INTRODUCTION
Under Article II of the Constitution, the President
has the power, by and with the advice and consent of the Senate,
to appoint Judges of the Supreme Court. Since Supreme Court Justices
are appointed for life, each nomination to the Supreme Court has
a long-lasting influence on the Court and on the day-to-day life
of every American.
This guide is designed to explain the nomination
process and to suggest resources for further research on the nomination
process. For help in researching the Court and individual Justices, consult the Supreme Court Research Guide.
NOMINATION & CONFIRMATION
PROCESS
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.
The process:
- The President usually will consult with Senators before announcing
a nomination.
- When the President nominates a candidate, the nomination is sent
to the Senate Judiciary Committee for consideration.
- 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.
- 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.
- 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.
- The full Senate debates the nomination.
- The Senate rules allow unlimited debate (a practice known as filibustering).
To end the debate, it requires the votes of 3/5 of the Senate or
60 senators (known as the cloture vote).
- 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.
The following resources are about the nomination process:
- Supreme Court Appointment Process: Roles of the President, Judiciary
Committee, and Senate (CRS Report No. RL31989 Updated 2/19/2010)
- Supreme Court Nominations, 1789 - 2009: Actions by the Senate, the Judiciary Committee, and the President (CRS Report No. RL33225 Updated 5/13/2009)
- Proper Scope of Questioning of Supreme Court Nominees: The Current Debate (CRS Report, Record No.
RL33059. Updated September 1, 2005)
- The "Confirmation Process" and the "Selection Process" entries
of Supreme Court A to Z, 110-114,
286-288 (Kenneth Jost ed., 3rd ed., 2003) [KF8742 .A34 S8 2003]
- The "Selection of Justices" and the "Appointment and Removal Power" entries
of Oxford Companion
to The Supreme Court of the United States, 48-50, 896-899 (Kermit
L. Hall, James W. Ely, Jr., Joel B. Grossman, 2d ed., 2005) [KF8742 .A35 O93 2005] (also available online to members of the GULC community)
- A Vacancy on the Court (George Watson, Arizona State University) provides biographical information, and partisanship and ideological
scores of Senate Judiciary Committee members.
- Henry J. Abraham, Justices, Presidents, and Senators:
A History of the U.S. Supreme Court Appointments from Washington
to Bush II (5th ed., 2005) [KF8742 .A72] explains
the appointment process in great detail, taking into consideration
the political background of the time.
- The Supreme
Court Compendium: Data, Decisions & Developments (Lee Epstein
et al. eds., 4th ed., 2007) [KF 8742 .S914 ] (available online to the Georgetown community) 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."
- Inside the Supreme Court: The Institutions and its Procedures [KF 8742.B58] (
Susan Low Bloch, Vicki C. Jackson, Thomas G. Krattenmaker 2008) has a chapter on the confirmation process.
- Lee Epstein & Jeffrey A. Segal, Advice and Consent (Oxford University Press 2005) (KF8776 .E67).
Nomination Hearings of the Justices
- 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 since 1916,
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 - (Roy M. Mersky and J. Myron Jacobstein
compiled, 1975- ) [KF8744 .J8]
- Senate
Committee on the Judiciary: Supreme Court Nomination Hearings (1971-forward) (GPO
Access)
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.
Confirmation Failures
According to Henry B. Hogue (see his CRS Report dated January 1, 2008), there were 158 presidential nominations to the Court between
1789 and 2007, 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:
RESEARCH GUIDES & RESOURCES
- Christine L.Nemacheck,
Strategic Selection Presidential Nomination of Supreme Court Justices from Herbert Hoover through George W. Bush [KF8742 .N46 2007] examines patterns and trends in the selection of Supreme Court Justices.
- Supreme Court Nominations (United States Senate) provides a chart listing all Supreme Court Nominations, which includes justice replaced, date nominated, vote, and nominating President.
- The April 2005 issue of eJournal USA (U.S. Department of State) is devoted to the Supreme Court of the United States and
includes essays by Chief Justice Rehnquist as well as legal scholars
about how the Supreme Court commands the respect of Americans and
plays a vital role in the constitutional system. One of the articles, "I Do Solemnly
Swear" by Robert S. Barker, offers "a historical perspective
on the nomination, confirmation, and appointment of justices to the
U.S. Supreme Court."
- The Supreme Court Historical Society provides a history of the court as well as a research guide on how to research the court.
- David G. Savage, Guide to the U.S. Supreme Court (5th ed. 2010)
(KF8742 .W567 2010)
- About the Supreme Court (Supreme Court of the United States)
Provides biographical information about the justices, brief overview
of this history and jurisdiction of the Court. It includes a handy "Member of the Supreme
Court of the United States" chart listing the following information
by justice: name, state appointed from, appointed by President,
judicial oath taken and date service terminated.
