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The procedure for appointing a Supreme Court Justice is provided for by the Constitution in only a few words. The "Appointments Clause" (Article II, Section 2, clause 2) states that the President "shall nominate, and by and with the Advise and Consent of the Senate, shall appoint…Judges of the supreme Court." The process of appointing Justices has undergone changes over two centuries, but its most basic feature--the sharing of power between the President and Senate--has remained unchanged. To receive lifetime appointment to the Court, a candidate must first be nominated by the President and then confirmed by the Senate. Although not mentioned in the Constitution, an important role is played midway in the process (after the President selects, but before the Senate considers) by the Senate Judiciary Committee. Since the end of the Civil War, almost every Supreme Court nomination received by the Senate has first been referred to and considered by the Judiciary Committee before being acted on by the Senate as a whole. | ||||||||||||
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Table of Contents
1. "Supreme Court Appointment Process: Roles of the President, Judiciary Committee, and Senate," Congressional Research Service (CRS) Report for Congress RL31989, February 19, 2010 (see CRS Report RL31989, September 3, 2010, 70-page PDF
). . . . . . . . . . . . . . . 1
-
- Background
- President's Selection of a Nominee
- The Role of Senate Advice
- Advice from Other Sources
- Criteria for Selecting a Nominee
- Background Investigations
- Speed with Which President Selects Nominees
- Recess Appointments to the Court
- Consideration by the Senate Judiciary Committee
- Historical Background
- Pre-Hearing Stage
- Hearings
- Reporting the Nomination
- Senate Debate and Confirmation Vote
- Bringing the Nomination to the Floor
- Criteria Used to Evaluate Nominees
- Filibusters and Motions to End Debate
- Voice Votes, Roll Calls, and Vote Margins
- Reconsideration of the Confirmation Vote
- Nominations That Failed to Be Confirmed
- Calling Upon the Judiciary Committee to Further Examine the Nomination
- After Senate Confirmation
- Conclusion
- Additional Sources
- Table 1. Current Members of the Supreme Court of the United States
- Table 2. Supreme Court Nominations Not Confirmed by the Senate
)
- Introduction3. "Evolution of the Senate's Role in the Nomination and Confirmation Process: A Brief History," CRS Report for Congress RL31948, May 13, 2009 . . . . . . 81
- Receipt and Referral
- Committee Procedures
- Written Rules
- Investigations
- Hearings
- Reporting
- Floor Procedures
- Executive Calendar
- Executive Session
- Taking Up A Nomination
- Holds
- Consideration and Disposition
- Recommital
- Reconsideration
- Cloture
- Nominations Returned to the President
- Recess Appointments
- Related CRS Reports
- Introduction4. "Proper Scope of Questioning of Supreme Court Nominees: The Current [2005] Debate," CRS Report for Congress RL33059, September 1, 2005 . . . . . . 97
- Development of Senate Procedures
- Senatorial Courtesy
- Blue Slips
- "Holds"
- Filibuster
- Historical Background5. "Constitutionality of a Senate Filibuster of a Judicial Nomination," CRS Report for Congress RL32102, June 14, 2005 . . . . . . 113
- Past Comments of John G. Roberts, Jr., on Proper Scope of Questioning
- His Advice in 1981 to Nominee Sandra Day O'Connor
- Questions He Declined to Answer as Court of Appeals Nominee in 2003
- Pre-Hearing Debate Over Proper Scope of Questioning for Roberts as Supreme Court Nominee
- Chairman Sets Stage for Committee Questioning
- Calls for Roberts to Answer Questions about Current Issues
- Criticism of Calls for Roberts to Answer Questions about Current Issues
- Conclusion
- Introduction6. "Cloture Attempts on Nominations," CRS Report for Congress RL32878, March 30, 2009 . . . . . . . 127
- Majority Rule
- Rulemaking Authority
- Entrenchment
- The Senate, the President, and Judicial Appointments
- The Text
- The Framers' Intent
- The Arguments of Supporters and Critics of Filibusters of Judicial Nominations
- Recess Appointments
- Appeal to the Courts
- Standing
- Political Question
- Conclusion
(see CRS Report RL32878, June 26, 2013, 23-page PDF
)
- Cloture, Filibusters, and How They Differ7. "Changing Senate Rules or Procedures: The 'Constitutional' or 'Nuclear' Option," CRS Report for Congress RL32684, November 1, 2005 . . . . . . 139
- Frequency of Cloture Attempts on Nominations
