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The power to appoint Supreme Court justices belongs exclusively to the President of the United States, according to U.S. Constitution. Supreme Court nominees, after being selected by the president must be approved by a simple majority vote (51 votes) of the Senate.
Under Article II of the Constitution, the President of the United States alone is empowered to nominate Supreme Court Justices and the U.S. Senate is required to confirm those nominations. As the Constitution states, “he the president shall nominate, and by and with the Advice and Consent of the Senate, shall appoint… Judges of the supreme Court… ”
The requirement for the Senate to confirm the president's nominees for Supreme Court Justices and other high-level positions enforces the concept of checks and balances of powers between the three branches of government envisioned by the Founding Fathers.
Several steps are involved in the appointment and confirmation process for Supreme Court justices.
Working with his or her staff, new presidents prepare lists of possible Supreme Court nominees. Since the Constitution does not set any qualifications for service as a Justice, the President may nominate any individual to serve on the Court.
After being nominated by the president, candidates are subjected to a series of often politically partisan hearings before the Senate Judiciary Committee composed of lawmakers from both parties. The committee may also call other witnesses to testify regarding the suitability and qualifications of the candidate to serve on the Supreme Court.
- As soon as the president's nomination is received by the Senate, it is referred to the Senate Judiciary Committee.
- The Judiciary Committee sends the nominee a questionnaire. The questionnaire requests the nominee's biographical, financial and employment information, and copies of the nominee's legal writings, opinions issued, testimony and speeches.
- The Judiciary Committee holds a hearing on the nomination. The nominee makes an opening statement and then answers questions from the Committee members. The hearing can take several days and the questioning can become politically partisan and intense.
- After the hearing is completed, Committee members are given one week to submit written follow-up questions. The nominee submits written responses.
- Finally, the Committee votes on the nomination. The Committee can vote to send the nomination to the full Senate with a recommendation of either approval or rejection. The Committee can also vote to send the nomination to the full Senate without a recommendation.
The Judiciary Committee's practice of conducting personal interviews of Supreme Court nominees did not bein until 1925 when some senators were concerned about a nominee's ties to Wall Street. In response, the nominee himself took the unprecedented action of asking to appear before the Committee to answer-while under oath-the senators' questions.
Once largely unnoticed by the general public, the Senate's Supreme Court nominee confirmation process now attracts considerable attention from the public, as well as influential special-interest groups, which often lobby senators to confirm or to reject a nominee
Consideration by the Full Senate
- After receiving the recommendation of the Judiciary Committee, the full Senate holds its own hearing and debates the nomination. The Chairman of the Judiciary Committee leads the Senate hearing. The senior Democratic and Republican members of the Judiciary Committee lead their party's questioning. The Senate hearing and debate typically take less than a week.
- Finally, the full Senate will vote on the nomination. A simple majority vote of the Senators present is required for the nomination to be confirmed.
- If the Senate confirms the nomination, the nominee usually goes directly to the White House to be sworn in. The swearing in is typically conducted by the Chief Justice. If the Chief Justice is not available, any Supreme Court Justice can administer the oath of office.
How Long Does All of This Usually Take?
According to records compiled by the Senate Judiciary Committee, it takes an average of 2-1/2 months for a nominee to reach a full vote in the Senate.
Before 1981, the Senate typically acted swiftly. From the administrations of Presidents Harry Truman through Richard Nixon, justices were typically approved within one month. However, from the Ronald Reagan administration to the present, the process has grown far longer.
Since 1975, the average number of days from nomination to final Senate vote has been 2.2 months, according to the independent Congressional Research Service. Many legal experts attribute this to what Congress perceives to be the increasingly political role of the Supreme Court. This “politicization” of the court and the Senate confirmation process has drawn criticism. For example, columnist George F. Will called the Senate's 1987 rejection of Robert Bork's nomination “unjust” and argued that the nomination process does "not delve deeply into the nominee's jurisprudential thinking."
Today, Supreme Court nominations spur media speculation about the conservative or liberal leanings of potential justices. One indication of the politicization of the confirmation process is how much time each nominee spends being questioned. Before 1925, nominees were rarely if ever questioned. Since 1955, however, every nominee has been required to testify before the Senate Judiciary Committee. In addition, the number hours nominees spend being questioned has increased from single digits before 1980 to double digits today. In 2018, for example, the Judiciary Committee spent 32 grueling hours questioning Brett Kavanaugh before confirming him, voting along political and ideological lines.
How Many Nominations are Confirmed?
Since the Supreme Court was established in 1789, presidents have submitted 161 nominations for the Court, including those for chief justice. Of this total, 124 were confirmed, including 7 nominees who decline to serve.
About Recess Appointments
Presidents may and have also placed justices on the Supreme Court using the often-controversial recess appointment process.
Whenever the Senate is in a recess, the president is allowed to make temporary appointments to any office requiring Senate approval, including vacancies on the Supreme Court, without the Senate's approval.
Persons appointed to the Supreme Court be a recess appointment are allowed to hold their positions only until the end of the next session of Congress - or for a maximum of two years. In order to continue to serve afterward, the nominee must be formally nominated by the president and confirmed by the Senate.