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Supreme Court Nominations Research Guide

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. The most recent successful nomination to the Supreme Court, that of Justice Samuel Alito, was made by President George W. Bush. He was sworn in on January 31, 2006 to replace Justice Sandra Day O'Connor.

This guide is designed to explain the nomination process and to suggest resources for further research in 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:

  1. The President usually will consult with Senators before announcing a nomination.
  2. When the President nominates a candidate, the nomination is sent to the Senate Judiciary Committee for consideration.
  3. 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.
  4. During the hearings, witnesses, both supporting and opposing the nomination, present their views. Senators question the nominee on his/her qualifications, judgment, and philosophy.
  5. 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.
  6. The full Senate debates the nomination.
  7. 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).
  8. 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:


For reference information about the Supreme Court, its justices and nominations, consult:

  • The Supreme Court Compendium: Data, Decisions & Developments (Lee Epstein et al. eds., 4th ed., 2007) [KF 8742 .S914 ] 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."

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.

Confirmation Failures

According to Henry B. Hogue (see his CRS Report dated March 21, 2005), there were 154 presidential nominations to the Court between 1789 and 2004, 34 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, and Robert H. Bork by President Reagan in 1987.

The following resources suggest the reasons behind failed confirmations as well as charts listing brief information for all the failed confirmations:

The Library of Congress has made accessible floor debates (Senate debate while in Executive Session), votes, hearing transcripts and Senate statements (statements made about the nominees outside of Executive Session) of four Supreme Court nominees which were not confirmed by the U.S. Senate: Robert H. Bork, G. Harrold Carswell, Clement F. Haynsworth, and Homer Thornberry. [http://www.loc.gov/rr/law/notconfirmed.html]

**For information on past nominations in 2005 and 2006 (John G. Roberts, Harriet E. Miers, Samuel A. Alito), please click here.**

 

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 Supreme Court of the United States: Highest Court in the Land: An Electronic Journal of the U.S. Department of State (April 2005) 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.
  • Joan Biskupic and Elder Witt, Guide to the U.S. Supreme Court (1997). [KF8742 .C63 1997]
  • About the Supreme Court (Supreme Court of the United States) [http://www.supremecourtus.gov/about/about.html]
    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] has four chapters:
    • Henry B. Hogue, Supreme Court Nominations Not Confirmed, 1789-2001
    • Denis Steven Rutkus, The Supreme Court Appointment Process: Should it be Reformed?
    • P.L. Morgan, Professional Qualifications for Appointment to the Federal Judiciary
    • Louis Fisher, Recess Appointments of Federal Judges
  • The Secondary Sources section of our U.S. Supreme Court Research guide includes more useful books, databases and journal indexes.

JUDGE SAMUEL A. ALITO: NOMINEE TO REPLACE JUSTICE SANDRA DAY O'CONNOR (Confirmed)

JUDGE JOHN G. ROBERTS - NOMINEE TO REPLACE CHIEF JUSTICE WILLIAM H. REHNQUIST (CONFIRMED)

HARRIET E. MIERS - NOMINEE TO REPLACE JUSTICE SANDRA DAY O'CONNOR (WITHDRAWN)

Updated 6/2008 (SAS)
Updated March 23, 2007 (LT)