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Nominating a Supreme Court Justice

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Nominating and confirming a Supreme Court Justice are among the most important responsibilities Presidents and Senators have. After all, after being confirmed, a Justice may serve on the court for the rest of his or her life.

The Constitution gives the President and the Senate this vital role. Article II, Section 2, clause 2 states that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint ... Judges of the supreme Court.”

Not all Presidents have the opportunity to name someone to the court. There are nine Justices and one is replaced only when he or she retires or dies.

Forty presidents have made nominations to the Supreme Court, making a total of 160 nominations. The Senate confirmed 124 of those selections. Of the remaining nominations, 11 were withdrawn by the President, 11 were rejected by the Senate and the rest expired at the end of a Congress without being confirmed. Six nominees eventually were confirmed after not being confirmed. The President with the most nominations was George Washington, who had 12, with 14 of those being confirmed.

Step 1: The President’s Selection

As the President considers who to nominate, investigations of possible nominees begin. The investigations include a probe into a person’s private background by the FBI, as well as an examination of the person’s public record and writings. The list of possible nominees is narrowed at this point, with the goal being to ensure that a nominee has nothing in his or her background that would prove embarrassing and to guarantee that the President selects someone likely to be confirmed. The President and his or her staff also study which nominees agree with the President’s own political views and which ones would make the President’s supporters happy.

Often a President confers with Senate leaders and members of the Senate Judiciary Committee before selecting a nominee. This way the President receives a heads-up on any potential problems a nominee may face during confirmation. The names of possible nominees may be leaked to the press to gauge the support and opposition to different possible nominees.

At some point, the President announces the selection, often with great fanfare and the nominee present. The nomination then is sent to the United States Senate.

Step 2: The Senate Judiciary Committee

Since the end of the Civil War almost every Supreme Court nomination received by the Senate has been referred to the Senate Judiciary Committee. The committee does its own investigation. A nominee is asked to fill out a questionnaire that includes questions about his or her background and to fill out financial disclosure documents. The nominee also will make courtesy calls to various Senators, including party leaders and members of the Judiciary Committee.

At the same time, the American Bar Association’s Standing Committee on the Federal Judiciary begins evaluating the nominee based on his or her professional qualifications. Ultimately, the ABA votes on whether a nominee is “well-qualified,” “qualified,” or “not qualified.”

The Judiciary Committee then holds hearings during which the nominee and supporters and opponents testify. Since 1946 almost all hearings have been public, with most lasting more than four days. The President’s administration often trains a nominee before these hearings to ensure that the nominee does not embarrass himself or herself. Judiciary Committee members may ask nominees about their political views and backgrounds. Since these hearings receive a great deal of publicity, Senators may attempt to score their own political points during the hearings

Following the hearings, the Judiciary Committee meets and votes on a recommendation to the Senate. The nominee may receive a favorable recommendation, a negative recommendation or the nomination may be reported to the entire Senate with no recommendation.

Step 3: The Senate

The Senate majority party controls the Senate agenda, so it is up to the Majority Leader to determine when a nomination is brought to the floor. There is no time limit on debate, so if a Senator wants to conduct a filibuster to hold up a nomination indefinitely, he or she may do so. At some point, the Minority Leader and Majority Leader may reach a time agreement on how long a debate will last. If not, the nominee’s supporters in the Senate may attempt to end debate on the nomination. That vote requires 60 Senators to agree to end debate.

Often there is no filibuster of a Supreme Court nomination. In those cases a debate is held on the nomination and then a vote is taken by the Senate. A majority of voting Senators must approve the President's choice for the nominee to be confirmed.

Once confirmed, a nominee is sworn into the position of Justice of the Supreme Court. A Justice actually takes two oaths: the Constitutional oath that is taken by members of Congress and other federal officials, and a judicial oath.

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