Supreme Court Appointment Process: President’s Selection of a Nominee
Released: 2018-06-27T00:00:00

Background

The appointment of a Supreme Court Justice is an event of major significance in American politics. Each appointment to the nine-member Court is of consequence because of the enormous judicial power that the Court exercises, separate from, and independent of, the executive and legislative branches. While "on average, a new Justice joins the Court almost every two years," the time at which any given appointment will be made to the Court is unpredictable. Appointments may be infrequent (with a vacancy on the Court occurring only once or twice, or never at all, during a particular President's years in office) or occur in close proximity to each other (with a particular President afforded several opportunities to name persons to the Court).

The procedure for appointing a Justice to the Supreme Court is provided for in the U.S. Constitution in only a few words. The "Appointments Clause" (Article II, Section 2, Clause 2) 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 the process of appointing Justices has undergone some changes over two centuries, its most essential feature—the sharing of power between the President and the Senate—has remained unchanged: To receive appointment to the Court, one must first be formally selected ("nominated") by the President and then approved ("confirmed") by the Senate.

Although not mentioned in the Constitution, an important role is also played midway in the process—after the President selects, but before the Senate as a whole considers the nominee—by the Senate Judiciary Committee. Since the end of the Civil War, almost every Supreme Court nomination received by the Senate has first been referred to and considered by the Judiciary Committee before being acted on by the Senate as a whole.

For the President, the appointment of a Supreme Court Justice can be a notable measure by which history will judge his Presidency. For the Senate, a decision to confirm is a solemn matter as well, for it is the Senate alone, through its "Advice and Consent" function, without any formal involvement of the House of Representatives, which acts as a safeguard on the President's judgment. Traditionally, the Senate has tended to be less deferential to the President in his choice of Supreme Court Justices than in his appointment of persons to high executive branch positions. The more exacting standard usually applied to Supreme Court nominations reflects the special importance of the Court, coequal to and independent of the presidency and Congress. Senators are also mindful that, as noted earlier, Justices receive what can amount to lifetime appointments.

On June 27, 2018, Justice Anthony Kennedy announced his retirement from the Court, effective July 31, 2018. This report will be further updated upon the selection of a nominee by President Trump.

How Supreme Court Vacancies Occur10

Under the Constitution, Justices on the Supreme Court hold office "during good Behaviour," in effect typically receiving lifetime appointments to the Court. Once confirmed, Justices may hold office for as long as they live or until they voluntarily step down. Such job security in the federal government is conferred solely on judges and, by constitutional design, is intended to insure the independence of the federal judiciary, including the Supreme Court, from the President and Congress.

A President has no power to remove a Supreme Court Justice from office. A Justice may be removed by Congress, but only through the process of impeachment by the House and conviction by the Senate. Only one Justice has ever been impeached (in an episode which occurred in 1804), and he remained in office after being acquitted by the Senate. 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.

Death of a Sitting Justice

The prospect of lifetime tenure, interesting work, and the prestige of the office often result in Justices choosing to serve on the Court for as long as possible. Consequently, it has not been unusual, historically, for Justices to die while in office. For example, death in office was common on the Court during the first half of the 20th century—14 (or 41%) of 34 vacancies between 1900-1950 occurred as a result of a Justice dying while serving on the Court. Additionally, all five Court vacancies occurring between 1946 and 1954 were due to the death of a sitting Justice. Since 1954, however, only 2 of 24 vacancies occurring on the Court were the result of a Justice dying while still in office.

Retirement or Resignation of a Sitting Justice

Since 1954, voluntary retirement has been by far the most common way in which Justices have left the bench (20, or 83%, of 24 vacancies occurring after 1954 resulted from retirements).

In contrast to retirement, resignation (i.e., leaving the bench before becoming eligible for retirement compensation) is rare. In recent history, two Justices have resigned from the Court. Justice Arthur Goldberg resigned in 1965 to assume the post of U.S. Ambassador to the United Nations. Justice Abe Fortas resigned four years later, in 1969, after protracted criticism over controversial consulting work while on the bench and a failed nomination to be elevated from Associate Justice to Chief Justice. When Justices retire or resign, the President is usually notified by formal letter.

Pursuant to a law enacted in 1939, a Justice (or any other federal judge receiving a lifetime appointment) may also retire if "unable because of permanent disability to perform the duties of his office," by furnishing the President a certificate of disability. Prior to 1939, specific legislation from Congress was required to provide retirement benefits to a Justice departing the Court because of disability who otherwise would be ineligible for such benefits, due to insufficient age and length of service. In such circumstances in 1910, for instance, Congress took legislative action granting a pension to Justice William H. Moody. As the Washington Post reported at the time, although illness had kept Justice Moody from the bench for "almost a year," he was not yet eligible for retirement.

Nomination of a Sitting Justice to Chief Justice Position

When a Chief Justice vacancy arises, the President may choose to nominate a sitting Associate Justice for the Court's top post. If the Chief Justice nominee is confirmed, he or she must, to assume the new position, resign as Associate Justice, requiring a new nominee from the President to fill the newly vacated Associate Justice seat.

Note, however, that the scenario described above is a relatively rare occurrence. During the 1900-2009 period, Presidents attempted to elevate Associate Justices to Chief Justice four times, with the Senate confirming the nominees on three occasions. Most recently, in 1986, President Ronald Reagan nominated then-Associate Justice William H. Rehnquist to be Chief Justice after Chief Justice Burger announced he was stepping down from the Court. Consequently, President Reagan also nominated Antonin Scalia to fill the Associate Justice vacancy that would ultimately be created by Justice Rehnquist's elevation to Chief Justice.

Advice and Consent

As discussed above, the need for a Supreme Court nominee arises when a vacancy occurs on the Court due to the death, retirement, or resignation of a Justice (or when a Justice announces his or her intention to retire or resign). It then becomes the President's constitutional responsibility to select a successor to the vacating Justice, as well as the constitutional responsibility of the Senate to exercise its role in providing "advice and consent" to the President.

The Role of Senate Advice

Constitutional scholars have differed as to how much importance the Framers of the Constitution attached to the word "advice" in the phrase "advice and consent." The Framers, some have maintained, contemplated the Senate performing an advisory, or recommending, role to the President prior to his selection of a nominee, in addition to a confirming role afterwards. Others, by contrast, have insisted that the Senate's "advice and consent" role was meant to be strictly that of determining, after the President's selection had been made, whether to approve the President's choice. Bridging these opposing schools of thought, another scholar recently asserted that the "more sensible reading of the term 'advice' is that it means that the Senate is constitutionally entitled to give advice to a president on whom as well as what kinds of persons he should nominate to certain posts, but this advice is not binding." Historically, the degree to which Senate advice has been sought or used has varied, depending on the President.

It is a common, though not universal, practice for Presidents, as a matter of courtesy, to consult with Senate party leaders as well as with members of the Senate Judiciary Committee before choosing a nominee. Senators who candidly inform a President of their objections to a prospective nominee may help in identifying shortcomings in that candidate or the possibility of a confirmation battle in the Senate, which the President might want to avoid. Conversely, input from the Senate might draw new Supreme Court candidates to the President's attention, or provide additional reasons to nominate a person who already is on the President's list of prospective nominees.

As a rule, Presidents are also careful to consult with a candidate's home-state Senators, especially if they are of the same political party as the President. The need for such care is due to the long-standing custom of "senatorial courtesy," whereby Senators, in the interests of collegiality, are inclined, though not bound, to support a Senate colleague who opposes a presidential nominee from that Member's state. While usually invoked by home-state Senators to block lower federal court nominees whom they find unacceptable, the custom of "senatorial courtesy" has sometimes also played a part in the defeat of Supreme Court nominations.

Besides giving private advice to the President, Senators may also counsel a President publicly. A Senator, for example, may use a Senate floor statement or issue a statement to the news media indicating support for, or opposition to, a potential Court nominee, or type or quality of nominee, for the purpose of attracting the President's attention and influencing the President's choice.

Advice from Other Sources

Advice, it should be noted, may come to Presidents not only from the Senate but from many other sources. One key source of influence may be high-level advisers within the President's Administration. Others who may provide advice include House Members, party leaders, interest groups, news media commentators, and, periodically, Justices already on the Court. Presidents are free to consult with, and receive advice from, whomever they choose.

Criteria for Selecting a Nominee

While the precise criteria used in selecting a Supreme Court nominee vary from President to President, two general motivations appear to underlie the choices of almost every President. One is the desire to have the nomination serve the President's political interests (in the partisan and electoral senses of the word "political," as well as in the public policy sense); the second is to demonstrate that a search was successfully made for a nominee having the highest professional qualifications.

Political Considerations

Virtually every President is presumed to take into account a wide range of political considerations when faced with the responsibility of filling a Supreme Court vacancy. For instance, most Presidents, it is assumed, will be inclined to select a nominee whose political or ideological views appear compatible with their own. Specifically, "Presidents are, for the most part, results-oriented. This means that they want Justices on the Court who will vote to decide cases consistent with the president's policy preferences."

The President also may consider whether a prospective nomination will be pleasing to the constituencies upon whom he especially relies for political support or whose support he would like to attract. For political or other reasons, such nominee attributes as party affiliation, geographic origin, ethnicity, religion, and gender may also be of particular importance to the President. A President also might take into account whether the existing "balance" among the Court's members (in a political party, ideological, demographic, or other sense) should be altered. The prospects for a potential nominee receiving Senate confirmation are another consideration. Even if a controversial nominee is believed to be confirmable, an assessment must be made as to whether the benefits of confirmation will be worth the costs of the political battle to be waged.

Professional Qualifications

Most Presidents also want their Supreme Court nominees to have unquestionably outstanding legal qualifications. Presidents look for a high degree of merit in their nominees not only in recognition of the demanding nature of the work that awaits someone appointed to the Court, but also because of the public's expectations that a Supreme Court nominee be highly qualified. With such expectations of excellence, Presidents often present their nominees as the best person, or among the best persons, available. Many nominees, as a result, have distinguished themselves in the law (as lower court judges, legal scholars, or private practitioners) or have served as Members of Congress, as federal administrators, or as governors. Although neither the Constitution nor federal law requires that a Supreme Court Justice be a lawyer, every person nominated to the Court thus far has been.

After 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."

Figure 1 reports, from 1945 to the present, the type of professional position or occupation held by an individual at the time of his or her nomination to the Supreme Court. So, for example, at the time of his nomination by President Truman in 1945, Harold H. Burton was serving as a U.S. Senator from Ohio. Since 1945, the most common type of professional experience at the time of his or her nomination has been service as a federal appellate court judge (23, or 62%, of 37 nominees), followed by service as an official in the executive branch (8, or 22%, of 37 nominees). Overall, at least since 1945, it has been relatively rare for a nominee, at the time of nomination, to be serving as a state judge, working as an attorney in private practice, or holding elective office.

Note that the percentage of nominees serving as U.S. appellate court judges at the time of nomination is even greater during relatively recent presidencies. From 1981 to the present, for example, 13 (or 81%) of 16 nominees were serving as appellate judges immediately prior to nomination. In contrast, since 1981, no nominees to the Court were engaged in private practice or serving in elective office at the time of nomination.

A President's search for professional excellence in a nominee rarely proceeds without also taking political factors into account. Rather, "more typically," a President "seeks the best person from among a list of those who fulfill certain of these other [political] criteria and, of course, who share a president's vision of the nation and the Court."

Integrity and Impartiality

Closely related to the expectation that a Supreme Court nominee have excellent professional qualifications are the ideals of integrity and impartiality in a nominee. Most Presidents presumably will be aware of the historical expectation, dating back to Alexander Hamilton's pronouncements in the Federalist Papers , that a Justice be a person of integrity who is able to approach cases and controversies impartially, without personal prejudice. In that same spirit, a bipartisan study commission on judicial selection in 1996 declared that it was "most important" to appoint judges who were not only learned in the law and conscientious in their work ethic but who also possessed "what lawyers describe as 'judicial temperament.'" This term, the commission explained, "essentially has to do with a personality that is evenhanded, unbiased, impartial, courteous yet firm, and dedicated to a process, not a result." Accordingly, Presidents sometimes will cite the integrity or fairness of Supreme Court nominees to buttress the case for their appointment to the Court.

Other Factors

Any given President also might single out other qualities as particularly important for a Supreme Court nominee to have, as President Barack Obama did in 2009, when announcing his nomination of Judge Sonia Sotomayor to the Court. In prefatory remarks to that announcement, President Obama cited selection criteria similar to those mentioned by other recent Presidents, such as "mastery of the law," the "ability to hone in on the key issues and provide clear answers to complex legal questions," and "a commitment to impartial justice."

He added, however, that such qualities, while "essential" for anyone sitting on the Supreme Court, "alone are insufficient," and that "[w]e need something more." An additional requisite quality, President Obama said, was "experience," which he explained was

Experience being tested by obstacles and barriers, by hardship and misfortune, experience insisting, persisting, and ultimately, overcoming those barriers. It is experience that can give a person a common touch and a sense of compassion, an understanding of how the world works and how ordinary people live. And that is why it is a necessary ingredient in the kind of Justice we need on the Supreme Court.

A President, as well, may consider additional factors when the Supreme Court vacancy to be filled is that of the Chief Justice. Besides requiring that a candidate be politically acceptable, have excellent legal qualifications, and enjoy a reputation for integrity, a President might be concerned that his nominee have proven leadership qualities necessary to effectively perform the tasks specific to the position of Chief Justice. Such leadership qualities, in the President's view, could include administrative and human relations skills, with the latter especially important in fostering collegiality among the Court's members.

The President also might look for distinction or eminence in a Chief Justice nominee sufficient to command the respect of the Court's other Justices, as well as to further public respect for the Court. A President, too, might be concerned with the age of the Chief Justice nominee, requiring, for instance, that the nominee be at least of a certain age (to insure an adequate degree of maturity and experience relative to the other Justices) but not above a certain age (to allow for the likely ability to serve as a leader on the Court for a substantial number of years).

Background Investigations

An important part of the selection process involves investigating the background of prospective nominees. In recent years the investigative effort generally has followed two primary tracks—one concerned with the public record and professional credentials of a person under consideration, the other with the candidate's private background. The private background investigation, which includes examination of a candidate's personal financial affairs, is conducted by the Federal Bureau of Investigation (FBI). The investigation into a candidate's public record and professional abilities ordinarily is headed by high Justice Department officials, White House aides, or both, working together.

The investigative process may be preliminary in nature when the objective is to identify potential candidates and consider their relative merits based on information already known or readily available. The investigations become more intensive as the initial list is narrowed. The object then becomes to learn as much as possible about the prospective nominees—to accurately gauge their qualifications and their compatibility with the President's specific requirements for a nominee, and, simultaneously, to flag anything in their backgrounds that might be disqualifying or jeopardize their chances for Senate confirmation. For help in evaluating the backgrounds of Court candidates, Presidents sometimes also have enlisted the assistance of private lawyers, legal scholars, or, on rare occasions, the American Bar Association (ABA). Near the culmination of this investigative effort, the President might want to personally meet with one or more of the candidates before finally deciding whom to nominate.

During the pre-nomination phase, Presidents vary in the degree to which they publicly reveal the names of individuals under consideration for the Court. Sometimes, Presidents seek to keep confidential the identity of their Court candidates. Such secrecy may allow a President to reflect on the qualifications of prospective nominees, and the background investigations to proceed, away from the glare of publicity, news media coverage, and outside political pressures. Other times, the White House may, at least in the early pre-nomination stage, reveal the names of Supreme Court candidates being considered. Such openness may be intended to serve various purposes—among them, to test public or congressional reaction to potential nominees, please political constituencies who would identify with identified candidates, or demonstrate the President's determination to conduct a comprehensive search for the most qualified person available.

