committee on the Judiciary is a standing committee of the United States Senate, of the United States Congress. The Judiciary Committee, with 18 members, is charged with conducting hearings prior to the Senate votes on confirmation of federal judges nominated by the...
.
Nomination
Article Two of the United States ConstitutionArticle Two of the United States Constitution
Article Two of the United States Constitution creates the executive branch of the government, consisting of the President and other executive officers.-Clause 1: Executive power:...
places the power of appointing Justices with the President of the United States
President of the United States
The President of the United States of America is the head of state and head of government of the United States. The president leads the executive branch of the federal government and is the commander-in-chief of the United States Armed Forces....
, stating:
- he shall nominate, and by and with the Advice and ConsentAdvice and consentAdvice and consent is an English phrase frequently used in enacting formulae of bills and in other legal or constitutional contexts, describing a situation in which the executive branch of a government enacts something previously approved of by the legislative branch.-General:The expression is...
of the SenateUnited States SenateThe United States Senate is the upper house of the bicameral legislature of the United States, and together with the United States House of Representatives comprises the United States Congress. The composition and powers of the Senate are established in Article One of the U.S. Constitution. Each...
, shall appoint ... Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law...
Most Presidents nominate individuals who broadly share their ideological views. 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
Earl Warren
Earl Warren was the 14th Chief Justice of the United States.He is known for the sweeping decisions of the Warren Court, which ended school segregation and transformed many areas of American law, especially regarding the rights of the accused, ending public-school-sponsored prayer, and requiring...
; President Dwight D. Eisenhower
Dwight D. Eisenhower
Dwight David "Ike" Eisenhower was the 34th President of the United States, from 1953 until 1961. He was a five-star general in the United States Army...
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". Another Justice whose decisions ran contrary to what was believed to be his ideology was David Souter
David Souter
David Hackett Souter is a former Associate Justice of the Supreme Court of the United States. He served from 1990 until his retirement on June 29, 2009. Appointed by President George H. W. Bush to fill the seat vacated by William J...
, 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 anyone to serve. 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 lobbyLobbying
Lobbying is the act of attempting to influence decisions made by officials in the government, most often legislators or members of regulatory agencies. Lobbying is done by various people or groups, from private-sector individuals or corporations, fellow legislators or government officials, or...
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
United States Senate Committee on the Judiciary
The United States Senate Committee on the Judiciary is a standing committee of the United States Senate, of the United States Congress. The Judiciary Committee, with 18 members, is charged with conducting hearings prior to the Senate votes on confirmation of federal judges nominated by the...
conducts hearings, questioning nominees to determine their suitability. 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.
The Committee's practice of personally interviewing nominees is relatively recent, beginning with Harlan Fiske Stone
Harlan Fiske Stone
Harlan Fiske Stone was an American lawyer and jurist. A native of New Hampshire, he served as the dean of Columbia Law School, his alma mater, in the early 20th century. As a member of the Republican Party, he was appointed as the 52nd Attorney General of the United States before becoming an...
in 1925. Some western senators were concerned with his links to Wall Street
Wall Street
Wall Street refers to the financial district of New York City, named after and centered on the eight-block-long street running from Broadway to South Street on the East River in Lower Manhattan. Over time, the term has become a metonym for the financial markets of the United States as a whole, or...
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
Felix Frankfurter
Felix Frankfurter was an Associate Justice of the United States Supreme Court.-Early life:Frankfurter was born into a Jewish family on November 15, 1882, in Vienna, Austria, then part of the Austro-Hungarian Empire in Europe. He was the third of six children of Leopold and Emma Frankfurter...
, who only addressed (at the Committee's request) what he considered to be slanderous allegations against him. The modern practice of the Committee questioning nominees on their judicial views began with the nomination of John Marshall Harlan II
John Marshall Harlan II
John Marshall Harlan was an American jurist who served as an Associate Justice of the Supreme Court from 1955 to 1971. His namesake was his grandfather John Marshall Harlan, another associate justice who served from 1877 to 1911.Harlan was a student at Upper Canada College and Appleby College and...
in 1955; the nomination came shortly after the Court handed down the landmark Brown v. Board of Education
Brown v. Board of Education
Brown v. Board of Education of Topeka, 347 U.S. 483 , was a landmark decision of the United States Supreme Court that declared state laws establishing separate public schools for black and white students unconstitutional. The decision overturned the Plessy v. Ferguson decision of 1896 which...
decision, and several Southern senators attempted to block Harlan's confirmation, hence the decision to testify.
A simple majority vote is required to confirm or to reject a nominee. Once the Committee reports out the nomination, the whole Senate considers it. 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
Robert Bork
Robert Heron Bork is an American legal scholar who has advocated the judicial philosophy of originalism. Bork formerly served as Solicitor General, Acting Attorney General, and judge for the United States Court of Appeals for the District of Columbia Circuit...
.
Not everyone nominated by the President has received a floor vote in the Senate. Although Senate rules do not necessarily allow a negative vote in committee to block a Supreme Court nomination, a nominee may be filibustered once debate on the nomination has begun in the full Senate. A filibuster
Filibuster
A filibuster is a type of parliamentary procedure. Specifically, it is the right of an individual to extend debate, allowing a lone member to delay or entirely prevent a vote on a given proposal...
indefinitely prolongs the debate, preventing a final vote on the nominee. While senators may attempt to filibuster a Supreme Court nominee in an attempt to thwart confirmation, no nomination for Associate Justice has ever been filibustered. However, President Lyndon Johnson's nomination of sitting Associate Justice Abe Fortas
Abe Fortas
Abraham Fortas was a U.S. Supreme Court associate justice from 1965 to 1969. Originally from Tennessee, Fortas became a law professor at Yale, and subsequently advised the Securities and Exchange Commission. He then worked at the Interior Department under Franklin D...
to succeed Earl Warren
Earl Warren
Earl Warren was the 14th Chief Justice of the United States.He is known for the sweeping decisions of the Warren Court, which ended school segregation and transformed many areas of American law, especially regarding the rights of the accused, ending public-school-sponsored prayer, and requiring...
as Chief Justice was successfully filibustered in 1968.
It is also possible for the President to withdraw a nominee's name before the actual confirmation vote occurs. This usually happens when the President feels that the nominee has little chance of being confirmed: most recently, President George W. Bush
George W. Bush
George Walker Bush is an American politician who served as the 43rd President of the United States, from 2001 to 2009. Before that, he was the 46th Governor of Texas, having served from 1995 to 2000....
withdrew his nomination of Harriet Miers
Harriet Miers
Harriet Ellan Miers is an American lawyer and former White House Counsel. In 2005, she was nominated by President George W. Bush to be an Associate Justice of the U.S...
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
White House Counsel
The White House Counsel is a staff appointee of the President of the United States.-Role:The Counsel's role is to advise the President on all legal issues concerning the President and the White House...
. In 1987, President Ronald Reagan
Ronald Reagan
Ronald Wilson Reagan was the 40th President of the United States , the 33rd Governor of California and, prior to that, a radio, film and television actor....
withdrew the nomination of Douglas H. Ginsburg
Douglas H. Ginsburg
Douglas Howard Ginsburg is a judge on the United States Court of Appeals for the District of Columbia Circuit. He was appointed to this court in October 1986 by President Ronald Reagan. He served as its Chief Judge from July 16, 2001 until February 10, 2008...
because of news reports containing marijuana use allegations.
Before 1981 the approval process of Justices was usually rapid. From the Truman through Nixon
Richard Nixon
Richard Milhous Nixon was the 37th President of the United States, serving from 1969 to 1974. The only president to resign the office, Nixon had previously served as a US representative and senator from California and as the 36th Vice President of the United States from 1953 to 1961 under...
administrations, Justices were typically approved within one month. From the Reagan administration to the present, however, the process has taken much longer. Some believe this is because Congress sees Justices as playing a more political role than in the past. The perceived politicization of the process has drawn criticism. For example, columnist George F. Will termed the defeat of Robert Bork
Robert Bork
Robert Heron Bork is an American legal scholar who has advocated the judicial philosophy of originalism. Bork formerly served as Solicitor General, Acting Attorney General, and judge for the United States Court of Appeals for the District of Columbia Circuit...
's nomination "unjust". Will wrote that the nomination process does "not delve deeply into the nominee's jurisprudential thinking." Supreme Court nominations have caused media speculation about whether the judge leans to the left, middle, or right. 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; after 1955, every nominee has been required to appear before the Senate Judiciary Committee and answer questions; and the times spent being grilled have lengthened from single digits (before 1980) to double digits today.
