Supreme Court Appointment Process: Senate Debate and Confirmation Vote
Released: 2018-09-07T00:00:00

Introduction

The procedure for appointing a Justice to the Supreme Court of the United States is provided for by the 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." The process of appointing Justices has undergone changes over two centuries, but its most basic feature—the sharing of power between the President and Senate—has remained unchanged. To receive an appointment to the Court, a candidate must first be nominated by the President and then confirmed by the Senate. This report provides information and analyses related to the debate and consideration of Supreme Court nominations by the full Senate once nominations are reported by the Judiciary Committee.

Criteria Used by Senators to Evaluate Nominees

Once the full Senate begins debate on a Supreme Court nomination, many Senators typically will take part in the debate. Some, in their remarks, underscore the importance of the Senate's "advice and consent" role, and the consequent responsibility to carefully determine the qualifications of a nominee before voting to confirm. Typically, each Senator who takes the floor states his or her reasons for voting in favor of or against a nominee's confirmation.

The criteria used to evaluate a Supreme Court nominee are an individual matter for each Senator. In their floor remarks, some Senators may cite a nominee's professional qualifications or character as the key criterion, others may stress the importance of the nominee's judicial philosophy or views on constitutional issues, while still others may indicate that they are influenced in varying degrees by all of these criteria.

Professional Qualifications

Just as most Presidents want their Supreme Court nominees to have unquestionably outstanding legal qualifications, most Senators also look for a high degree of merit in nominees to the Court. Consequently, floor remarks by Senators often focus, in part, on the professional qualifications of a nominee—both in recognition of the demanding nature of the work that awaits an appointee to the Court, but also because of the public's expectations that a Supreme Court nominee be highly qualified.

With such expectations of excellence, floor remarks by Senators often highlight the various ways in which nominees have distinguished themselves in the law (as lower court judges, legal scholars, or attorneys in private practice), or in other types of professional positions (such as elective office). Given the importance of a nominee's professional qualifications in the selection and confirmation process, Senators have on occasion questioned—either directly or indirectly in their floor remarks—whether a nominee has the requisite professional qualifications or experience to be appointed to the Court.

Judicial Philosophy or Ideology

In recent decades, Senate debate on virtually every Supreme Court nomination has focused to some extent on the nominee's judicial philosophy, ideology, constitutional values, or known positions on specific legal controversies. Many highly controversial decisions of the Court in recent decades have been closely decided, by 5-4 votes, appearing to underscore a long-standing philosophical or ideological divide in the Court between its more so-called liberal and so-called conservative members. A new appointee to the Court, Senators recognize, could have a potentially decisive impact on the Court's currently perceived ideological "balance" and on whether past rulings of the Court will be upheld, modified, or overturned in the future. Announcements by the Court of 5-4 decisions, a journalist covering the Court in 2001 wrote, had "become routine, a familiar reminder of how much the next appointment to the court will matter."

Senators sometimes will indicate in their floor statements whether they believe the views of a particular nominee, although not in complete accord with their own views, nonetheless, fall within a broad range of acceptable legal thinking. Senators' concerns with a nominee's judicial philosophy or ideology may become heightened, and their positions more polarized relative to other Senators', if a nominee's philosophical orientation is seen as controversial, or if the President is perceived to have made the nomination with the specific intention of changing the Court's ideological balance.

During the George W. Bush presidency, a Senate Judiciary subcommittee examined the question of what role ideology should play in the selection and confirmation of federal judges. In his opening remarks, the chair of the subcommittee, Senator Charles E. Schumer (D-NY), stated that it was clear that "the ideology of particular nominees often plays a significant role in the confirmation process." The current era, he said, "certainly justifies Senate opposition to judicial nominees whose views fall outside the mainstream and who have been selected in an attempt to further tilt the courts in an ideological direction."

By contrast, Senator Orrin G. Hatch (R-UT), in testimony before the subcommittee, declared that there "are myriad reasons why political ideology has not been—and is not—an appropriate measure of judicial qualifications. Fundamentally," he continued, "the Senate's responsibility to provide advice and consent does not include an ideological litmus test because a nominee's personal opinions are largely irrelevant so long as the nominee can set those opinions aside and follow the law fairly and impartially as a judge."

More recently, Senators of both parties have based, at least in part, their opposition to particular Supreme Court nominations on the belief that a nominee's ideological disposition or views on specific issues fall outside the mainstream of legal thought or public opinion.

Views of Peers, Constituents, Interest Groups, and Others

Other factors also may figure importantly into a Senator's confirmation decisions. One, it has been suggested, is peer influence in the Senate (especially, perhaps, when the nomination is viewed as controversial). Particularly influential, for instance, might be Senate colleagues who are championing a nominee or spearheading the opposition, or who played prominent roles in the Judiciary Committee hearings stage. Another consideration for Senators will be the views of their constituents, especially if many voters back home are thought to feel strongly about a nomination. Other influences may be the views of a Senator's advisers, family, and friends, as well as the position taken on the nomination by advocacy groups that the Senator ordinarily trusts or looks to for perspective.

Diversity Considerations

Just as Presidents are assumed to do when considering prospective nominees for the Supreme Court, Senators may evaluate the suitability of a Supreme Court nominee according to whether certain groups, constituencies, or individuals with certain characteristics are adequately represented on the Court. Among the representational criteria commonly considered have been the nominee's party affiliation, geographic origin, ethnicity, religion, and gender.

Senate Institutional Factors or Prerogatives

When considering Supreme Court nominations, Senators may also take Senate institutional factors into account. For instance, the role, if any, that Senators from the home state of a nominee played in the nominee's selection, as well as their support for or opposition to the nominee, may be of interest to other Senators. At the same time, Senators may be interested in the extent to which the President, prior to selecting the nominee, sought advice from other quarters in the Senate—for instance, from Senate party leaders and from the chair, ranking minority Member, and other Senators on the Judiciary Committee. A President's prior consultation with a wide range of Senators concerning a nominee may be a positive factor for other Members of the Senate, by virtue of conveying presidential respect for the role of Senate advice, as well as Senate consent, in the judicial appointments process.

Sometimes, Senators may find themselves debating whether the Senate, in its "advice and consent" role, should defer to the President and give a nominee the "benefit of the doubt." This issue received particular attention during Senate consideration of the Supreme Court nomination of Clarence Thomas in 1991. In that debate, some Thomas supporters argued that the Senate, as a rule, should defer to the President's judgment concerning a nominee except when unfavorable information is presented overcoming the presumption in the nominee's favor. Opponents, by contrast, rejected the notion that there was a presumption in favor of a Supreme Court nominee at the start of the confirmation process or that the President, in his selection of a nominee, is owed any special deference.

Floor Procedures for Considering the Nomination

After the Judiciary Committee has reported a nomination, it is placed on the Executive Calendar and assigned a calendar number by the executive clerk of the Senate. As with other nominations listed in the Executive Calendar , information about a Supreme Court nomination includes the name and office of the nominee; the name of the previous holder of the office; whether the committee reported the nomination favorably, unfavorably, or without recommendation; and, if there is a printed report, the report number.

Business on the Executive Calendar , which consists of treaties and nominations, is considered in executive session. Unless voted otherwise by the Senate, executive sessions are open to the public. Floor debate on a Supreme Court nomination, in contemporary practice, invariably has been conducted in public session, open to the public and press and, since 1986, to live nationwide television coverage.

Bringing the Nomination to the Floor30

The Senate's executive business is composed of nominations and treaties. The Senate considers such business in executive session. Since the Senate typically begins its day in legislative session on any day it sits, the decision to proceed to executive session and consider a specific nomination is made while the Senate is in legislative session.

Consideration of a nomination is scheduled by the majority leader, who typically consults with the minority leader and all interested Senators. In previous Congresses, the typical practice in calling up a Supreme Court nomination was for the majority leader to consult with the minority leader and interested Senators and to ask for unanimous consent that the Senate proceed to executive session and consider the nomination. The leader asked for unanimous consent to proceed to executive session to consider the nomination immediately, or at some specified time in the future.

A unanimous consent request also could include a limit on the time that will be allowed for debate and specify the date and time on which the Senate will vote on a nomination. Typically, the amount of time agreed upon for debate is divided evenly between the majority and minority parties, who usually have as their respective floor managers the chair and ranking minority Member of the Judiciary Committee. If agreed to, a time limit on debate, with a date and time set for final Senate vote on the nomination, precludes unlimited debate or delay in considering a nomination and the possibility of a filibuster. Conversely, if the Senate agrees by unanimous consent to consider a nomination, but does not provide for a time limit on debate or specify when, or under what circumstances, a Senate vote will take place, extended debate is possible, although not necessarily inevitable.

When unanimous consent to call up a nomination has not been secured, the majority leader may make a motion that the Senate proceed to consider the nomination. As already explained, such a motion is made while the Senate is in legislative session. The motion is not debatable. Since 1980, the Senate has explicitly established the precedent that a nondebatable motion may be made to go into executive session to take up a specified nomination . One congressional scholar observed that the precedent limits a potential filibuster to the nomination itself.

