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Explainer: What you should know about the Supreme Court confirmation process

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October 9, 2020

According to the U.S. Constitution, federal judges—including Justices of the U.S. Supreme Court—are appointed by the president with the advice and consent of the U.S. Senate. Although the process is not outlined in the Constitution, the determination of whether the judicial nominee is accepted by the Senate is carried out by the Senate Judiciary Committee. This committee assumes the principal responsibility for investigating the background and qualifications of each Supreme Court nominee.

Since the late 1960s, the Judiciary Committee’s consideration of a Supreme Court nominee almost always has consisted of three distinct stages—(1) a pre-hearing investigative stage, followed by (2) public hearings, and concluding with (3) a committee decision on what recommendation to make to the full Senate.

What happens during the pre-hearing investigative stage?

During the pre-hearing investigative stage, the nominee responds to a detailed Judiciary Committee questionnaire for the nominee. The FBI also investigates the nominee and provides the committee with confidential reports related to its investigation. During this time, the American Bar Association also evaluates the professional qualifications of the nominee, rating the nominee as “well qualified,” “qualified,” or “not qualified.” Prior to the committee hearings, the nominee may also meet with any or all individual Senators. After the investigation, the Judiciary Committee holds its public hearings.

What happens during the public hearings?

Since 1955, Court nominees testify in person before the Senate Judiciary Committee.

After opening remarks by the chair of the Judiciary Committee, other members follow with opening statements, and a panel of “presenters” introduces the nominee to the committee. The nominee is given the opportunity to make an opening statement and then begins taking questions.

Typically, the chair begins the questioning, followed by the ranking minority committee member and then the rest of the committee in descending order of seniority, alternating between majority and minority members, with a uniform time limit for each Senator during each round. When the first round of questioning has been completed, the committee begins a second round, which may be followed by more rounds, at the discretion of the committee chair

What types of questions can be asked during the hearing?

The Senate can generally ask whatever they want, though the questions are usually about the nominee’s background and qualifications, judicial philosophy, past decisions as a judge, or views on current controversies.

A nominee can’t be compelled to answer, and many refuse to comment on issues that might come up during their tenure on the Court.

How long does the hearing last?

For the most recent Supreme Court nominees, the hearings have lasted for four or five days. The longest hearing in the past 50 years was the failed nomination of Judge Robert Bork, which lasted 11 days.

What happens after the hearing?

After hearing the testimony of the nominee, the Judiciary Committee meets in open session to determine what recommendation to report to the full Senate. The committee may (1) report the nomination favorably, (2) report it negatively, or (3) make no recommendation at all on the nomination. A report with a negative recommendation or no recommendation permits a nomination to go forward, while alerting the Senate that a substantial number of committee members have reservations about the nomination.

The full Senate then votes on whether to accept or reject the nominee.

Can the nomination be blocked by the minority party in the Senate?

Technically, the minority party in the Senate is able to filibuster judicial nominees. But the Senate Majority Leader can change the rules to his parties benefit. That’s what happened in 2013, when then-Majority Leader Harry Reid lowered the 60-vote threshold to 51 for approval of Executive Branch appointees and federal judges. That set a new precedent which Senate Majority Leader Mitch McConnell has used to ensure his own party’s nominees only have to meet the 51-vote threshold.