- Historical Development of Cloture Attempts on Nominations
- Positions in Relation to Which Cloture Was Sought
- Table 1. Cloture Attempts and Action on Nominations
- Table 2. Frequency and Success of Cloture Attempts on Nominations, by Time Period, 1949-2008
- Table 3. Cloture Action on Judicial and Executive Nominations, by Time Period, 1967-2008
- Table 4. Nominations Subjected to Cloture Attempts, 1968-2008
- Introduction8. "'Entrenchment' of Senate Procedure and the 'Nuclear Option' for Change: Possible Proceedings and Their Implications," CRS Report for Congress RL32843, March 28, 2005 . . . . . . . 153
- Nominations and the Filibuster
- Possible Courses of Action
- Dilatory Debate
- Opening Day Scenario One - Majority Rules Change
- Opening Day Scenario Two - Majority Cloture
- The Constitution and Cloture
- Considerations
- Potential Implications for the Senate
- Alternative Proposal
- Introduction9. "Consideration and Debate on the Senate Floor: Filibusters," "Cloture in Senate Floor Proceedings," "Steps to Invoke Cloture," and "Senate Procedures under Cloture," Sections 8.210-8.232, from the Congressional Deskbook, by Michael Koempel and Judy Schneider . . . . . . 189 10. "Congress and the Executive: Appointments" and "Confirmation Procedure," Sections 10.81-10.81 from the Congressional Deskbook, by Michael Koempel and Judy Schneider . . . . . . 193 11. "Nominations to Federal Courts" and "Gathering Information on a Judicial Nominee," Sections 10.121-10.122 from the Congressional Deskbook, by Michael Koempel and Judy Schneider . . . . . 197 12. Other Resources. . . . 201 See also
- Filibusters and Limits on Consideration
- "Nuclear" and "Constitutional" Options
- Synopsis
- The "Entrenchment" of Senate Procedure
- Lack of Overall Consideration Limits
- Effects of the Continuing Body Doctrine
- The Continuity of the Senate
- Practical Implications of Continuity
- Contrast with the House of Representatives
- Entrenchment in Practice Only
- Requisites of a "Nuclear Option"
- Overcoming Entrenchment
- Consideration Limits Under Existing Procedures
- Motion to Table
- Point of Order
- Nested Point of Order
- Precedential Force of Parliamentary Rulings
- Rulings of the Chair
- Decisions by the Senate
- The "Constitutional Option"
- Rulemaking Power as Basis
- "Advice and Consent" Power as Basis
- Consideration Limits on Submitted Questions
- Possible Proceedings in a Contemporary "Nuclear Option"
- Point of Order Sustained by Chair
- Adverse Ruling in Accordance With Precedent
- Point of Order Submitted
- Point of Order by Opponents
- Nested Points of Order
- Implications of Using Extraordinary Action to Overcome Entrenchment
- Peremptory Departure from Established Procedure
- Extraordinary Action and the Standing of Precedent
- Attempts to Amend the Cloture Rule, 1953-1975
- Asserting the Non-Continuity of Rules
- Majority Cloture on Rules Changes
- Presumptively Non-Debatable Motion to Proceed
- Corresponding Considerations in the House
- Procedural Stability and Procedural Control
- Prospective Effects on Senate Practice
- Procedural Change Under Established Constraints
- For Further Reading
-
"Supreme Court Appointment Process: President’s Selection of a
Nominee,"
CRS Report R44235, February 6, 2017 (31-page PDF )
- "Proposals to Change the Operation of Cloture in the Senate,"
CRS Report R41342, January
11, 2013
(28-page PDF
)
- "Invoking Cloture in the
Senate,"
CRS Report 98-425, April
6, 2017 (6-page PDF
)
- Congressional Glossary, Filibuster / Unlimited Debate
- "From Solicitor General to
Supreme Court Nominee: Responsibilities, History, and the Nomination
of Elena Kagan," CRS Report R41299, June 23, 2010 (23-page PDF
)
- "Supreme Court
Appointment Process: Consideration by the Senate Judiciary
Committee,"
CRS Report R44236, March 17, 2017
(29-page PDF
)
- "Judge Neil M. Gorsuch: His Jurisprudence and Potential Impact on the Supreme Court," CRS Report R44778,
March 8, 2017 (110-page PDF)
-
"Judicial Opinions of Judge Brett M. Kavanaugh," CRS Report R45269,
July 23, 2018 (117-page PDF
)
-
Chapter 5.I. The Nuclear Option, in
Congressional Procedure.
-
Brett Kavanaugh Resource page at the Library of Congress
-
Neil
Gorsuch Resource page at the Library of Congress
-
Elena Kagan
Resource page at the Library of Congress
-
Sonia
Sotomayor Resource page at the Library of Congress
-
The Constitution of the United States, Article. III. Section. 1. Judicial Powers.
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