An Administration, of course, need not wait until a vacancy occurs on the Court to begin investigating the backgrounds of potential nominees. Immediately after President George W. Bush was sworn into office in 2001, according to a recent book on Supreme Court nominations, "his staff began putting together a list of potential nominees and conducting extensive background research on them." The book continued:

Officials believed [Chief Justice William H.] Rehnquist was likely to retire in the summer of 2001, and they were determined to be ready. Each young lawyer in the White House counsel's office, most of whom had clerked on the Supreme Court, was assigned a candidate and made responsible for writing a lengthy report about him or her. In the late spring, then-White House counsel Alberto Gonzalez and his deputy Tim Flanigan began secretly interviewing some of those possible replacements.

The advance work was designed to ensure that George W. Bush would be prepared when a Justice stepped down. The early in-depth research and interviews with prospective nominees were important in ensuring Bush would have coolheaded advice, removed from any external political pressure to select a particular nominee in the hours after a retirement.

Speed by Which a President Selects a Nominee

Figure 2 shows the number of days that elapsed between the date on which it was publicly known that a Justice was leaving the Court and the date on which the President publicly identified a nominee to replace the departing Justice. Note that the figure only shows those vacancies on the Court, since 1975, which required only one nomination to be filled. Consequently, the vacancy created by the death of Justice Scalia is not included in Figure 2 (since more than one nomination was made to fill it).

When a Justice steps down from the Court (or announces his or her intention to do so), Presidents sometimes move quickly, selecting their nominee within a week of the vacancy being announced. Presidents Reagan and George H. W. Bush, for instance, selected most of their Supreme Court nominees quickly, within days of the vacating Justices publicly announcing their retirements from the Court.

President Clinton, in contrast, took more time in selecting his two Supreme Court nominees, nominating Ruth Bader Ginsburg on June 22, 1993, nearly three months after the retirement announcement of Justice Byron R. White, and nominating Stephen G. Breyer on May 17, 1994, approximately five weeks after the retirement announcement of Justice Harry A. Blackmun.

Likewise, President George W. Bush's first two Supreme Court selections were not made immediately upon the heels of a Justice's retirement announcement: President Bush announced his choice of John G. Roberts Jr. to succeed Sandra Day O'Connor 18 days after she submitted her retirement letter to the President, and he announced his choice of Harriet E. Miers to succeed Justice O'Connor 28 days after withdrawing the aforementioned Roberts nomination. President Bush did, however, move much more swiftly in selecting a nominee to succeed Chief Justice William H. Rehnquist, announcing his choice of John G. Roberts Jr. for that office two days after the death of Chief Justice Rehnquist on September 3, 2005.

Most recently, President Obama's three Supreme Court selections were made within approximately one month of an incumbent Justice departing the Court. He selected Sonia Sotomayor 25 days after Justice David Souter announced he was leaving the Court; Elena Kagan 31 days after Justice Stevens announced his retirement; and Merrick Garland 32 days following the death of Justice Scalia.

Vacancies That Have Had Multiple Nominations

As noted previously, Figure 2 includes only those vacancies on the Court, occurring since 1975, that did not have multiple nominations by a President in order for the vacancy to be filled. Specifically, since 1975, there have been three vacancies on the Court that had more than one nomination by a President in order for the vacancy to be filled—the most recent being the vacancy created on the Court by the death of Justice Scalia.

The Powell Vacancy

The first vacancy during this period that had multiple nominations was the vacancy created by the departure of Justice Lewis Powell in 1987. President Reagan first nominated Robert Bork, an appellate judge on the D.C. Circuit, to fill the vacancy; Judge Bork was nominated five days after Justice Powell announced his retirement. The Bork nomination was ultimately rejected by the Senate and, as a result, President Reagan announced his intention to nominate Douglas H. Ginsburg, another appellate judge on the D.C. Circuit. President Reagan announced his intention to nominate Judge Ginsburg six days after the Bork nomination was rejected by the Senate. Judge Ginsburg was never formally nominated, and four days later Mr. Ginsburg withdrew his name from consideration, President Reagan nominated Anthony Kennedy (whose nomination was ultimately approved by the Senate).

