Article II section 2 of the Constitution states that the Presidents "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint ... Judges of the Supreme Court..." U.S. Const. art. 2 § 2, cl. 2.
The President usually will consult with Senators before announcing a nomination.
When the President nominates a candidate, the nomination is sent to the Senate Judiciary Committee for consideration.
The Senate Judiciary Committee holds a hearing on the nominee. The Committee usually takes a month to collect and receive all necessary records, from the FBI and other sources, about the nominee and for the nominee to be prepared for the hearings.
During the hearings, witnesses, both supporting and opposing the nomination, present their views. Senators question the nominee on his or her qualifications, judgment, and philosophy.
The Judiciary Committee then votes on the nomination and sends its recommendation (that it be confirmed, that it be rejected, or with no recommendation) to the full Senate.
The full Senate debates the nomination.
The Senate rules allow unlimited debate (a practice known as filibustering). To end the debate, it requires the votes of 3/5 of the Senate or 60 senators (known as the cloture vote).
When the debate ends, the Senate votes on the nomination. A simple majority of the Senators present and voting is required for the judicial nominee to be confirmed. If there is a tie, the Vice President who also presides over the Senate casts the deciding vote.
Resources on the Nomination Process:
- Barry J. McMillion, Supreme Court Appointment Process: President's Selection of a Nominee (April 1, 2016) (CRS Report No. R44235)
- Denis Steven Rutkus, Supreme Court Appointment Process: Roles of the President, Judiciary Committee, and Senate (Feb. 19, 2010) (CRS Report No. RL31989)
- Barry J. McMillion, Supreme Court Appointment Process: Consideration by the Senate Judiciary Committee (Oct. 19, 2015) (CRS Report No. R44236)
- Richard S. Beth & Betsy Palmer, Supreme Court Nominations: Senate Floor Procedure and Practice, 1789-2011 (March 11, 2011) (CRS Report No. RL33247)
- Denis Steven Rutkus, Questioning Supreme Court Nominees About Their Views on Legal or Constitutional Issues: A Recurring Issue (June 23, 2010) (CRS Report No. R41300)
- Barry J. McMillion, Supreme Court Appointment Process: Senate Debate and Confirmation Vote (OCt. 19, 2015) (CRS Report No. R44234)
- R. Sam Garrett & Denis Steven Rutkus, Speed of Presidential and Senate Actions on Supreme Court Nominations, 1900-2010 (CRS Report No. RL33118)
- The "Confirmation Process" and the "Selection Process" entries of Supreme Court A to Z. [KF8742 .A35 S8]
- The "Selection of Justices" and the "Appointment and Removal Power" entries of Oxford Companion to The Supreme Court of the United States (Kermit L. Hall, James W. Ely, Jr., Joel B. Grossman, 2d ed., 2005) [KF8742 .A35 O93]
- A Vacancy on the Court (by Professor George Watson, Arizona State University)
- Henry J. Abraham, Justices, Presidents, and Senators: A History of the U.S. Supreme Court Appointments from Washington to Bush II (5th rev. ed., 2008) [KF8742 .A72]. This work explains the appointment process in great detail, taking into consideration the political background of the time.
- The Supreme Court Compendium: Data, Decisions & Developments (Lee Epstein et al. eds., 6th ed., 2012) [WMS REF KF8742 .S914]. This is a collection of compilations and charts of information on most important aspects of the U.S. Supreme Court, including its development as an institution, the justices' backgrounds, nominations, and confirmations. It has a section on "The Justices: Backgrounds, Nominations, and Confirmations" which includes twenty tables with information such as "Supreme Court Nominees and the Vacancies To Be Filled," "Senate Action on Supreme Court Nominees," "Confirmation Factors, 1953-2006," "Appointment Anomalies," "ABA Qualification Ratings 1956-2006," and "Senate Action on Supreme Court Nominees."
- Inside the Supreme Court: The Institutions and its Procedures (Susan Low Bloch, Vicki C. Jackson, Thomas G. Krattenmaker, 2008) [KF8742 .B58]. This work has a chapter on the confirmation process.
Nomination Hearings of the Justices
- The first published report of Judicial Committee public hearings was that of the nomination hearings of Louis D. Brandeis in 1916. For a complete reprint of documents since 1916, check:
- The Supreme Court of the United States: Hearings and Reports on Successful and Unsuccessful Nominations of Supreme Court Justices by the Senate Judiciary Committee, 1916 - (Roy M. Mersky and J. Myron Jacobstein compiled, 1975- ) [KF8744 .J8]
- Senate Committee on the Judiciary: Supreme Court Nomination Hearings (1971-forward)
Hearing transcripts of the following nominations are made available in their entirety by GPO Access: Elena Kagan, Sonia Sotomayor, Samuel A. Alito, Jr.John G. Roberts, Jr., Stephen G. Breyer, Ruth Bader Ginsburg, Clarence Thomas, David H. Souter, Anthony M. Kennedy, William Hubbs Rehnquist, to be Chief Justice of the United States, Anthony Scalia, Sandra Day O'Connor, John Paul Stevens, and Williams H. Rehnquist and Lewis F. Powell Jr.
According to Henry B. Hogue (see his CRS Report dated August 20, 2010), there were 160 presidential nominations to the Court between 1789 and 2010, 36 nominations failed to win confirmation from the Senate. The 20th Century saw six confirmation failures, and they were: John J. Parker nominated by President Hoover in 1930, Abe Fortas nominated to be Chief Justice by President Lyndon Johnson in 1968, Homer Thornberry nominated by President Lyndon Johnson in 1968, Clement F. Haynsworth Jr. nominated by President Nixon in 1969, G. Harrold Carswell by President Nixon in 1970, Robert H. Bork by President Reagan in 1987, John G. Roberts, Jr ., nominated by President George W. Bush in 2005 (his nomination to Associate Justice was withdrawn so that President Bush could nominate him to be Chief Justice) and Harriet E. Miers, also nominated by President Bush in 2005.
The following resources suggest the reasons behind failed confirmations as well as charts listing brief information for all the failed confirmations: