Supreme Court Nominations Research Guide

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.

1. The President usually will consult with Senators before announcing a nomination.

2. When the President nominates a candidate, the nomination is sent to the Senate Judiciary Committee for consideration.

3. 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.

4. 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.

5. 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.

6. The full Senate debates the nomination.

7. The Senate rules used to allow unlimited debate (a practice known as filibustering) and to end the debate, it required the votes of 3/5 of the Senate or 60 senators (known as the cloture vote).  In April 2017, the Senate changed this rule and lowered the required votes to 51 to end debate on Supreme Court nominations (this is commonly known as "the nuclear option").

8. 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.

• George Watson, A Vacancy on the Court (Roberts Nomination to Present) 
• Final Action by the Senate on Supreme Court Nominations During Presidential Election Years (1789-2020) (Oct. 20, 2020) (CRS Insight No. 11519)
• Supreme Court Appointment Process: Senate Debate and Confirmation Vote (Oct. 16, 2020)(CRS Report No. R44234)
• Supreme Court Nominations, 1789 to 2018: Actions by the Senate, the Judiciary Committee, and the President (Oct. 9, 2020) (CRS Report No. RL33225)
• Supreme Court Appointment Process: President’s Selection of a Nominee (Sept. 28, 2020) (CRS Report No. R44245)
• Supreme Court Appointment Process: Consideration by the Senate Judiciary Committee (Sept. 22, 2020) (CRS Report No. R44236)
• Supreme Court Nomination: CRS Products (Aug. 31, 2018) (CRS Legal Sidebar No. LSB10160)
• Barry J. McMillion, Supreme Court Appointment Process: President's Selection of a Nominee (April 1, 2016) (CRS Report No. R44235)
• Barry J. McMillion, Supreme Court Appointment Process: Senate Debate and Confirmation Vote (Oct. 19, 2015) (CRS Report No. R44234)
• Barry J. McMillion, Supreme Court Appointment Process: Consideration by the Senate Judiciary Committee (Oct. 19, 2015) (CRS Report No. R44236)
• The Supreme Court Compendium: Data, Decisions & Developments (Lee Epstein et al. eds., 6th ed. 2015):  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."
  • CQ Press: The Supreme Court Compendium: Data, Decisions & Developments
  • Print edition: The Supreme Court Compendium: Data, Decisions & Developments, Call Number: Reference KF8742 .S914
• Denis Steven Rutkus & Maureen Bearden, Supreme Court Nominations, 1789 to the Present: Actions by the Senate, the Judiciary Committee, and the President (Dec. 7. 2012) (CRS Report No. Rl33225)
• The "Confirmation Process" and the "Selection Process" entries of Supreme Court A to Z. [Call Number: Reference KF8742 .A35 S8 2012]
• 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)
• R. Sam Garrett & Denis Steven Rutkus, Speed of Presidential and Senate Actions on Supreme Court Nominations, 1900-2010  (Aug. 6, 2010) (CRS Report No. RL33118)
• Denis Steven Rutkus, Supreme Court Appointment Process: Roles of the President, Judiciary Committee, and Senate (Feb. 19, 2010) (CRS Report No. RL31989)
• Betsy Palmer, Evolution of the Senate's Role in the Nomination and Confirmation Process: A Brief History (May 13, 2009) (CRS Report No. RL31948)
• 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) [Call Number: Stacks KF8742 .A72]. This work explains the appointment process in great detail, taking into consideration the political background of the time.
• Inside the Supreme Court: The Institutions and its Procedures (Susan Low Bloch, Vicki C. Jackson, Thomas G. Krattenmaker, 2008) [Call Number: Stacks KF8742 .B58]. This work has a chapter on the confirmation process.
• 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)

• 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.
  • U.S. Senate: Supreme Court Nominations Hearing
  • HeinOnline: Supreme Court of the U.S. Hearings and Reports on Successful and Unsuccessful Nominations of Supreme Court Justices by the Senate Judiciary Committee
• 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 from 1916 to 2010, 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 - 2010 (Roy M. Mersky and J. Myron Jacobstein compiled, 1975- 2010) [Call Number: Stacks KF8744 .J8, ceased in print]

According to Henry B. Hogue in his CRS Report, Supreme Court Nominations Not Confirmed, 1789-August 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:

• Supreme Court Nominations - Not Confirmed or Withdrawn (Library of Congress)
• Henry B. Hogue, Supreme Court Nominations Not Confirmed, 1789-August 2010 (Aug. 20, 2010) (CRS Report No. RL31171)
• David G. Savage, Pressures on the Justices, in 2 Guide to the U.S. Supreme Court 889 (5th ed. 2010). [Call Number: Reference KF8742 .W567 2010 v.2]
• John Massaro, Supremely Political: The Role of Ideology and Presidential Management in Unsuccessful Supreme Court Nominations (1990). [Call Number: Stacks KF8776 .M355 1990]