By Victoria Szymczak, Library Director
The Nominating Authority
To be appointed to the U.S. Supreme Court, a candidate must be nominated by the President and then confirmed by the Senate. Article II, section 2 of the 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…” U.S. Const. art. 2 § 2, cl. 2. Scholars have debated whether the “advice” of the Senate in this matter is binding on the Presidential nomination or appointment, or if it is merely an advisory role that they take on.
Seven Steps to the U.S. Supreme Court
- The President consults with his advisors, including Senators, to develop a shortlist of candidates that he will vet and interview before announcing a nomination. Both the public and private qualifications of each potential nominee will be investigated by government officials. The President is not required to reveal the names of the people he is considering for the nomination. There are no deadlines for how quickly a vacancy needs to be filled or for this process to be completed. A nomination could be announced within days of a vacancy or may take months. Outside factors, including political considerations or advance knowledge of a vacancy, will affect the speed of this process.
- After the President nominates a candidate and informs the Senate, the Senate Judiciary Committee considers the candidate’s qualifications. This step in the process is not a requirement, but since the Civil War, it is the accepted practice. The Senate Judiciary Committee is composed of Senators from both the Democratic and Republican political parties. Currently, the Committee is current chaired by Senator Lindsey Graham (R- South Carolina). There are ten other Republican Senators and ten Democratic Senators, including Hawaii’s Senator Mazie Hirono that make us the remaining members of this Committee.
At this time, the President formally submits a nomination to the Senate the nominee is evaluated by the American Bar Association’s Standing Committee on the Federal Judiciary. The committee restricts its evaluation to the candidate’s professional qualifications and does not consider a nominee’s philosophy or ideology.
- The Senate Judiciary Committee will schedule a hearing to consider the merits of the nominee. Before the hearing, the Committee will collect the information it will consider when interviewing the nominee. They may conduct their own investigations into the public and private life of the candidate. The nominee will also prepare for his or her appearance before the Senate Judiciary Committee.
- During the hearings, witnesses to support and oppose the candidate will testify. The Senators on the Committee will have the opportunity to hear the witnesses and question the applicant on the information collected. There are no exact criteria or qualifications for U.S. Supreme Court Justices. In Federalist Paper 78, Alexander Hamilton created the historical expectation that judges would act impartially and with integrity when he stated that those selected to serve “unite the requisite integrity with the requisite knowledge” to “qualify them for the stations of judges.” There is a historical expectation that nominees will possess stellar legal qualifications evidenced by service on a lower court bench, legal scholarship, and/or a respected private practice. A Supreme Court justice is not required to have a law degree; however, to date, all of the justices have held a law degree.
- Following the hearings by the Senate Judiciary Committee, the Committee members vote on the nomination. They have three options: confirmation, rejection, or no recommendation. Their decision is sent to the full Senate for debate.
- The full Senate debates the nomination following the Rules of the Senate. Currently, the question can be called and debate halted with a simple majority vote (51 to 49) to end debate. (In April 2017, the Senate abandoned a practice known as filibustering which allowed endless debate on the floor and was often employed by the minority party to delay or defeat measures up for a vote, including Supreme Court nominations. A cloture vote of 60 senators – 2/3ds majority – was needed to end debate.)
- When the debate ends, the Senate votes on the nomination. A nominee needs a simple majority of the Senators present and voting in order to be confirmed. If there is a tie, the Vice President casts the deciding vote.
For more detailed and fascinating reading about the U.S. Supreme Court nomination process, please consult these excellent, free, online resources. More through reading is available through our Primo Discovery platform. Search for United States Supreme Court in a subject line. For political influence on the Court and the nomination process, search United States Supreme Court and political questions and judicial power. Don’t forget to sort by date to find the newest publications on this topic.
- Barry J. McMillion, Supreme Court Appointment Process: President’s Selection of a Nominee (June 27, 2018) (CRS Report No. R44235)
- Denis Steven Rutkus, Questioning Supreme Court Nominees About Their Views on Legal or Constitutional Issues: A Recurring Issue (June 23, 2010) (CRS Report No. R41300)
- R. Sam Garrett & Denis Steven Rutkus, Speed of Presidential and Senate Actions on Supreme Court Nominations, 1900-2010 (Aug. 6, 2010) (CRS Report No. RL33118)
- [author name redacted], Questioning Judicial Nominees: Legal Limitations and Practice (August 30, 2018)(CRS Report No. R45300)
- Barry J. McMillion & Danis Rutkus, Supreme Court Nominations, 1789 to 2017: Actions by the Senate, the Judiciary Committee, and the President (July 6, 2018) (CRS Report No. RL33225)
- Richard S. Beth & Betsy Palmer, Supreme Court Nominations: Senate Floor Procedure and Practice, 1789-2011 (March 11, 2011)(CRS Report No. RL33247)
- Valerie Heitshusen, Senate Proceedings Establishing Majority Cloture for Supreme Court Nominations: In Brief (April 14, 2017)(CRS Report No. R44819)
- Richard S. Beth,Elizabeth Rybicki, and Michael Greene, Cloture Attempts on Nominations: Data and Historical Development Through November 20, 2013 (September 7, 2018) (CRS Report No. RL32878)
- Barry J. McMillion, Supreme Court Appointment Process: Consideration by the Senate Judiciary Committee (August 14, 2018)(CRS Report No. R44236)