The death of Justice Ruth Bader Ginsburg has left the U.S. Supreme Court short-handed as it began its new term on Oct. 5 with only eight justices on the bench. The 87-yea-old was an icon for women’s rights and spent nearly three decades on the bench. But with less than 30 days until the next presidential election, the question remains whether a new Supreme Court nominee will receive a vote before November.
Nomination and confirmation of Supreme Court justices are governed by Article 2 of the U.S. Constitution. Candidates are nominated by the president and face a series of hearings and interviews before the Senate Judiciary Committee. The Senate Judiciary Committee can vote to send the nomination to the Senate, which then must confirm the nominee. The nominee is then appointed to the Court by the president. Confirming justices to the U.S. Supreme Court 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.
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.
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 a neutral recommendation.
Step 4: The Senate Debates and Votes on Confirmation
A simple majority vote by the Senate is required to confirm or reject a nominee. Of the 37 unsuccessful Supreme Court nominations since 1789, only 11 nominees have been rejected in a Senate vote, the most recent in 1987 when the Senate refused to confirm Robert Bork. If the Senate rejects the nominee, the process starts all over again and the president must pick another nominee.
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.
Will Ruth Bader Ginsburg’s Seat Be Filled by Election Day?
It depends. Republican Senate Majority Leader Mitch McConnell has stated that the Senate should vote to fill the vacancy before the election. The Senate Judiciary Committee announced that it would open a confirmation hearing for President Donald Trump’s Supreme Court nominee, Amy Coney Barrett, on Oct. 12, 22 days before Election Day on Nov. 3. However, even if a justice is not appointed prior to the election, Republicans would still control both the White House and the Senate until a new Congress takes office in January 2021.
According to the Congressional Research Service, since 1975 the average number of days from nomination to final Senate vote is 67 days, while the median is 71 days.
The Supreme Court’s 2020-2021 term began on Oct. 5. The Court is scheduled to hear arguments on the future of the Affordable Care Act in November. Other issues the Court may be asked to decide include whether the census can be ended before it is complete and whether challenges to voting restrictions are constitutional. The Court may also be asked to decide any election-related disputes. As the Court is currently made up of three Democrat-appointed justices and five Republican-appointed justices, the next nominee to the Supreme Court has the power to shift its ideology.
Has This Situation Happened Before?
In U.S. presidential election years, there have been 16 Supreme Court vacancies that occurred before Election Day. Justice Ginsburg died 46 days before the presidential election. There has only been one other vacancy that happened closer to the election: Chief Justice Roger Taney died on Oct. 12, 1864, 27 days before Election Day. Interesting enough, his replacement, Justice Salmon Chase, was nominated and confirmed on the same day in 1864 after Abraham Lincoln’s reelection.
Since 1900, there have been several instances of nomination and confirmation of justices during presidential election years.
On Jan. 28, 1916, President Woodrow Wilson nominated Louis Brandeis to replace Joseph Rucker Lamar, who died on Jan. 2, 1916. Brandeis was confirmed on June 1, 1916.
On July 14, 1916, President Wilson nominated John Clarke to replace Charles Evans Hughes, who resigned from the Court. Clarke was confirmed on July 24, 1916.
On Apr. 30, 1888, President Grover Cleveland nominated Melville Fuller to replace Morrison Waite, who died on March 23, 1888. Fuller was confirmed on July 20, 1888.
On Nov. 30, 1987, President Ronald Reagan nominated Justice Anthony Kennedy to replace Louis Powell, who had retired. Kennedy was confirmed on Feb. 3, 1988.
There have been three instances where presidents were not able to nominate and confirm a justice prior to Election Day.
On Oct. 15, 1956, Sherman Minton retired from the Court. As the Senate had already adjourned, President Dwight D. Eisenhower appointed William J. Brennan in a recess appointment. Brennan was not formally nominated and confirmed until 1957.
In 1968, President Lyndon B. Johnson sought to nominate Abe Fortas to succeed Chief Justice Earl Warren. Fortas was already an associate justice on the Court. Fortas’ nomination was filibustered, mainly due to ethical questions about Fortas and the Warren Court’s liberalism. Fortas was not confirmed as the chief justice; however, since Chief Justice Warren remained on the bench, the Court was never short a justice.
On March 16, 2016, President Barack Obama nominated Merrick Garland to succeed Antonin Scalia, who had died one month earlier. The Senate majority leader stated that the next Supreme Court Justice should be chosen by the president who was to be elected later that year. The 11 members of the Senate Judiciary Committee’s Republican majority refused to conduct hearings that would have advanced the vote to the full Senate. Garland’s nomination expired on Jan. 3, 2017, with the close of Congress.
About the Author
Shanna Lisberg. Shanna is an attorney who lives and works in Seattle. She can be reached at selisberg@gmail.com.
