The nomination and confirmation of justices to the Supreme Court of the United States involves several steps, the framework for which is set forth in the United States Constitution. Specifically, Article II, Section 2, Clause 2, provides that the president of the United States nominates a justice and that the United States Senate provides advice and consent before the person is formally appointed to the Court. It also empowers a president to temporarily, under certain circumstances, fill a Supreme Court vacancy by means of a recess appointment. The Constitution does not set any qualifications for service as a justice, thus the president may nominate any individual to serve on the Court.
In modern practice, Supreme Court nominations are first referred to the Senate Judiciary Committee before being considered by the full Senate. Since the late 1960s, the committee's examination of a Supreme Court nominee almost always has consisted of three parts: a pre-hearing investigation, followed by public hearings in which both the nominee and other witnesses make statements and answer questions, and concluding with a committee decision on what recommendation to make to the full Senate (favorable, unfavorable or no recommendation). Once that recommendation is reported to the Senate, floor debate can begin ahead of a confirmation vote. A simple majority vote is needed for confirmation.
The process for replacing a Supreme Court justice attracts considerable public attention and is closely scrutinized. Typically, the whole process takes several months, but it can be, and on occasion has been, completed more quickly. Since the mid 1950s, the average time from nomination to final Senate vote has been about 55 days. Presidents generally select a nominee a few weeks after a vacancy occurs or a retirement is announced. The number of hours each nominee has spent before the Senate Judiciary Committee for public testimony has varied; the six nominees who have appeared before the committee since 2005 spent between 17 and hours testifying.
Constitutional background The Appointments Clause in Article II, Section 2, Clause 2 of the United States Constitution empowers the President of the United States to nominate and, with the confirmation (advice and consent) of the United States Senate, to appoint public officials, including justices of the United States Supreme Court. This clause, commonly known as the Appointments Clause, is one example of the system of checks and balances inherent in the Constitution. The president has the plenary power to nominate and to appoint, while the Senate possesses the plenary power to reject or confirm the nominee prior to their appointment.
Alexander Hamilton wrote about the way the Constitution allocates the power of appointment in The Federalist No. 76 (1778). The president, he asserted, should have the sole power to nominate because "one man of discernment is better fitted to analyze and estimate the peculiar qualities adapted to particular offices, than a body of men of equal, or perhaps even of superior discernment." And, requiring the cooperation of the Senate would, he contended, "have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to preventing the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity. In addition to this, it would be an efficacious source of stability in the administration."
Nomination Nominee selection White House staff members typically handle the vetting and recommending of potential Supreme Court nominees. In practice, the task of conducting background research on and preparing profiles of possible candidates for the Supreme Court is among the first taken on by an incoming president's staff, vacancy or not. As there was a Supreme Court vacancy at the time of the 2016 presidential campaign, advisors to then-candidate Donald Trump developed, and Trump made public, two lists of potential Supreme Court nominees.
Once a Supreme Court vacancy opens, the president discusses the candidates with advisors, Senate leaders and members of the Senate Judiciary Committee, as a matter of senatorial courtesy, before selecting a nominee. In doing so, potential problems a nominee may face during confirmation can be addressed in advance. This can also be an opportunity for senators to advise the president, though the president is not obliged to take their advice on whom to nominate, neither does the Senate have the authority to set qualifications or otherwise limit who the president may select.
As the president considers who to nominate, formal investigations into the backgrounds of prospective nominees are conducted. In recent decades this process has involved both an inquiry into the public record and professional credentials of persons under consideration, and an inquiry into the private background of potential candidates. The former is usually conducted by senior White House aides in consultation with the Justice Department. The latter is conducted by the Federal Bureau of Investigation. The goal of these inquiries is to ensure that a nominee has nothing in their background that would prove embarrassing or would otherwise put confirmation in jeopardy.
As the president prepares to announce their selection, a former senator of the president's party is selected to serve as the nominee's "sherpa", their guide through the process. When ready, the president publicly announces the selection, with the nominee present. Shortly thereafter, the nomination then is formally submitted to the Senate. Once that has been done, it is customary for a nominee to meet with senators while also preparing for confirmation hearings.
