Supreme Court Appointment Process

What the Constitution says about the Supreme Court

The U.S. Constitution does not say much about the Supreme Court. Aside from a few lines in Article III, Sections 1 and 2 (see excerpt below), specific details about the court are in short supply. The Constitution says nothing about a nine-justice court, nor does it specify the size of the court. In fact, over time, the Supreme Court has had as many as ten justices and as few as six. And while Supreme Court Justices serve lifetime appointments on the bench today, there is nothing written in the Constitution that explicitly states justices are to serve a lifetime on the bench.

Qualifications for Supreme Court Justices

While the Constitution provides insight on the appointment of Supreme Court Justices, it does not explain how a candidate is selected. In the past, the Justice Department has recommended Supreme Court judges. Other times, prospective judges maintained personal relationships with the president or shared the president's political beliefs.

Lobbyists may also influence the president to nominate a particular candidate representing their interests. Despite this, the Supreme Court is designed to be, to a certain extent, independent and resistant to political pressure. The life tenure granted to Supreme Court Justices is designed so that justices are not swayed by the interests of the president that nominated them.

Nomination

Supreme Court Justices are nominated by the standing president and confirmed by the Senate. The president initiates the nomination process by selecting a candidate. To find a viable candidate, the president may seek advice or recommendations from the Senate Judiciary Committee or request feedback from the Federal Bureau of Investigation (FBI), Department of Justice (DoJ), Congress, current federal judges, or the American Bar Association.

The vetting process for selecting a candidate includes examining their political views, political party membership, and alliances, and weighing whether or not the Senate is likely to confirm the candidate. In theory, this process produces politically moderate nominees and those that subscribe to a broader set of political interests as opposed to candidates who are positioned on the political fringes.

Many candidates serve as judges on lower courts, As such, their legal experience is also taken into consideration. With an increasing emphasis on diversity over the last several years, the race and gender of a prospective justice are frequently taken into account. Lastly, candidates will often be asked for their views on a wide range of "hot button” social issues, such as abortion, gun control, and marriage equality.

Supreme Court Justice Amy Coney Barrett (United States Supreme Court, Public domain, via Wikimedia Commons).

The Supreme Court Appointment Process and the House of Representatives

Once a prospective Supreme Court Justice is nominated, the Senate Judiciary Committee completes an in-depth background check and assessment of the candidate. Committee members then decide whether or not to support the nominee.

The Standing Committee on the Federal Judiciary of the American Bar Association also conducts an assessment of the nominee. The candidate will then meet with senators to amass favor for their confirmation as Supreme Court Justice.

Citizens gain a better idea of a nominee's values when they testify before the Senate Judiciary Committee. They are expected to answer a range of probing questions directed at them by senators from both major parties during the testimony. This process is usually broadcast on cable news networks and can last several days.

Supreme Court Appointment Process Timeline

After fielding questions from the Senate Judiciary Committee, the group votes on whether or not to appoint the candidate. The nomination is then sent to the Senate where the chamber decides to confirm or deny the candidate. If the candidate receives support from the Senate, a confirmation vote takes place.

Alternatively, the president can create a recess appointment, which means the candidate wouldn’t require a confirmation vote from the Senate. However, the appointed justice would not receive lifetime tenure, ending their service by the following congressional session.

If a Justice receives senate confirmation, the appointee takes an oath of office and a judicial oath, as outlined in the Judiciary Act of 1789. This act designed the first Supreme Court to have six judges and created a federal system of lower courts.

Duration of the Supreme Court Appointment Process

The duration of the Supreme Court appointment process varies. However, once there is a vacancy on the Supreme Court, it takes an average of 17 days for a sitting U.S. president to nominate a prospective Justice. The confirmation process is more involved and takes an average of 68 days.