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How A Justice Gets Onto the Supreme Court: A Step by Step Guide

united state supreme court
Credit: Joe Ravi, CC-BY-SA 3.0

Setting the Stage

For the third time during the Trump Presidency, the American public’s attention is directed to the United States Supreme Court.

Trump’s first appointment to the Court, Neil Gorsuch, secured his seat following a bitter bi-partisan battle in 2016. In 2016, President Obama was in his final year in his second term in the Oval Office. In an effort to fill the vacant Supreme Court seat following the death of Justice Antonin Scalia, President Obama nominated Judge Merrick Garland. However, Senate Majority Leader Mitch McConnell stated that the Senate would not act on the nomination until after the presidential election. For eight months, a bitter bipartisan battle ensued, with the Democrats arguing that the Republicans were obstructing the president’s Constitutional mandate and the Republican’s throwing back statements made in 1992 by then-Senator Joe Biden who argued that Supreme Court vacancies occurring in an election year should not be filled until after the election. Ultimately, the Democrats remained unable to secure the seat for Judge Garland leaving the seat open for Trump to fill with Neil Gorsuch in 2017. 

Then, in 2018, Justice Anthony Kennedy announced his plans to retire, providing Trump with a second opportunity to nominate a Supreme Court Justice. This time Trump tapped Brett Kavanaugh, and a second, arguably equally eventful, appointment process ensued.

Through the summer and fall of 2018, the American people were enraptured in the Senate Confirmation Hearing. The Kavanaugh hearing provided multiple allegations of assault, emotional outbursts, and an FBI investigation. Yet, despite the bumps in the road, Brett Kavanaugh became the second justice nominated by Trump. 

Now, less than two months out from an election, a seat on the High Court is once again open following the passing of Justice Ruth Bader Ginsburg on Friday. The battle for this seat promises to be just as stormy as the appointments of Justices Gorsuch and Kavanaugh. 

The Process

First, the President will announce his nominee. From the time of the announcement, an extensive background check is ongoing for the nominee. The FBI works closely with the White House counsel office as well as the Department of Justice in compliance with guidelines for conducting background checks. Shortly thereafter, the nominee will travel to Capitol Hill to meet with lawmakers, including the Vice President, Senators and possibly the Chairperson of the Senate Judiciary Committee. 

The nominee will return to Capitol Hill to begin their confirmation hearing before the Senate Judiciary Committee. The Judiciary Committee is made up of 22 senators: 12 Republicans and 10 Democrats, with Lindsey Graham serving as chairman and California Senator Dianne Feinstein serving as the ranking Democrat. On the Committee, the ratio of the majority party to minority members is based on the ratio of majority to minority members within the Senate.

The confirmation hearing begins with introductions and the nominee reading their opening remarks. Then the confirmation hearing will go on for two or more days to provide an opportunity for the Senators to ask questions of the nominee. The questions may be based on current national, political, or legal issues, the nominee’s prior decisions if they are a judge, or clarifying questions related to their legal philosophy or approach. Nominees are often reluctant to comment on current events or controversies because of the tenet of judicial independence and neutrality. Witnesses may also testify before the Judicial Committee. Depending on the outcome of the background investigation, it may be necessary for additional testimony before a panel of Committee staff.

The nomination then moves out of Committee and proceeds to the full Senate for a vote to advance the nomination. To be confirmed to the Supreme Court, the nominee needs to secure a simple majority in the Senate. 

After the Justice is confirmed by the Senate, Chief Justice John Roberts administers the constitutional oath and the newly appointed Justice will also take the judicial oath. Finally, the Justice participates in a swearing-in ceremony at the White House with the President.