The Supreme Court justice nomination process explained
The flag-draped casket of Justice Ruth Bader Ginsburg lies in state in the U.S. Capitol on Friday, Sept. 25, 2020. Ginsburg died at the age of 87 on Sept. 18 and is the first women to lie in state at the Capitol. (Erin Schaff/The New York Times via AP, Pool)
With the passing of Justice Ruth Bader Ginsburg on Sept. 18, 2020, and the president’s nomination of Amy Coney Barrett, many questions have been posed concerning the process of appointing a new justice.
“My most fervent wish is that I will not be replaced until a new president is installed,” said Ginsburg days before her death.
Supreme Court justices do not hold an elected office. Instead, they are nominated and confirmed by the Executive and Legislative branches to hold lifetime tenure.
The nomination and confirmation of a new justice is a simple process. The president nominates someone for the vacancy, and the Senate votes to confirm the nominee, requiring a simple majority for it to pass.
Concerning the appointment of justices, the Constitution of the United States says, “he [the Commander in Chief] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers, and Consuls, Judges of the Supreme Court, and all other officers of the United States, whose Appointments are not herein otherwise provided for.”
The Founding Fathers left the Federal Judiciary structure primarily to the discretion of those who serve in Congress.
According to the White House website, “the Constitution does not stipulate the number of Supreme Court Justices; the number is set instead by Congress. There have been as few as six, but since 1869 there have been nine Justices, including one Chief Justice.”
All Justices are nominated by the president, confirmed by the Senate and hold their offices under life tenure.
According to the Supreme Court website, “the Constitution does not specify qualifications for Justices such as age, education, profession, or native-born citizenship. A Justice does not have to be a lawyer or a law school graduate, but all Justices have been trained in the law.”
While the process is simple, it is time-consuming and grueling for all involved.
The nominee, once announced by the president, must endure scrutiny from lawmakers and civilians.
Once the president names a nominee, the Senate begins the hearing process. The nominee must submit to an exhaustive questionnaire that details their entire professional and personal history.
Once the nominee finishes the initial questioning, the FBI then begins conducting a background check on the nominee while the Judiciary Committee begins an independent background investigation.
While having their professional and personal lives examined, the nominee will also begin having one-on-one private meetings with senators.
During these meetings, the nominee begins to grasp what is important to the senators, and the senators begin judging the nominee’s qualifications and competency.
Then, the public Judiciary Committee hearings begin. The hearings are conducted by the 22 members of the Senate Judiciary Committee.
During the hearings, the Judiciary Committee will ask the nominee unspecific questions to gauge how they would react to cases that may come before the Supreme Court.
The questions are purposefully unspecific because if the Committee asks the nominee direct questions, they risk recusing the nominee if the issue is brought to the Supreme Court.
The nominee must remain impartial during the hearings to avoid the possibility of recuse in the future.
Once the hearings have concluded, the Judiciary Committee will then vote to send the nominee to the Senate. The Judiciary Committee is only required to garner a majority vote to send the nominee to the Senate. However, history shows that even if the vote fails in the Judiciary Committee, the nominee is still sent to be voted by the Senate.
Once the nominee reaches the Senate, only a simple majority is required to appoint the nominee to the Supreme Court.
In the case of a tie, the vice president casts the decisive vote.
For more information about the Supreme Court of the United States and the nomination process, click here.