Altogether, a total of 138 days, or approximately 4.5 months, elapsed from Justice Powell announcing his retirement to President Reagan nominating Anthony Kennedy to the vacancy.

The O'Connor Vacancy

The second vacancy that had multiple nominations to be filled was the vacancy created by the retirement of Justice Sandra Day O'Connor. Eighteen days elapsed from Justice O'Connor's announcement that she would step down from the Court (contingent upon the confirmation of her successor) to President G.W. Bush's nomination of John Roberts Jr. to replace her. The Roberts nomination was later withdrawn by the President (in order for Mr. Roberts to be re-nominated to fill the vacancy in the Chief Justice position arising from Justice Rehnquist's death); 28 days after the withdrawal of the Roberts nomination, President Bush nominated Harriet Miers to replace Justice O'Connor. The Miers nomination was later withdrawn by the President and four days later he nominated Samuel Alito (whose nomination was confirmed by the Senate).

Altogether, a total of 122 days, or approximately 4 months, elapsed from Justice O'Connor's announcement that she intended to retire to President G.W. Bush's nomination of Samuel Alito.

The Scalia Vacancy

The third vacancy during this period that had more than one nomination prior to the appointment of a new Justice is the vacancy created by the death of Justice Antonin Scalia on February 13, 2016. In contrast to the Powell and O'Connor vacancies discussed above, this is the sole vacancy during this period for which nominations to the Court will have been made by two different Presidents. Specifically, President Obama nominated Merrick Garland on March 16, 2016 (32 days after Justice Scalia's death). The Garland nomination was not acted upon by the Senate during the second session of the 114 th Congress and was returned to the President on January 3, 2017. The Garland nomination was pending before the Senate for a total of 293 days, or approximately 10 months, prior to being returned to the President.

On January 31, 2017, President Trump, 11 days after he assumed office on January 20, 2017, announced his intention to nominate Neil Gorsuch to fill the vacancy created by the death of Justice Scalia.

Factors Affecting the Speed by Which a Nominee Is Selected

Advance Notice of Vacancy

A President may be well positioned to make a quick announcement when a retiring Justice alerts the President beforehand (thus giving the President lead time, before the vacancy occurs, to consider whom to nominate as a successor). Even when receiving no advance warning from an outgoing Justice, the President may already have in hand a "short list," prepared precisely for the event of a Court vacancy, of persons already evaluated and acceptable to the President for the appointment.

Strong Preference of President

If the President has a strong personal preference for a particular individual, nominating the person quickly preempts the issue of whether someone else should be nominated. Rather than focus on a range of individuals who should be considered for the Supreme Court, the appointment process moves to the next major stage, to the question of whether that individual should be confirmed.

Sense of Urgency

Presidents also might be moved to nominate quickly in order to minimize the time during which there is a vacancy on the Court. If an actual vacancy is suddenly created—for example, due to an unexpected retirement, resignation, or death of a Justice—a President, as well as Members of the Senate, might be eager to bring the Court back to full strength as soon as possible. A similar sense of urgency might be felt if a Justice has announced the intention to step down from the Court by a date certain in the near future.

When Vacancy Occurs

The speed with which a President chooses a nominee also, as noted above, can be affected by when a seat on the Court is vacated. Sometimes, Justices might announce their retirement when the Court recesses for the summer, in late June or early July, giving the President little or no advance notice. In such situations, a President might decide to nominate quickly, to allow the Senate confirmation process to begin as quickly as possible. A swiftly made nomination, in such a circumstance, affords the Senate Judiciary Committee and the Senate as long as three months (July through September) in which to consider the nomination before the start of the Court's term in early October, thereby increasing the chances of the Court being at full nine-member strength when it reconvenes.