- The Supreme
Court and the Federal Judiciary (Steven C. Caldwell ed., 2002)
[KF8776 .S86 2002] covers nominations not confirmed, the appointment process, qualifications, and recess appointments.
- The Secondary Sources section
of our U.S. Supreme Court Research guide
includes more useful books, databases and journal indexes.
NOMINATION OF ELENA KAGAN TO REPLACE ASSOCIATE JUSTICE JOHN PAUL STEVENS (Confirmed)
On May 10, 2010, President Obama nominated current Solicitor General Elena Kagan to fill the seat previously held by Justice Stevens. The Senate Judiciary Committee held the confirmation hearings the week of June 28. On Thursday, August 5, the Senate confirmed Solicitor General Kagan by a vote of 63-37, and she was sworn in on Saturday, August 7.
Supreme Court Nomination
- Senate Judiciary Commitee
List of documents submitted with committee questionnaire, letters sent and received in connection with the nomination, and a photo gallery.
- GPO Access
Access confirmation hearing, questionnaire and responses, and documents submitted for the record.
- C-SPAN video of confirmation hearings, swearing in ceremony, and more
- Full transcripts of the hearings are available in the CQ Transcriptions database on LexisNexis
- Judiciary Committee vote to send nomination to full Senate
- Senate debate
(Congressional Record)
- Senate vote
Biographies of Elena Kagan
Solicitor General Confirmation
Publications by Elena Kagan
Book Chapters and Reports:
Articles:
- Elena Kagan, "Remarks Commemorating Celebration 55: The Women's Leadership Summit, Introduction," 32 Harv. J. L. & Gender 233 (2009)
- Conversation between Justice Ruth Bader Ginsburg and Dean Elena Kagan, 32 Harv. J. L. & Gender 237 (2009)
- Elena Kagan, "The Harvard Law School Revisited: Reflecting on Louis D. Brandeis's Harvard Law School Reflections," 11 Green Bag, 475 (2008)
- Elena Kagan, "Clark Byse," 121 Harvard L. Rev. 454 (2007)
- Elena Kagan, "Richard Posner, the Judge," 120 Harvard L. Rev. 1121 (2007)
- Elena Kagan, "David Westfall," 119 Harvard L. Rev. 947 (2006)
- Elena Kagan, "Women and the Legal Profession - A Status Report," 61 Record of the Association of the Bar of the City of New York 37 (2006)
- Elena Kagan, "Presidential Administration," 114 Harvard L. Rev. 2245 (2001)
- Elena Kagan & David J. Barron, "Chevron's Nondelegation Doctrine," 2001 The Supreme Court Rev. 201 (2001)
- Elena Kagan, Libel and the First Amendment (Update), Encyclopedia of the American Constitution, Supplement II (2000)
- Elena Kagan, Masson v. New Yorker Magazine, Inc., Encyclopedia of the American Constitution (2000)
- Elena Kagan, "When a Speech Code is a Speech Code: the Stanford Policy and the Theory of Incidental Restraints," 29 U.C. Davis L. Rev. 957 (1996)
- Elena Kagan, "Private Speech, Public Purpose: the Role of Governmental Motive in First Amendment Doctrine," 63 The University of Chicago L. Rev. 413 (1996)
- Elena Kagan, "Confirmation Messes, Old and New" (Book Review), 62 University of Chicago L. Rev. 919 (1995)
- Elena Kaga, "Regulation of Hate Speech and Pornography After R.A.V." 60 University of Chicago L. Rev. 873 (1993)
- Elena Kagan, "For Justice Marshall," 71 Texas L. Rev. 1125 (1993)
- Elena Kagan, "A Libel Story: Sullivan Then and Now," 18 Law & Social Inquiry 197 (1993)
- Elena Kagan, "The Changing Faces of First Amendment Neutrality: R.A.V. v St. Paul [112 S. Ct. 2538 (1992)], Rust v Sullivan [111 S. Ct. 1759 (1991)], and the Problem of Content-Based Underinclusion," 1992 The Supreme Court Rev. 29 (1992)
- Note, "Certifying Classes and Subclasses in Title VII Suits," 99 Harvard L. Rev. 619 (1986)
Speeches by Elena Kagan
- Kagan on Cameras in the Courtroom at the Ninth Circuit Judicial Conference (7/23/2009), via YouTube
- Women and the Supreme Court (First Amendment Center 1/28/2010)
- Kagan accepting Dean of the Year Award from Equal Justice Works (11/4/2008) via YouTube
Kagan's Work as Solicitor General
Kagan argued in front of the court six times during the 2009 term. Oral argument transcripts are available from the Law Library of Congress. Briefs filed by the Solicitor General's office from these six cases are available below. See our Supreme Court Research Guide for where to locate other briefs.
