Liberty Counsel Action
Supreme Court Justice: The Process

As a member of the highest appellate court in the country, a Supreme Court Justice exercises enormous judicial power. Furthermore, he or she holds office “during good behavior,” according to the Constitution, which effectively amounts to a lifetime appointment. Taken together, this structure makes the appointment of a Supreme Court Justice one of the more impactful events in American politics. “Many Justices serve for 20 to 30 years and sometimes are still on the Court decades after the President who nominated them has left office.”[1]

The opportunity to appoint a Justice does not come around too often. “On average, a new Justice joins the Court almost every two years.”[2] The actual timing of a Court vacancy, however, can be unpredictable. While 20 out of 24 vacancies since 1954 have resulted from retirements, it is not unusual, historically, for a Justice to die while in office.[3] As such, a President may have a chance to appoint a Justice once or twice during his tenure, but sometimes not at all.

When a vacancy on the Court arises, the “Appointments Clause” of the Constitution (Article II, Section 2, clause 2) governs the appointment process and states that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint. . . Judges of the supreme Court.” While there is a difference of opinion on the weight that should be given to the Senate’s advisory role, the most basic feature of the appointment process of a separation of power between the branches is preserved by requiring the Senate’s confirmation. Additionally, Presidents are free to seek advice from whoever they choose, and this typically includes “House Members, party leaders, interest groups, news media commentators, and, periodically, Justices already on the Court.”[4]

History will judge a presidency in part by looking at who was nominated to the Supreme Court. The public expects a Supreme Court nominee to be highly qualified, so Presidents look to put forward individuals who are not only compatible politically and ideologically, but who embody professional excellence and possess a high degree of merit. Integrity and impartiality are also frequently touted. While the Constitution does not require a nominee to be a lawyer, each one thus far has been. Since 1981, 13 out of 16 nominees served as U.S. appellate judges, but Presidents also draw from other pools of professional legal experience including executive branch officials, state judges, governors, senators, and even private practice attorneys. Realistically, a President “seeks the best person from among a list of those who fulfill certain [political] criteria and, of course, who share a president’s vision of the nation and the Court.”[5]

Whether a President publicly reveals the names of the individuals he is considering or chooses to keep them confidential, he will typically enlist some assistance in investigating the background of a prospective nominee. These efforts are generally concerned not only with a potential nominee’s public record and professional credentials, but also his or her private background. The FBI conducts an examination of personal financial affairs, while the public and professional investigation is typically headed by Justice Department officials, White House aides, or both. Investigations naturally become more thorough as a list gets narrowed, and the President will typically want to meet with candidates personally before making a final decision.

Once the requisite intelligence is gathered, Presidents sometimes act very quickly to address a vacancy once it arises. As most vacancies are coming from decisions to retire where advanced notice is given, a President may be well positioned and informed enough to minimize the time the seat on the Court is vacant. He may already have a short list in preparation for the event of a vacancy. Other times, a President may not want to rush the decision in order to avoid being accused of “charging ahead” without adequately getting advised by the Senate and others.[6] “Some nominees who were selected relatively quickly by a president were ultimately not approved or considered by the Senate,” but that does not mean a prompt nomination will not be approved.[7]

Once the President formally submits a nomination to the Senate (but prior to committee hearings on the nomination), the nominee is evaluated by the American Bar Association’s Standing Committee on the Federal Judiciary. The committee stresses that an evaluation focuses strictly on the candidate’s “professional qualifications: integrity, professional competence and judicial temperament” and does “not take into account [his or her] philosophy, political affiliation or ideology.”[8]

The Senate Judiciary Committee then plays a prominent role and conducts hearings during the “midway” time after the President chooses a nominee, and before the nominee is considered by the Senate body as whole.[9] As might be expected, “the political nature of the appointment process becomes especially apparent when a President submits a nominee with controversial views, there are sharp partisan or ideological differences between the President and the Senate, or the outcome of important constitutional issues before the Court is seen to be at stake.”[10]

“On rare occasions, Presidents also have made Court appointments without the Senate’s consent, when the Senate was in recess. Such ‘recess appointments,’ however, were temporary, with their terms expiring at the end of the Senate’s next session. Recess appointments have, at times, been considered controversial because they bypassed the Senate and its ‘advice and consent’ role. The last recess appointment to the Court was made in 1958 when President Eisenhower appointed Potter Stewart as an Associate Justice (Justice Stewart was confirmed by the Senate the following year).”[11] A President in the 21st century, however, “might hesitate to make a recess appointment to the Court and do so only under unusual circumstances.”[12]

[1] McMillan, Barry J. Supreme Court Appointment Process: President’s Selection of a Nominee . Congressional Research Service, 2018, p. 3.

[2] U.S. Supreme Court, The Supreme Court of the United States (Washington: Published by the Supreme Court with the cooperation of the Supreme Court Historical Society, revised September 2006), p. 10. (Hereinafter cited as Supreme Court, Supreme Court of the United States.)

[3] McMillan, at 4.

[4] McMillan, at 7.

[5] Watson and Stookey, Shaping America, p. 64. Recently, for example, prior to the 2016 general election, Donald Trump released a list of individuals he would consider nominating, if elected, to the Supreme Court. He stated “These individuals were selected, first and foremost, based on constitutional principles, with input from respected conservative leaders.” Donald J. Trump for President, Press Release, September 23, 2016. Updated list (as of November 17, 2017) available online at

[6] McMillan, at 21.

[7] Id. at 22.

[8] American Bar Association, The ABA Standing Committee on the Federal Judiciary: What It Is and How It Works, p. 1, at The role of the ABA in evaluating the President’s nominee is discussed further in CRS Report R44236, Supreme Court Appointment Process: Consideration by the Senate Judiciary Committee, by Barry J. McMillion.

[9] McMillan, at 1.

[10] Id.

[11] Id. at 23.

[12] Id. at 23.

Media to share...
What is most important to you?