Today marks the start of the most convoluted Supreme Court confirmation battles in history. Judge Neil Gorsuch, President Trump’s pick to replace Justice Scalia, will appear before the US Senate Judiciary Committee, and endure questioning as to his eligibility to become the country’s 113th Supreme Court justice.
I recently wrote about the issues behind the nomination process, namely that the Democrats might seek to block the nomination following the Republicans’ successful campaign to block President Obama’s nominee last year.
As the hearing gets underway, I thought it might be useful to examine the process itself, and consider how today’s process will compare to other Supreme Court confirmations in recent years.
The appointment and confirmation of Justices to the US Supreme Court involves following several steps laid down within the United States Constitution, which have been further refined and developed by decades of tradition. Candidates are nominated by the President of the United States, and must face a series of hearings during which both the nominee and other witnesses make statements and answer questions before the Senate Judiciary Committee. The Committee can vote to send the nomination to the full United States Senate. Confirmation by the Senate enables the President to formally appoint the candidate to the court.
In modern times, the confirmation process has garnered some attention from special-interest groups, many of which lobby senators to confirm or to reject a nominee, depending on whether the nominee’s track record aligns with the group’s views.
The Senate Judiciary Committee conducts hearings, questioning nominees to determine their suitability. By convention, nominees avoid revealing too much about their views on the Constitution. At the close of confirmation hearings, the Committee votes on whether the nomination should go to the full Senate with a positive, negative or neutral report.
At the Senate, a simple majority vote is required to confirm or to reject a nominee. However, a successful filibuster threat could add the requirement of a supermajority of 60 needed in favour of cloture, which would allow debate to end and force a final vote on confirmation. Rejections are relatively uncommon – the Senate has explicitly rejected just twelve Supreme Court nominees in its history. While Senators may attempt to filibuster a Supreme Court nominee in an attempt to thwart confirmation, no nomination for Associate Justice has ever been filibustered.
Once the Senate confirms the nomination by an affirmative vote, the Secretary of the Senate attests to a resolution of confirmation and transmits it to the White House. The President then prepares and signs a commission, and causes the Seal of the United States Department of Justice to be affixed to the document before the new Justice can take office. The date of commission determines a Justice’s seniority. A ceremony is then held, in which the Justice must take the Constitutional Oath, used for every federal and state officeholder below the President, and the Judicial Oath, used for federal judges before entering into the execution of their office.
Past Confirmation hearings: the Bush Administration
President George W. Bush’s first opportunity to make a Supreme Court nomination came in July 2005, when Justice Sandra Day O’Connor announced her intention to retire. This was the first vacancy on the Court in over a decade. Bush nominated D.C. Circuit Judge John Roberts on 19th July, 2005. While his nomination was pending, Chief Justice William Rehnquist, who had been battling thyroid cancer, passed away on the 3rd September.
With Justice Rehnquist’s passing, Bush then had to rethink his strategy for filling two vacancies on the Supreme Court. He decided to withdraw Roberts’ nomination to be an Associate Justice, instead announcing him as his nominee for Chief Justice on the 5th September. The Senate Judiciary Committee met across the 12th – 15th September for Judge Roberts’ confirmation hearing, and one week later, the Committee voted 13-5, with three Democrats joining the Republicans, to send him to the full Senate. The Senate voted to confirm Roberts on the 29th September 2005, just in time for him to join the Court before the start of its 2005-2006 term the following week.
After deciding to nominate Judge Roberts to be Chief Justice, Bush initially selected White House Counsel Harriet Miers – a lawyer who served as Bush’s personal lawyer before he became President – as the nominee for Associate Justice on the 3rd October. As a result of a campaign by conservatives who wanted a nominee with a demonstrated conservative record and judicial experience, Miers withdrew her nomination weeks later.
Bush then announced his pick of Third Circuit Judge Samuel Alito on the 31st October. Judge Alito’s hearing was not held until 9th – 13th January. Less than two weeks later, on the 24th January, the Senate Judiciary Committee voted 10-8 to send him to the full Senate. Some 24 Senators, -including one Sen Obama – attempted to lead a filibuster to block Judge Alito’s confirmation, but they were unsuccessful.
The Senate ultimately confirmed Alito by a vote of 58-42 on the 31st January 2006, with four Democrats joining the Republicans.
(And as fate would have it, Obama as President later expressed regrets about this filibuster attempt when Senate Republicans announced they would not confirm a nominee to the vacancy left by Justice Scalia’s passing during Obama’s final year in office.)
The Obama Administration
President Barack Obama’s first opportunity to pick a Supreme Court justice came when Justice David Souter announced his retirement in 2009. Obama selected Second Circuit Judge Sonia Sotomayor, making the announcement on the 26th May.
Judge Sotomayor’s hearing was held across the 13th – 16th July. Highlights from the hearing include Republican senators grilling Judge Sotomayor about her ‘controversial‘ views, including her claim that appellate courts “make policy”, and that she believed “a wise Latina woman” would “reach a better conclusion than a white male” judge. Two weeks later, the Senate Judiciary committee voted 13-6 to send her to the full Senate. Republican Sen. Lindsey Graham joined Democrats on the committee in that vote. Nine days later, on the 6th August 2009, the Senate voted to confirm Sotomayor by a vote of 68-31, with nine Republicans voting for her confirmation.
The following year, Obama had another chance to nominate a Supreme Court Justice. He chose his Solicitor General, Elena Kagan, to replace Justice John Paul Stevens, announcing the nomination on the 10th May 2010.
Obama administration senior adviser David Axelrod later recounted the story of Justice Scalia approaching him at an event shortly after Justice Souter announced he would retire in 2009. Scalia apparently said to Axelrod: “I have no illusions that your man will nominate someone who shares my orientation … But I hope he sends us someone smart.” He continued, “Let me put a finer point on it … I hope he sends us Elena Kagan.”
Kagan’s hearing took place across 28th June to the 1st July. Three weeks later, the Senate Judiciary Committee voted 13-6 to send her to the full Senate. Once again, Republican Senator Lindsey Graham joining the Democrats in the vote. Two weeks later, the Senate voted 63-37 to confirm her. Five Republicans and two Independents joined the Democrats.
As the Obama administration came to a close, it seemed unlikely that another vacancy would occur on the Supreme Court. Then on the 13th February 2016, the news broke that Justice Scalia had died.
The upcoming Presidential election thus suddenly took on a new level of significance as Senate Republicans vowed to keep the seat open so that the next President could fill it. Nevertheless, Obama nominated Merrick Garland, Chief Judge of the D.C. Circuit, but Senate Republicans refused to allow the nomination to move forward.
And so here we are today, awaiting the first day of Committee hearings for Judge Gorsuch. Whether the cross-party support in voting to send a candidate to the full Senate as witnessed during both the Bush and Obama administrations will be witnessed is the key question.