How quickly a president selects a nominee has varied from president to president and from instance to instance. For the 14 vacancies since 1975 that required only one nomination prior to being filled, the average length of time between the date it was publicly known that a justice was leaving the court (or had died) and the date on which the president publicly identified a nominee for the vacancy was about 19 days.
Criteria
The Appointments Clause does not set qualifications for being a Supreme Court justice (e.g. age, citizenship or admission to the bar) nor does it describe the intellectual or temperamental qualities that justices should possess. As a result, each president has had their own criteria for selecting individuals to fill Supreme Court vacancies. While specific motives vary from president to president and situation to situation, the motivations behind the choices made can be grouped into two general categories: professional qualifications criteria and politicalpublic policy criteria.
Most presidents have intentionally sought out nominees with solid legal qualifications, persons with a distinguished reputation or expertise in a particular area of the law, or who is highly regarded for their public service. As a result, many nominees have had prior experience as lower court judges, legal scholars, or private practitioners, or have served as Members of Congress, as federal administrators, or as governors. Even though neither the Constitution nor federal law requires that a Supreme Court justice be a lawyer, every person nominated to the Court to date has been.
Most presidents have nominated individuals who broadly share their political views or ideological philosophy. During the 20th century for example, Franklin D. Roosevelt chose people who he believed would affirm his New Deal programs. Similarly, John F. Kennedy and Lyndon B. Johnson chose people who they anticipated would support their respective New Frontier and Great Society initiatives. Ronald Reagan chose conservative jurists, people he believed would further his goal of undoing the activism of the Warren and Burger Courts.
On occasion, a justice's decisions may be contrary to what the nominating president anticipated. One such justice was David Souter, who was nominated by George H. W. Bush. When nominated, he was not well known and had no paper trail whatsoever. 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.
Throughout much of the nation's history, presidents also nominated individuals based upon geographical considerations. President George Washington established this practice, intentionally combining geography with his other considerations when making judicial and other appointments. Of his first six Supreme court appointments in 1789, two were from the East, two from the Mid-Atlantic and two from the South. From 1789 until 1971, with the exception of the 1865–76 Reconstruction Era, there was always a southerner on the Court; similarly, from 1789 through 1932 there was always a New Englander as well. Since the mid-1970s, however, the role of geography in the selection process has been minimal.
Beginning in the mid 20th Century, concerns about diversity on the Court with regard to religion, race, and gender have also been of particular importance to various presidents. In 1956, Dwight D. Eisenhower appointed William J. Brennan Jr., a Catholic, to the Court. Eisenhower sought a Catholic to appoint—in part because there had been no Catholic justice since 1949, and in part because Eisenhower was directly lobbied by Cardinal Francis Spellman of the Archdiocese of New York to make such an appointment. Lyndon B. Johnson, as part of his strategy to implement his civil rights agenda, appointed the first African-American justice, Thurgood Marshall, in 1967. Ronald Reagan pledged during his 1980 presidential campaign to nominate the first woman to the Supreme Court. In 1981, he nominated Sandra Day O'Connor.
An additional consideration is age; the younger the person, the longer they could conceivably serve on the Court. Presidents have generally selected persons who are in their late 40s or 50s, old enough to have the requisite experience yet young enough to impact the makeup of the court for decades.
Confirmation The Appointments Clause does not tell the Senate how to assess Supreme Court nominees. As a result, the Senate has developed, and modified over time, its own set of practices and criteria for examining nominees and their fitness to serve on the bench. Nominees are, generally speaking, examined on: character and competency; social and judicial philosophy; and partypolitical identification and region (of the country from).
Judiciary Committee
The Senate Judiciary Committee plays a key role in the confirmation process, as nearly every Supreme Court nomination since 1868 has come before it for review. Among the nominations since then that were not referred to the committee for review were those of: William Howard Taft, for chief Justice in 1921, and James F. Byrnes, for associate justice in 1941. Byrnes is the most recent Supreme Court nominee confirmed by the Senate without being reviewed first by a committee. Under the present procedures, the committee conducts hearings, examining the background of the nominee, and questioning him or her about their work experiences, views on a variety of constitutional issues and their general judicial philosophy. The committee also hears testimony from various outside witnesses, both supporting and opposing the nomination. Among them is the American Bar Association, which since 1952 has provided its analysis and a recommendation on each nominees' professional qualifications to sit on the Supreme Court.