SCOTUS Nomination and Confirmation Process Explained

Many people know that the three branches of the United States government were created with the idea of checks and balances in mind. The Supreme Court, part of the judicial branch, evaluates the constitutionality of the laws created by the legislative branch and actions taken by the executive branch.

Although it possesses great power, the Supreme Court is unusual in that its members are not selected by any kind of public vote. Nomination power is given to the president by the "Appointments Clause" of the Constitution, a part of Article II.

How are Justices Chosen?

The Supreme Court is made up of nine members, each of whom serves for life or until retirement. Justices can only be removed from their positions through impeachment by the House of Representatives and the Senate. The reason for this long tenure is so that the justices can rule on a wide scope of issues without fear of political retribution or the loss of their jobs if their opinions are controversial either among the government or the public.

Nomination Process

Justices are nominated by the currently serving president of the U.S., typically after consultation with members of the Senate. Then, over the next several weeks, the Senate Judiciary Committee collects extensive background information about the candidate.

The committee then holds a series of hearings to discuss the candidate, their life and history, and hear from witnesses both for and against appointment of the nominee. Of course, the nominee is also questioned by the committee.

Following the hearing process, the Judiciary Committee then turns over the process to the Senate as a whole. The Judiciary Committee then chooses one of the following actions and communicates that decision to the Senate:

• recommend that nominee be appointed as a justice
• recommend that the nominee not become a justice
• not pass official judgment for or against the nominee.

Confirmation Process

The full Senate then holds debate on the subject of the nomination and whether the candidate should become a justice or not. It will then decide whether to hold a confirmation vote—essentially, this is a decision on whether or not to vote. Fifty-one of the 100 senators must vote yes in order for the confirmation vote to take place.

Once the final voting process is initiated, a simple majority of the Senate (51 votes) must vote in favor of the candidate in order for them to be confirmed as a justice.

How Long Does the Process Take?

While no prospective justice's nomination is exactly like another's, the Congressional Research Service has reported that the average length of the process since the 1970s has been 2.2 months.

Since the Court's foundation, a total of 164 people have been nominated to it, and all but 37 have been confirmed. The most justices nominated during any presidential administration was President George Washington's 14.

Can Justices Be Nominated in Election Years?

During the Trump administration, Justices Gorsuch, Kavanaugh, and Barrett joined the Supreme Court. President Obama nominated three candidates, of whom two became members of the Court: Justices Kagan and Sotomayor.

His third nominee was Merrick B. Garland, who was nominated in March 2016, eight months before the end of Obama's second term as president. Republican leadership strongly opposed the nomination under the claim that it was not "fair" to replace a justice eight months before a new president would be elected.

There is no official rule or regulation stating that justices cannot be nominated during an election year, though sometimes the action can draw accusations of an attempt to "pack the courts." This refers to a president filling vacant seats with judges and justices who share the president's political ideas, thereby ensuring influence by that political party for years to come.

The average number of nominees during any given administration can vary greatly, since the appointment is for life or until retirement. All but three presidents, however, have nominated at least one person to the Court. There have not yet been any vacancies during the Biden administration.

Related Resources:

• United States Supreme Court Justices (FindLaw's US Supreme Court Center)
• A Brief History of the Supreme Court (FindLaw's US Supreme Court Center)
• Supreme Court Insights (FindLaw's US Supreme Court Center)