Sometimes, when Justices give advance notice of their intention to retire, Presidents might be under relatively little pressure to nominate quickly. In the spring of 1993, for example, Justice Byron R. White announced he would step down when the Court adjourned for the summer. His advance notice gave President Clinton and the Senate together more than six months in which, respectively, to nominate and confirm a successor before the beginning of the Court's next term in October. A year later, in the spring of 1994, Justice Harry A. Blackmun announced his intention to retire at the end of the Court term then in progress, again affording the President and the Senate ample time to appoint a successor to a retiring Justice before the start of the next Court term. Despite the long lead time afforded by Justice Blackmun's announcement, however, White House advisers reportedly believed it was "important to act quickly" to name a successor to Blackmun. To move quickly, it was reported, would serve to "avoid a repeat of the [previous] year's drawn out process" in which President Clinton engaged in a "very public, three-month search" before nominating Ruth Bader Ginsburg to the Court. After Justice Blackmun's announcement, President Clinton deliberated five weeks before announcing, on May 13, 1994, his selection of U.S. appellate court judge Stephen G. Breyer to be his Supreme Court nominee.

President Barack Obama also was provided considerable advance notice of an upcoming Court vacancy when Justice David H. Souter informed the President by letter on May 1, 2009, of his intention to step down when the Court recessed for the summer (the Court went into summer recess on June 29). Three and a half weeks later, on May 26, President Obama announced his intention to nominate a U.S. appellate judge, Sonia Sotomayor, to succeed Justice Souter. The selection by President Obama was, on the one hand, not as quickly made as some of the nominee selections of Presidents Reagan, George H. W. Bush, and George W. Bush. On the other hand, President Obama took less time than President Clinton did in making his three Court selections.

During the 25 days between Justice Souter's retirement notice and the selection of Judge Sotomayor, President Obama had enough time, in his words, to seek "the advice of Members of Congress on both sides of the aisle, including every member of the Senate Judiciary Committee." That he did not take additional time to decide whom to select might have been influenced by a concern for allowing the Senate to begin considering a Court nomination as soon as possible. The President and some Senate Democrats expressed the hope that the Senate would vote to confirm Judge Sotomayor not merely before the start of the Court's term in October, but before the Senate's August 2009 recess, in order to afford time for her to prepare for that term. (The Senate ultimately confirmed the Sotomayor nomination on August 6, 2009.)

Presidents also may have considerable latitude in deciding when to nominate if an outgoing Justice schedules his or her retirement to take effect only when a successor is confirmed or assumes office. The most recent instance of that occurred when Justice Sandra Day O'Connor, in a July 1, 2005, letter to President George W. Bush, announced her decision to retire from the Court "effective upon the nomination and confirmation" of her successor. At the announcement of Justice O'Connor's retirement, President Bush declared he would "choose a nominee in a timely manner" so that the nominee would receive a Senate hearing and confirmation vote "before the new Supreme Court term begins." Within three weeks he announced his selection of John G. Roberts Jr. to succeed Justice O'Connor. The conditional nature of Justice O'Connor's planned retirement, however, meant that her seat on the Court would be occupied when the Court convened for its October 2005 term, whether or not her successor were confirmed by then.

Ultimately, Justice O'Connor remained on the Court for four months of the new Court term, retiring only on January 31, 2006, when the third person nominated by President Bush to succeed her, Samuel A. Alito Jr., was confirmed by the Senate. During the months that Justice O'Connor remained on the Court, awaiting the confirmation of her successor, the Associate Justice nomination of John G. Roberts Jr. was withdrawn so that President Bush could nominate Roberts to be Chief Justice (following the death of Chief Justice Rehnquist on September 3, 2005); a second nomination to succeed Justice O'Connor, that of White House Counsel Harriet E. Miers, was made, only to be withdrawn three weeks later; and, on November 10, 2005, a third person, Samuel A. Alito Jr., was nominated to succeed Justice O'Connor. For a President, the need to select an Associate Justice nominee might be seen as less urgent than the appointment of a Chief Justice, particularly if, as was the case in 2005, the Chief Justice position is actually vacant and the Associate Justice vacancy is not actual, but prospective.

