page_title: Appointment and confirmation to the Supreme Court of the United States
section_title: Confirmation
hierarchical_section_title: Appointment and confirmation to the Supreme Court of the United States / Confirmation
caption_attribution_description: English: The Roberts Court, November 30, 2018. Seated, from left to right: Justices Stephen G. Breyer and Clarence Thomas, Chief Justice John G. Roberts, Jr., and Justices Ruth Bader Ginsburg and Samuel A. Alito. Standing, from left to right: Justices Neil M. Gorsuch, Sonia Sotomayor, Elena Kagan, and Brett M. Kavanaugh. Photograph by Fred Schilling, Supreme Court Curator's Office.
context_page_description: The appointment and confirmation of Justices to the Supreme Court of the United States involves several steps set forth by 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 in which both the nominee and other witnesses make statements and answer questions before the Senate Judiciary Committee, which can vote to send the nomination to the full United States Senate. Confirmation by the Senate allows the President to formally appoint the candidate to the court. The Constitution does not set any qualifications for service as a Justice, thus the President may nominate any individual to serve on the Court.
  Senate cloture rules historically required a two-thirds affirmative vote to advance nominations to a vote; this was changed to a three-fifths supermajority in 1975. In November 2013, the then-Democratic Senate majority eliminated the filibuster for executive branch nominees and judicial nominees except for Supreme Court nominees by invoking the so-called nuclear option.
context_section_description: In modern times, the confirmation process has attracted considerable public attention. The Senate Judiciary Committee plays a key role in that process, as each Supreme Court nomination comes before it for review. The committee conducts hearings, examining the background of the nominee, and questioning him or her about their views on a variety of cases and their general judicial philosophy. 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.
  The committee's practice of personally interviewing nominees is relatively recent, beginning with Harlan Fiske Stone in 1925. Some western senators were concerned with his links to Wall Street and expressed their opposition when Stone was nominated. Stone proposed what was then the novelty of appearing before the Judiciary Committee to answer questions; his testimony helped secure a confirmation vote with very little opposition. The second nominee to appear before the Judiciary Committee was Felix Frankfurter, who only addressed (at the committee's request) what he considered to be slanderous allegations against him. The modern practice of the committee questioning nominees on their judicial views began with the nomination of John Marshall Harlan II in 1955; the nomination came shortly after the Supreme Court handed down its landmark Brown v. Board of Education decision, and several southern senators attempted to block Harlan's confirmation, hence the decision to testify.
  Once the committee reports out the nomination, it is put before the whole Senate for final consideration. A simple majority vote is required to confirm or to reject a nominee. Historically, such rejections are relatively uncommon. Of the 37 unsuccessful Supreme Court nominations since 1789, only 11 nominees have been rejected in a Senate roll-call vote. The most recent rejection of a nominee by vote of the full Senate came in October 1987, when the nomination of Robert Bork as an associate justice was rebuffed by a 42–58 vote.
  Prior to 2017, a successful filibuster threat could add the requirement of a supermajority of 60 needed in favor of cloture, which would allow debate to end and force a final vote on confirmation. Under the old rule, a nominee could be filibustered once debate on the nomination had begun in the full Senate. A filibuster indefinitely prolongs the debate, preventing a final vote on the nominee. President Lyndon Johnson's 1968 nomination of incumbent Associate Justice Abe Fortas to succeed Earl Warren as chief justice, during the final year of his presidency, was a successful fillabuster as it forced the president to withdraw the nomination. The effort included both Republican and Democratic senators concerned about Fortas' business ethics. Though prevented from becoming chief justice, Fortas remained on the Court as an associate justice. More recently, an effort to filibuster President Donald Trump's nomination of Neil Gorsuch to the seat left vacant by Antonin Scalia's death was effective, if not successful. Unlike the Fortas filibuster, however, only Democratic Senators voted against cloture on the Gorsuch nomination, citing his perceived conservative judicial philosophy, and the Republican leadership's prior refusal to take up President Barack Obama's nomination of Merrick Garland to fill the vacancy. The Republican majority responded by changing the rules to allow for filibusters of Supreme Court nominations to be broken with only 51 votes rather than 60. The precedent for this action had been set in November 2013, when the Democrats, who then held the majority, changed the rules, lowering the threshold for advancing nominations to lower court and executive branch positions from 60 votes to a simple majority, but explicitly excluded Supreme Court nominations from the change.
  There are others ways that a nomination can be derailed prior to the final vote in the Senate. A president has the prerogative to withdraw a nomination at any point during the process, typically doing so if it become
caption: The Roberts Court (October 2018 – present). Front row (left to right): Stephen Breyer, Clarence Thomas, John Roberts (Chief Justice), Ruth Bader Ginsburg, and Samuel Alito. Back row (left to right): Neil Gorsuch, Sonia Sotomayor, Elena Kagan, and Brett Kavanaugh.
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