An Explainer: The U.S. Supreme Court Nomination Process

The Role of the U.S. Supreme Court

• Serves as the highest court in the Nation. It’s the last resort for those looking for justice.
• Ensures that each branch of government recognizes the limits of its own power
• Protects civil rights and liberties by striking down laws that violate the Constitution
• Sets appropriate limits on the government by ensuring that popular majorities cannot pass laws that harm and/or take undue advantage of unpopular minorities

The U.S. Supreme Court was designed to be apolitical. The Court has power neither over the sword (military) nor the purse (the budget). Its authority relies on the trust of the people and it is meant to be above politics. It is designed to correct the populace when we go astray and stop society from its own impulses to violate our laws and Constitution.

U.S. Supreme Court Justice Seats

In its history, the court has had as few as five seats and as many as ten.

There are currently nine seats on the U.S. Supreme Court, one Chief Justice and eight Associate Justices. With the passing of Justice Ruth Bader Ginsberg, there is an open seat for an Associate Justice.

Like all federal judges, Supreme Court Justices are appointed by the President and confirmed by the Senate. U.S. Supreme Court Justices are appointed for life.

Nomination and Confirmation Process of a U.S. Supreme Court Justice

The U.S. Constitution (Article 2, 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…” So, what does that process actually look like?

1. The President nominates a candidate to the Supreme Court.
2. The nomination is sent to the Senate Judiciary Committee for consideration.
3. The Committee collects records about the nominee from the FBI and other sources to prepare for the hearing. This process usually takes about a month.
4. The Senate Judiciary Committee then holds a hearing on the nominee, during which:
   — Witnesses, supporting and opposing, present their views
   — Senators question the nominee on their qualifications, judgements & philosophy
5. The Judiciary Committee votes on the nomination, sending its recommendation to the full Senate.
   — This recommendation will either be that the nominee should be confirmed or rejected. Alternatively, no recommendation may be given.
6. The full Senate debates the nomination.
   — Debate can be blocked or halted by a vote of 51 (of 100) Senators. This is commonly known as “the nuclear option”
7. The full Senate votes on the nomination once debate has ended or has been stopped.
   — A simple majority of Senators present and voting is required for a confirmation
   — If there is a tie, the Vice President casts the deciding vote.

Duration of a Nomination and Confirmation Process

Since 1975, the average number of days from nomination to final a vote in the Senate is around 69.5 days, according to the Congressional Research Service. This calculation doesn’t include Justice Brett Kavanaugh who took 89 days to confirm.

This time allows for proper vetting, research, debate and consideration.

Who Is Merrick Garland?

Merrick Garland was nominated to the U.S. Supreme Court in March of 2016 by then-President Barack Obama.

In February 2016, Justice Scalia passed away leaving an open seat on the Court.

Hours after his death, Senate Majority Leader Mitch McConnell announced that any nomination by then-President Obama would be null and void. Eleven Republican members of the Senate Judiciary Committee signed a letter stating they wouldn’t hold a hearing before the next President was inaugurated, which would be almost a year later.

In March 2016, President Obama nominated Merrick Garland to the U.S. Supreme Court. The Senate Judiciary Committee refused to hold any hearings on the nomination despite the fact that the election was seven and a half months away.The U.S. Supreme Court reconvened in October 2016 with only eight Justices, deadlocking several cases in 44 decisions.

The refusal to hold hearings had never happened before in our country’s history, and became known as The Merrick Garland Precedent.

Why Is Merrick Garland Relevant Right Now?

On Friday, September 18, 2020, Justice Ruth Bader Ginsberg passed away from complications due to cancer. She was 87 years old.

Hours after her passing, Senate Majority Leader Mitch McConnell publicly vowed that a Justice would be confirmed to the Court before the 2020 Election. At the time of the statement, Election Day was 46 days away, and voting was already underway in several states.

In 2016, Senate Majority Leader Mitch McConnell (along with other prominent Republicans such as Senator Lindsay Graham, who chairs the Senate Judiciary Committee) insisted that Supreme Court vacancies should never be filled in an election year.

This argument was used to block the confirmation process of Merrick Garland, who was nominated in March of 2016, more than seven months from the 2016 General Election.

Now, in 2020, Senator Mitch McConnell has vowed to confirm a Justice with just over 1.5 months until Election Day, and with voters actively voting in several states.

The position demonstrates a major reversal of his and others position in 2016 — the Merrick Garland Precedent — a manipulation of the process, and a politicization of the court, which is designed to be an impartial, apolitical, arbiter of law and the Constitution.

With Republican Senators controlling the Senate, the confirmation process will largely be in their hands if President Trump makes a nomination before the Election.

The Power of the Next President

The next President of the United States of America will likely nominate between one and three Supreme Court Justices. Justices are appointed for life and with nine seats on the Court, the next President will have enormous power over the future of the Court for decades to come.