Following is a table of the approximate number of hours that media sources estimate were spent on the questioning of Supreme Court nominees:
| Year | Nominee | Hours |
|---|---|---|
| 1925 | Harlan Fiske Stone Harlan Fiske Stone Harlan Fiske Stone was an American lawyer and jurist. A native of New Hampshire, he served as the dean of Columbia Law School, his alma mater, in the early 20th century. As a member of the Republican Party, he was appointed as the 52nd Attorney General of the United States before becoming an... |
5 |
| 1938 | Felix Frankfurter Felix Frankfurter Felix Frankfurter was an Associate Justice of the United States Supreme Court.-Early life:Frankfurter was born into a Jewish family on November 15, 1882, in Vienna, Austria, then part of the Austro-Hungarian Empire in Europe. He was the third of six children of Leopold and Emma Frankfurter... |
|
| 1955 | John Marshall Harlan II John Marshall Harlan II John Marshall Harlan was an American jurist who served as an Associate Justice of the Supreme Court from 1955 to 1971. His namesake was his grandfather John Marshall Harlan, another associate justice who served from 1877 to 1911.Harlan was a student at Upper Canada College and Appleby College and... |
|
| 1957 | William J. Brennan, Jr. William J. Brennan, Jr. William Joseph Brennan, Jr. was an American jurist who served as an Associate Justice of the United States Supreme Court from 1956 to 1990... |
3 |
| 1969 | Thurgood Marshall Thurgood Marshall Thurgood Marshall was an Associate Justice of the United States Supreme Court, serving from October 1967 until October 1991... |
7 |
| 1971 | William H. Rehnquist | 7 |
| 1975 | John Paul Stevens John Paul Stevens John Paul Stevens served as an Associate Justice of the Supreme Court of the United States from December 19, 1975 until his retirement on June 29, 2010. At the time of his retirement, he was the oldest member of the Court and the third-longest serving justice in the Court's history... |
6 |
| 1981 | Sandra Day O'Connor Sandra Day O'Connor Sandra Day O'Connor is an American jurist who was the first female member of the Supreme Court of the United States. She served as an Associate Justice from 1981 until her retirement from the Court in 2006. O'Connor was appointed by President Ronald Reagan in 1981... |
12 |
| 1986 | Antonin Scalia Antonin Scalia Antonin Gregory Scalia is an American jurist who serves as an Associate Justice of the Supreme Court of the United States. As the longest-serving justice on the Court, Scalia is the Senior Associate Justice... |
6 |
| 1987 | Robert Bork Robert Bork Robert Heron Bork is an American legal scholar who has advocated the judicial philosophy of originalism. Bork formerly served as Solicitor General, Acting Attorney General, and judge for the United States Court of Appeals for the District of Columbia Circuit... (not confirmed) |
30 |
| 1987 | Anthony Kennedy Anthony Kennedy Anthony McLeod Kennedy is an Associate Justice of the United States Supreme Court, having been appointed by President Ronald Reagan in 1988. Since the retirement of Sandra Day O'Connor, Kennedy has often been the swing vote on many of the Court's politically charged 5–4 decisions... |
11 |
| 1990 | David H. Souter | 20 |
| 1991 | Clarence Thomas Clarence Thomas Clarence Thomas is an Associate Justice of the Supreme Court of the United States. Succeeding Thurgood Marshall, Thomas is the second African American to serve on the Court.... |
25 |
| 1993 | Ruth Bader Ginsburg Ruth Bader Ginsburg Ruth Joan Bader Ginsburg is an Associate Justice of the Supreme Court of the United States. Ginsburg was appointed by President Bill Clinton and took the oath of office on August 10, 1993. She is the second female justice and the first Jewish female justice.She is generally viewed as belonging to... |
20 |
| 1994 | Stephen G. Breyer | 20 |
| 2005 | John G. Roberts, Jr. | 20 |
Sources: New York Times (2005, 2009), MSNBC (2005).
Once the Senate confirms the nomination by an affirmative vote, the President must prepare and sign a commission, and have the Seal of the United States Department of Justice
United States Department of Justice
The United States Department of Justice , is the United States federal executive department responsible for the enforcement of the law and administration of justice, equivalent to the justice or interior ministries of other countries.The Department is led by the Attorney General, who is nominated...
affixed to the document before the new Justice can take office. It is this act of the President which officially commences the beginning of an individual Justice's tenure.
Recess appointments