Harvard Law School Dean
The following materials relate to Kagan's tenure as dean of Harvard Law School from 2003 to 2009.
Clinton White House
From 1995 to 1999, Kagan served as Associate White House Counsel to President Clinton. The following materials relate to her time in this position.
Other Collections of Documents about Kagan
Selected Resources on Elena Kagan by the Law Library of Congress
Elena Kagan page by University of Michigan Law Library
Retirement of Justice Stevens
On April 9, Justice Stevens announced his retirement from the Court. View his letter to President Obama here.
Other Sources
The following sources offer in-depth coverage of the Court, including pending nominations.
JUDGE SONIA SOTOMAYOR: NOMINEE TO REPLACE JUSTICE DAVID H. SOUTER (Confirmed)
On May 26, 2009 President Obama nominated Judge Sonia Sotomayor to replace Justice Souter on the United States Supreme Court. The White House blog has a video of President Obama announcing the nominee and a transcript of the event.
The Senate Judiciary Committee held hearings from July 13 to July 16. On August 6, the Senate confirmed Judge Sotomayor. She was sworn in on August 8th.
Biographies of Judge Sotomayor
Supreme Court Nomination Confirmation Hearings & Senate Action
- Witness lists (PDF version) and webcasts of hearings from the Senate Judiciary Committee
- List of documents submitted with committee questionnaire, letters sent and received in connection with the nomination, and a photo gallery from the Senate Judiciary Committee.
- GPO Access
Access confirmation hearing, questionnaire and responses, and documents submitted for the record.
- C-SPAN video of confirmation hearings, swearing in ceremony, and more
- Transcripts
- From the Washington Post
- Full transcripts are also available from CQ or Federal News Service on Lexis.com. Search the
POLTRN or
FEDNEW databases.
- The Judiciary Committee reported the Sotomayor nomination to the full Senate on July 28.
- Congressional Record
- Senate Roll Call Vote
Other Confirmation Hearings
- Nomination to the Second Circuit
- Nomination to the Southern District of New York
Publications By Judge Sotomayor
- Sonia Sotomayor, Foreword, in The International Judge: An Introduction to the Men and Women Who Decide the World's Cases (Daniel Terris, Cesare P.R. Romano, and Leigh Swigart eds. 2007)
- Sonia Sotomayor, "Another Historical Moment," 53 Federal Lawyer 29 (2006)
- Sonia Sotomayor, "Tribute to John Sexton," 60 New York University Annual Survey of American Law 23 (2004)
- Sonia Sotomayor,
Raising the Bar: Latino and Latina Presence in the Judiciary and the Struggle for Representation,
13 Berkeley La Raza L.J. 87 (2002). (
Judge Mario G. Olmos Memorial Lecture
)
- Sonia Sotomayor, et. al., La Independencia Judicial: Que Necessitamos Para Conservarla. 60 Revista del. Colegio de P.R. 59 (1999)
- Sharon E. Grubin, et al., "Report of the Second Circuit Task Force on Gender, Racial, and Ethnic Fairness in the Courts," Reprinted in 1997 Annual Survey of American Law 9 (1997)
- Sonia Sotomayor & Nicole A. Gordon,
Returning Majesty to the Law and Politics: A Modern Approach,
30 Suffolk U. L. Rev. 35 (1996)
- Student Note,
Statehood and the Equal Footing Doctrine: The Case for Puerto Rican Seabed Rights. 88 Yale L.J. 825 (1979)
Opinions and Court Documents
Westlaw's SOTOMAYOR database includes opinions, law reviews, and other legal documents written by or about the nominee. It also includes biographical information by West's Profiler and the Almanac of the Federal Judiciary as well as congressional documents.
Selected opinions from Judge Sotomayor, as compiled by the New York Times
Materials related to Ricci v. DeStefano (New Haven firefighters case)
Analysis of Judge Sotomayor's opinions by the Congressional Research Service (CRS)
Analysis of Judge Sotomayor's opinions by the SCOTUSBLOG:
Other Resources
Law Library of Congress Guide
Compilation of News and Commentary from National Law Journal
American Bar Association Nominee Ratings
JUDGE SAMUEL A. ALITO: NOMINEE TO REPLACE JUSTICE SANDRA DAY O'CONNOR (Confirmed)
- Senate confirmed Samuel A. Alito, Jr., of New Jersey, to be an
Associate Justice (January 31, 2006) - U.S.
Senate Roll Call Vote, 109th Congress - 2nd Session.
- Alito Confirmation Hearings (Washington Post)
- Alito
Senate Questionnaire (New York Times)
- Records Pertaining
to Judge Samuel A. Alito, Jr. (The National Archives)
The National Archives released on November 30, 2005 thirty-one documents
from the Records of the Department of Justices. Five documents are from
the Files of Charles Cooper (Deputy Assistant Attorney General, Civil Rights
Division, 1982-1985), twenty-six documents are from the Files of the Attorney
General, Edwin Meese III. More documents were released on December 23 and
28, 2005.
