Last week, Amy Coney Barrett’s hearing in front of the Judicial Committee came to a close. You may have tuned in, got highlights from the news, or stayed away altogether. Regardless, a lot of people are wondering what happens next. Some are fearful at what seems like an inevitable confirmation, while others are looking forward to a solidified conservative majority.
In order to help you build your own opinion on this potential confirmation – let’s get an understanding of the Supreme Court confirmation process, what is actually written in the constitution and how is the process typically handled?
What does the Constitution say about the Supreme Court?
The Constitution lays out the general and quite vague plan of how the judicial system should work. It mentions one supreme court, and “inferior” courts. The power to establish, and change the courts is granted to Congress. See the full write up of this article below:
Article III, Section I states that “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”
The official establishment of the Supreme Court, with 6 Justices at its inauguration, was created through the Judiciary Act of 1789 which was passed by Congress in its first session. Since then, the number of Justices fluctuated from 6-10, with the fixed number of 9 emerging following the Civil War.
The Constitution does specify a plan of nomination, but again…it’s very vague; the President nominates and the Senate confirms (through advice and consent).
Article II, Section 2: “[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint…Judges of the Supreme Court.”
Things the Constitution does NOT mention: How long a Supreme Court Justice should serve, if the nominee needs to have certain qualifications, or what the Senatorial process of confirmation needs to look like.
While there is no official road map, the typical process looks something like this
A vacancy occurs and the current President dusts off their short-list of nominees. There are internal conversations and meetings, background checks, discussions with Senators, etc….and then a nominee is announced. The nominee goes before the Senatorial Judicial Committee and gets questioned on past judicial decisions, written opinions, background, education and work history. Essentially nothing is off the table at these hearings, and it is up to the Chairman of the Judicial Committee to lay out the plan of how the hearings will go. During the hearings other witnesses can be called to either support or oppose the nominee. Following the hearings, the Judicial committee votes and sends the nominee to the full Senate with either a supportive recommendation, a negative recommendation, or a neutral one. At this point, the full Senate debates the nomination among themselves…and then they take it to a vote.
In the olden days, aka before 2017, a super majority of 60 votes was needed to confirm a nominee. But following the rule change in 2017 by the majority Republican Senate, only a “simple majority” of 51 votes is needed to confirm. In the event there are only 50 votes, the Vice President casts the deciding ballot.
Are Things Being Rushed?
You may have heard that this process is being “rushed”, in an effort to get the confirmation done before Election Day. And so the question comes up, is there a standard of how many days it should take to confirm a Supreme Court nominee? If we’re going by what is mentioned in the Constitution, then the answer is no. It is up to the Senate to decide how quickly they want the process to go. But in the past, this process has taken anywhere from ~70-100 days, which is why this process, which is seemingly going to take less than a month, is being referred to as rushed.
For reference, here are the most recent 9 S.C. Justices with the estimated number of days it took to complete their confirmation process:
- Justice Brett Kavanaugh – 89 days
- Justice Neil Gorsuch – 66 days
- Justice Elena Kagan -87 days
- Justice Sonia Sotomayor – 72 days
- Justice Samuel Alito – 92 days
- Chief Justice John Roberts – 72 days
- Justice Stephen Breyer – 77 days
- Justice Ruth Bader Ginsburg – 55 days
- Justice Clarence Thomas – 106 days
It’s an Election Year…Does That Matter?
Of the above 9, none have been nominated in an election year – the last time such a nomination has occurred when the President and Senate were of the same party (and therefore the nomination was taken up by the Senate*) was 1968. In that instance the nomination of Abe Fortas failed as a result of a bipartisan filibuster, due to him being “ethically challenged”.
* In 2016, due to the vacancy left by Justice Scalia’s death, President Obama nominated Judge Merrick Garland to the court. The Senate Republican Majority refused to hold confirmation hearings, with the reasoning that there was a party dispute between the President’s office and the Senate. As a result, the seat left open for the next President to fill.
As you can see, there is no laid out clear path for how these confirmations work. We have a vague outline in the constitution, and years of experience by which most people go by. In our tumultuous time, it appears as though each party has their own perception of what is right in this situation.
What Do YOU Think?
Should the vacancy be left open until after the election, and potentially wait for a new President? Or is the Majority party in the right for holding this nomination, and rushing to confirm while they still can? How does this affect the Judicial branch which should be a non-partisan body?