Nomination and confirmation to the Supreme Court of the United States
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.
[6] 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.
[7] 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.
[16] 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.
Similarly, John F. Kennedy and Lyndon B. Johnson chose people who they anticipated would support their respective New Frontier and Great Society initiatives.
[18] Ronald Reagan chose conservative jurists, people he believed would further his goal of undoing the activism of the Warren and Burger Courts.
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.
[23][24] Lyndon B. Johnson, as part of his strategy to implement his civil rights agenda, appointed the first African-American justice, Thurgood Marshall, in 1967.
[5] 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 party / political identification and region (of the country from).
[30] 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.
[29][34] The committee did not hold hearings on another Supreme Court nominee until February 1916, when intense opposition arose against the nomination of Louis Brandeis to become an associate justice.
Stone proposed what was then the novelty of appearing before the Judiciary Committee to answer questions; his testimony helped secure a confirmation vote with very little opposition.
[30] This, according to Robert Katzmann, "reflects in part the increasing importance of the Supreme Court to interest groups in the making of public policy."
[19] The table below notes the approximate number of hours that media sources estimate Supreme Court nominees since 2005 (excluding those whose nomination was withdrawn) have spent before the Senate Judiciary Committee for public testimony.
This rarely needed parliamentary procedure was used to move the nomination in 2022 of Ketanji Brown Jackson forward, when the committee deadlocked along party lines in a vote on whether to give it a favorable recommendation.
This occurred most recently with President George W. Bush's nomination of Harriet Miers in 2005 to succeed Sandra Day O'Connor, who had announced her intention to retire.
For example, it did not act upon President Dwight Eisenhower's first nomination of John Marshall Harlan II in November 1954, as it was made one month prior to the adjournment of the 83rd Congress.
[57] Most recently, the committee, led at the time by Republicans, did not hold hearings on Democratic President Barack Obama's 2016 nomination of Merrick Garland.
Citing the upcoming 2016 presidential election and Obama's Lame duck status, Senate Majority Leader Mitch McConnell declared at the time that the vacancy should be filled by the next president.
"[73] Article II, Section 2, Clause 3 of the Constitution empowers the president to fill critical federal executive and judicial branch vacancies unilaterally but temporarily when the Senate is in recess, and thus unavailable to provide advice and consent.
Through the late 1800s, the Senate was in recess for long periods of time, and so this clause enabled the president to keep the functions of government running in the meantime, but without completely bypassing the system of checks and balances.
[75][76] Though Supreme Court nominations have historically been intertwined with the political battles of the day,[78] there is a perception that the confirmation process has become more partisan over the past several decades.
[19] The subsequent contentious confirmation hearings for Clarence Thomas and Brett Kavanaugh, in 1991 and 2018 respectively, along with the Senate's refusal to consider the nomination of Merrick Garland in 2016, underscored the breadth of the partisan divide.
[78][80] Much of the proceedings around the hearings for Ketanji Brown Jackson in 2022 focused on those prior battles and which party should be blamed for politicizing the confirmation process.
The Framers of the Constitution chose good behavior tenure to limit the power to remove justices and to ensure judicial independence.
[87][88] The only justice ever to be impeached was Samuel Chase in 1804, after he openly criticized President Thomas Jefferson and his policies to a Baltimore grand jury.
The shortest period of time between vacancies occurred in September 1971, when Hugo Black and John Marshall Harlan II left within days of each other.
[95] Variables such as age, tenure, health, potential longevity and personal finances impact retirement decisions, as do considerations about whether the incumbent president—who would appoint their successor were they to retire—shares their legal-policy preferences.
The longest vacancy lasted 841 days, from the death on April 21, 1844, of Henry Baldwin until August 10, 1846, when Robert C. Grier was sworn into office to replace him.