Potential Drawbacks of Quickly Selecting a Nominee

Selecting a Supreme Court nominee relatively quickly, however, may sometimes have drawbacks. A President may be accused of charging ahead with a nominee without having first adequately consulted with the Senate, or without having taken the time necessary to determine who really would make the best nominee—either in terms of the nominee's professional qualifications or ideological disposition. Also, quick announcements might not allow time for the FBI to conduct a comprehensive background investigation prior to nomination, leaving open the possibility of unfavorable information about the nominee coming to light later.

Some nominees who were selected relatively quickly by a President were ultimately not approved or considered by the Senate (for one or more of the reasons mentioned above). President Reagan, for example, announced his intention to nominate Robert Bork five days after Justice Powell announced his retirement. Six days after the Bork nomination failed in the Senate, President Reagan subsequently announced his intention to nominate Douglas H. Ginsburg (who later asked the President to withdraw his name from consideration for Powell's seat). But note, however, that the relatively quick selection of a nominee by a President does not necessarily mean that the nomination will not be approved by the Senate. David Souter, for example, was nominated three days after Justice Brennan's retirement was publicly announced (and Clarence Thomas was nominated four days after Justice Marshall's retirement).

Recess Appointments to the Court

On 12 occasions (most of them in the 19 th century), Presidents have made temporary appointments to the Supreme Court without submitting nominations to the Senate. These occurred when Presidents exercised their power under the Constitution to make "recess appointments" when the Senate was not in session. Historically, when recesses between sessions of the Senate were much longer than they are today, recess appointments served the purpose of averting long vacancies on the Court when the Senate was unavailable to confirm a President's appointees. The terms of these recess appointments, however, were limited, expiring at the end of the next session of Congress (unlike the potentially lifetime appointments Court appointees receive when nominated and then confirmed by the Senate). Despite the temporary nature of these appointments, every person appointed during a recess of the Senate, except one, ultimately received a later appointment to the Court after being nominated by the President and confirmed by the Senate.

Recess appointments, when they do occur, may cause controversy, in large part because they bypass the Senate and its "advice and consent" role. The last President to make a recess appointment to the Court was Dwight D. Eisenhower. Of the five persons whom he nominated to the Court, three initially received recess appointments and served as Justices before being confirmed by the Senate—Earl Warren (as Chief Justice) in 1953, William Brennan in 1956, and Potter Stewart in 1958.

Senate Resolution 334, 86th Congress

The Senate, on August 29, 1960, adopted S. Res. 334 "expressing the sense of the Senate that the President should not make recess appointments to the Supreme Court, except to prevent or end a breakdown in the administration of the Court's business, and a recess appointee should not take his seat on the Court until the Senate has 'advised and consented' to the nomination." The resolution was adopted by a vote of 48-37, largely along party lines.

Senate proponents of the resolution contended, among other things, that judicial independence would be affected if Supreme Court recess appointees, during the probationary period of their appointment, took positions to please the President (in order not to have the President withdraw their nominations) or to please the Senate (in order to gain confirmation of their nominations). It also was argued that Senate investigation of nominations of these recess appointees was made difficult by the oath preventing sitting Justices from testifying about matters pending before the Court.

Opponents, however, said, among other things, that the resolution was an attempt to restrict the President's constitutional recess appointment powers. Opponents also argued that recess appointments were sometimes called for in order to keep the Court at full strength to handle the Court's large and complex case load, as well as to prevent evenly split rulings by its members. Additionally, opponents argued that the resolution "not only went beyond the 'advise and consent' powers of Congress, but that it was a reflection against [Eisenhower], as well as Chief Justice Earl Warren, and Justices William J. Brennan Jr. and Potter Stewart, who were recess appointees during the Eisenhower Administration."

Because of the criticisms of judicial recess appointments in recent decades, the long passage of time since the last Supreme Court recess appointment in 1958, and the relatively short duration of contemporary Senate recesses (which might diminish the need for recess appointments to the Court), a President in the 21 st century might hesitate to make a recess appointment to the Court and do so only under unusual circumstances. Additionally, recent Supreme Court jurisprudence involving the Recess Appointments Clause might, under certain circumstances, constitutionally limit a President's ability to make recess appointments to the Court.