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What is the Process for Appointing a Supreme Court Justice?

Judge Ketanji Brown Jackson faces another day of questions from members of the Senate Judiciary Committee Wednesday, as hearings continue over her historic nomination to be the first Black woman on the Supreme Court. 

Here is how Biden, and the presidents before him, get their nominee onto the high court.

Step 1: The presidential pick

The first thing to know is that the Constitution of the United States gives the power of nomination to the president.

Article II, section 2 provides that the president “shall nominate, and by and with the advice and consent of the Senate, shall appoint … judges of the Supreme Court.”

By law, President Biden can nominate whomever he wants to replace Justice Stephen Breyer. Appointment is really a three-step process: nomination (by the president), confirmation (by the Senate), and appointment (by the president again).

It’s somewhere between nomination and confirmation that the going gets tricky.

Step 2: The Senate Judiciary Committee

Once the president has made a choice, the nomination is referred to the United States Senate. Since the early 19th century, this has meant that the nomination will first be considered by a smaller group within the Senate, the Senate Judiciary Committee.

The Judiciary Committee currently has 20 members – 7 Republicans and 13 Democrats – and has a three-step process of its own.

First, it conducts a prehearing investigation into the nominee’s background.

Second, it holds a public hearing, in which the nominee is questioned and may give testimony about everything from her judicial philosophy to her stand on abortion.

Finally, the committee will “report” its recommendation to the full Senate. The committee can report the nomination with a favorable recommendation, a negative recommendation or no recommendation.

If a majority of the committee opposes confirmation of the nominee, it can technically refuse to report the nomination, therefore preventing the full Senate from considering the nominee at all.

This hasn’t happened since 1881, and would deviate from the committee’s “traditional practice.” But that does not mean it is out of the question.

Step 3: The full Senate

Let’s assume that the committee does report the nomination to the full Senate.

There are 100 senators in the United States Senate – two for each state. Currently Republicans have 50 Senators and Democrats have 50 Senators. 

This is where it gets interesting, because the Senate follows rules so arcane and incomprehensible that otherwise reasonable writers freely refer to them as “insane.”

In order to consider the nomination, the Senate has to enter a special “executive session.” This is typically achieved by having the Senate majority leader ask for unanimous consent to have the Senate consider the nomination.

If unanimous consent cannot be obtained (if it even is sought), the nomination can be considered if someone makes a motion that the Senate do so.

If the motion that the nomination be considered is made during a special “executive” session of the Senate, then the motion itself is debatable and can be blocked by filibuster – that movie-ready delay tactic in which which a senator recites Shakespeare, Dr. Seuss or recipes for fried oysters until everyone gives up and goes home.

Closing debate on the motion so that the Senate could move on to a vote would require a supermajority of 60 votes.

If the motion is made while the Senate is in its regular “legislative” session, then the nomination will be considered by the full Senate. But because of aforementioned arcane Senate rules, the vote on the nomination could also be blocked by filibuster.

Step 4: The vote

But let’s assume that the nomination does emerge from the Judiciary Committee, makes it to an “up or down” vote and weathers any filibuster attempts.

A vote to confirm then requires a simple majority of the senators present and voting. If all goes well, the secretary of the Senate will transmit the confirmation vote to the president.

The president then can breathe a sigh of relief and sign a commission appointing the person to the Supreme Court.

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