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April 3, 2017

From Nomination to Confirmation: The U.S. Supreme Court Confirmation Process

by WSBA
Neil Gorsuch
Confirming justices to the U.S. Supreme Court involves several steps. Here’s how the confirmation process works.

Neil Gorsuch and wifeMore than a year after the death of U.S. Supreme Court Justice Antonin Scalia, the Senate Judiciary Committee has finally completed confirmation hearings to fill the vacancy, and the full Senate is poised to vote amid threat of filibuster. President Trump’s Supreme Court nominee Neil Gorsuch began his confirmation hearing on March 20. The procedure for nominating and confirming justices to the Supreme Court of the United States involves several steps. Here’s how the confirmation process works.

Step 1 – The president selects a nominee and refers the nominee to the Senate Judiciary Committee
As the Constitution does not set any qualifications for service as a justice, the president may nominate any individual to serve on the highest court. Once the president makes a nomination, the nominee is referred to the Senate Judiciary Committee. The committee then sends the nominee a questionnaire, which often runs hundreds of pages long. Among other items, the nominee must list things such as previously represented clients, key cases he or she has been involved in, publications, media interviews, speaking fees, and travel destinations.

Step 2 – The Senate Judiciary Committee conducts a hearing
Both the nominee and all 20 members of the Senate Judiciary Committee can make opening statements. The nominee can then be questioned on his or her qualifications, decisions as a judge, legal philosophy, and interpretations of the Constitution, for example. The committee can call witnesses, in support or opposition.

The committee’s practice of personally interviewing nominees is fairly recent. The first nominee to be interviewed was Harlan Fiske Stone in 1925. Stone’s Wall Street ties were a concern to some senators, so Stone volunteered to appear before the Senate Judiciary Committee to answer questions. The next nominee to appear before the committee was Felix Frankfurter in 1938. Due to some opposition to Frankfurter’s nomination, the committee asked him to appear in person to address allegations against him.

It wasn’t until John Marshall Harlan II’s confirmation in 1955 that the committee began questioning nominees on their judicial views. Harlan’s nomination came shortly after the landmark decision of Brown v. Board of Education, and, believing that Harlan would support desegregation and civil rights, several Southern senators attempted to block Harlan’s confirmation. Harlan appeared before the Senate Judiciary Committee to answer questions relating to his judicial views, and every Supreme Court nominee since has been questioned by the committee before confirmation.

Step 3 – The committee votes and the nomination goes to the full Senate
The Senate Judiciary Committee then reports the nominee to the full Senate. The committee can submit the nomination with a positive recommendation, a negative recommendation, or neutral recommendation. Of the 15 most recent nominations, 13 were reported favorably. Robert Bork was reported unfavorably in 1987, and Clarence Thomas was reported with a neutral recommendation in 1991.

Step 4 – The Senate debates and votes on confirmation
A majority vote by the Senate is required to confirm or reject a nominee. Senators who oppose the nomination can choose to filibuster. To stop the filibuster, a supermajority of 60 votes, known as a cloture vote, is needed. This would stop the filibuster and force a final vote on confirmation. While no nomination for associate justice has ever been filibustered, President Lyndon B. Johnson’s nomination of sitting Justice Abe Fortas to succeed Chief Justice Earl Warren as chief justice was successfully filibustered in 1968.

There have also been times when the president has withdrawn a nominee’s name before the actual confirmation vote occurs. Most recently, President George W. Bush withdrew his nomination of Harriet Miers before committee hearings began. Ultimately, if the Senate rejects the nominee, the process starts all over again, and the president must pick another nominee. As of 2010, 12 Supreme Court nominees have been rejected by the Senate, the most recent in 1987 when the Senate refused to confirm Robert Bork.

Step 5 – The nominee is sworn in
If the Senate confirms the nomination, the nominee is sworn in and appointed as a Supreme Court justice. The Constitution provides that justices shall hold their offices during good behavior, which is understood to mean they may serve on the Court for life.

The Senate Judiciary Committee has concluded its hearing on Neil Gorsuch’s nomination, and a final vote on Gorsuch’s nomination could happen this Friday, April 7. Many Democrats, including Washington Sen. Patty Murray, have announced plans to filibuster Gorsuch. Republicans hold only 52 seats in the Senate, and 41 Democratic senators pledge to filibuster the vote, making it unlikely that Republicans will have enough votes for cloture. They do, however, have the votes to choose the “nuclear option,” which could change current rules to disallow filibusters against Supreme Court nominees and allow Gorsuch’s confirmation to proceed on a simple majority vote.

Republicans hope to have Gorsuch confirmed by April 7, when a two-week congressional recess is scheduled to begin.

Read more from Constitutional Law, News

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