- Reagan Presidential
Records Re: Samuel A. Alito, Jr. (Ronald Reagan Presidential
Library)
- "Hearings
before the Committee on the Judiciary, United States Senate, March
1, 7, 22, April 4 and 5, 1990. " in which
Samuel Alito's April 5, 1990 appearance for his federal court confirmation
hearings (pp.557-577) and written answers to questions (pp. 632-653)
can be found.
- Samuel
A. Alito Profile (Washington Post)
- Supreme Court Nominations
- Samuel A. Alito: Selected Resources by the Law Library of Congress
- The
Environmental Opinions of Judge Samuel Alito (by Robert Meltz,
CRS Report for Congress, Order Code RS22359, January 6, 2006)
- Federalism:
Selected Opinions of Judge Samuel Alito (by Kenneth R. Thomas,
CRS Report for Congress, Order Code RL 33214, December 30, 2005)
- Habeas
Review in Death Penalty Cases: Selected Opinions of Judge Samuel
Alito (by Alison M. Smith, CRS Report for Congress, Order Code
RL 33203, December 20, 2005)
- U.S.
Supreme Court Nominee Samuel A. Alito and the Abortion Opinions
of the U.S. Court of Appeals for the Third Circuit (by Jon
O. Shimabukuro, CRS Report for Congress, Order Code RL 33198, December
16, 2005)
- The
Law of Church and State: Opinions of Judge Samuel Alito (by
Angie A. Welborn, CRS Report for Congress, Order Code RL33193,
December 12, 2005)
- Civil
Rights Opinions of U.S. Supreme Court Nominee Samuel Alito: A Legal
Overview (by Charles V. Dale, CRS Report for Congress, Order
Code RL33187, December 12, 2005)
- Judge
Samuel Alito's Opinions in Freedom of Speech Cases (by Henry
Cohen, CRS Report for Congress, Order Code RL 33182, December 9,
2005)
- Civil
Rights of Individuals with Disabilities: The Opinions of Judge
Alito (by Nancy Lee Jones, CRS Report for Congress RL 33183,
December 2, 2005)
JUDGE
JOHN G. ROBERTS - NOMINEE TO REPLACE CHIEF JUSTICE WILLIAM H. REHNQUIST
(CONFIRMED)
- Senate confirmed Roberts as 17th Chief Justice (September 29, 2005)
- U.S.
Senate Roll Call Vote on the Nomination (Confirmation John G.
Roberts, Jr., of Maryland, to be Chief Justice of the United States),
109th Congress - 1st Session
- John
G. Roberts Dossier (Washington Post) includes John Roberts'
biography as well as his response to a Senate Judiciary Committee
questionnaire in preparation for his September confirmation hearings
(Part
I: Pages 1-25; Part
II: Pages 26-50; Part
III: Pages 51-76, and Financial Disclosure Report). The Dossier
also includes links to selected memos written by Roberts during
his tenure as an assistant White House counsel and a special assistant
to then-Attorney General William French Smith during the Reagan
administration; and selected oral arguments Roberts made before
the Supreme Court when representing private clients.
- Records relating to John Roberts have been released at both the
Reagan Library in California and the National Archives in Washington.
They are also available at the following Web sites:
- "Hearing
Before the Committee on the Judiciary, United States Senate, January
29, 2003" and "Hearings
before the Committee on the Judiciary, United States Senate, April
20, May 7, May 22, June 25, and July 9, 2003" in which Judge
Roberts's January 29, 2003 appearance and his April 30, 2003 appearance
for his federal court confirmation hearings and written answers
to questions can be found.
- Background
Information on SCOTUS Nominee John G. Robert (Law Librarian Blog:
A Member of the Law Professor Blogs Network)
Includes links to
commentaries and analyses on the Law
Professor Blogs Network
- Supreme Court
Nominations - John G. Roberts: Selected Resources of the Law Library
of Congress lists articles/books
and opinions written by John G. Roberts, cases argued by Roberts,
Roberts' federal court nomination hearings, other secondary sources
on Supreme Court nominations in general, and useful Web resources.
- "Memorandum of Understanding on Judicial Nominations" is a deal spearheaded by Senator McCain and signed by seven Republican
Senators and seven Democratic Senators whereby the Democrats promised
they would filibuster future judicial nominations only in "extraordinary
circumstances" and the Republicans promised not to invoke the "nuclear
option" for the remainder of the 109th Congress.
HARRIET
E. MIERS - NOMINEE TO REPLACE JUSTICE SANDRA DAY O'CONNOR (WITHDRAWN)