The procedure for appointing a Justice to the Supreme Court is provided for in the U.S. Constitution in only a few words. The “Appointments Clause” in the Constitution (Article II, Section 2, clause 2) states that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … Judges of the supreme Court.” While the process of appointing Justices has undergone some changes over two centuries, its most essential feature—the sharing of power between the President and the Senate—has remained unchanged: To receive lifetime appointment to the Court, one must first be formally selected (“nominated”) by the President and then approved (“confirmed”) by the Senate.
For the President, the appointment of a Supreme Court Justice can be a notable measure by which history will judge his presidency. For the Senate, a decision to confirm is a solemn matter as well, for it is the Senate alone, through its “Advice and Consent” function, without any formal involvement of the House of Representatives, that acts as a safeguard on the President’s judgment. This report provides information and analysis related to the final stage of the confirmation process for a nomination to the Supreme Court—the consideration of the nomination by the full Senate, including floor debate and the vote on whether to approve the nomination.
Traditionally, the Senate has tended to be less deferential to the President in his choice of Supreme Court Justices than in his appointment of persons to high executive branch positions. The more exacting standard usually applied to Supreme Court nominations reflects the special importance of the Court, coequal to and independent of the presidency and Congress. Senators are also mindful that Justices—unlike persons elected to legislative office or confirmed to executive branch positions—receive the opportunity to serve a lifetime appointment during good behavior.
The appointment of a Supreme Court Justice might or might not proceed smoothly. From the appointment of the first Justices in 1789 through its consideration of nominee Brett Kavanaugh in 2018, the Senate has confirmed 119 Supreme Court nominations out of 163 received. Of the 44 nominations which were not confirmed, 12 were rejected outright in roll-call votes by the Senate, while nearly all of the rest, in the face of substantial committee or Senate opposition to the nominee or the President, were withdrawn by the President, or were postponed, tabled, or never voted on by the Senate. Six of the unconfirmed nominations, however, involved individuals who subsequently were renominated and confirmed.
“Supreme Court Appointment Process: Senate Debate and Confirmation Vote,” CRS Report R44234, October 16, 2020 (32-page PDF)
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