Question: when nominating a justice to the supreme court presidents

title: Appointment and confirmation to the Supreme Court of the United States
text: Less commonly , though with historical precedent , vacancies may occur as a result of Congress changing the size of the Court . Because the Constitution does not specify the Court 's size , it was left to Congress to determine the matter through law , and a small number of statutes have legally changed the size of the Court throughout its history . Changing the Court 's size can have the effect of changing the seats on the Court ; a newly created seat brings with it a vacancy which must be filled by an initial officeholder . The original Judiciary Act of 1789 called for six justices , vacancies promptly filled by the appointments of George Washington , resulting in the Court 's first complete composition . An 1801 act called for the Court to be reduced to five justices upon its next vacancy , but was swiftly obviated by an 1802 act which restored the Court 's legal size to six before any such vacancy occurred . In 1807 , the Court 's size was increased to seven , creating one new vacancy filled by Thomas Todd . Again in 1837 , the Court 's size was increased to nine , the two new vacancies being filled by John Catron and John McKinley . An 1863 act increased the Court 's size to ten , the vacancy being filled by Stephen Johnson Field . Although an 1866 act provided that the Court 's size would be thinned from ten to seven through attrition ( and which did result in the elimination of two seats while in effect ) , a final 1869 act interrupted the plan set forth in 1866 : the Court 's size shall be nine , the legally prescribed full strength which has stood ever since . Consequently , one final seat was created and filled by Joseph Bradley .