Filibusters and Motions to End Debate40

Senate rules place no limits on how long floor consideration of a nomination may last. With time limits lacking, Senators opposing a Supreme Court nominee may seek, if they are so inclined, to use extended debate or delaying actions to postpone or prevent a final vote from occurring. The use of dilatory actions for such a purpose is known as a filibuster.

By the same token, however, supporters of a Court nomination have available to them a procedure for placing time limits on consideration of a matter—the motion to invoke cloture. When the Senate agrees to a cloture motion, further consideration of the matter being debated is limited to 30 hours. The majority required for cloture on nominations, including Supreme Court nominations, is a majority of Senators voting, a quorum being present. By invoking cloture, the Senate ensures that a nomination may ultimately come to a vote and be decided by a voting majority.

The Senate reinterpreted its cloture rule to allow a majority of Senators voting to invoke cloture on a Supreme Court nomination on April 6, 2017. Shortly thereafter the Senate was able to invoke cloture on the nomination of Neil M. Gorsuch to be a Supreme Court Justice by a vote of 55-45.

Prior to the 2017 precedent, a supermajority was required to invoke cloture on a Supreme Court nomination. Motions to bring debate on Supreme Court nominations to a close under the previous procedures were made on four prior occasions. The first use occurred in 1968, when Senate supporters of Justice Abe Fortas tried unsuccessfully to end debate on the motion to proceed to his nomination to be Chief Justice. After the motion was debated at length, the Senate failed to invoke cloture by a 45-43 vote, prompting President Lyndon Johnson to withdraw the nomination. The 45 votes in favor of cloture fell far short of the supermajority required—then two-thirds of Senators present and voting, a quorum being present.

A cloture motion to end debate on a Court nomination occurred again in 1971, when the Senate considered the nomination of William H. Rehnquist to be an Associate Justice. Although the cloture motion failed by a 52-42 vote, Rehnquist was confirmed later the same day. In 1986, a cloture motion was filed on a third Supreme Court nomination, this time of sitting Associate Justice Rehnquist to be Chief Justice. Supporters of the nomination mustered more than the three-fifths majority needed to end debate (with the Senate voting for cloture 68-31), and Justice Rehnquist subsequently was confirmed as Chief Justice.

A cloture motion was presented to end consideration of a Supreme Court nomination a fourth time, during Senate consideration of the nomination of Samuel A. Alito Jr. in January 2006. The motion was presented on January 26, after two days of Senate floor debate on the nomination. On January 30, the Senate voted to invoke cloture by a 72-25 vote, and the next day it confirmed the Alito nomination by a final vote of 58-42.

As one news analysis at the time observed, Senators "are traditionally hesitant to filibuster" Supreme Court nominations. Indicative of this, the article noted, was the fact that some of the "most divisive Supreme Court nominees in recent decades, including Associate Justice Clarence Thomas, have moved through the Senate without opponents resorting to that procedural weapon." In 1991, five days of debate on the Thomas nomination concluded with a 52-48 confirmation vote. The 48 opposition votes would have been more than enough to defeat a cloture motion if one had been filed. In three earlier episodes, Senate opponents of Supreme Court nominations appear to have refrained from use of the filibuster, even though their numbers would have been sufficient to defeat a cloture motion. In 1969, 1970, and 1987 respectively, lengthy debate occurred on the unsuccessful nominations of Clement F. Haynsworth, G. Harrold Carswell, and Robert H. Bork. In none of these episodes, however, was a cloture motion filed, and in each case debate ended with a Senate vote rejecting the nomination.

Final Vote on Whether to Confirm the Nomination

Number of Days from Nomination to Final Vote

Historically, there has been variation in the length of time from a President nominating a person for a vacancy on the Supreme Court to a final Senate vote on that person's nomination. For nominees since 1975 who have received a final floor vote, Figure 1 shows the number of calendar days that elapsed from the date on which the nomination was formally submitted to the Senate to the date on which the Senate voted whether to approve the nomination.

Of the 15 nominees listed in the figure, Robert Bork waited the greatest number of days (108) from nomination to a final Senate vote—followed by Clarence Thomas (99), while John Paul Stevens waited the fewest number of days (19)—followed by Sandra Day O'Connor (33).

Overall, the average number of days from nomination to final Senate vote is 69.6 days (or approximately 2.3 months), while the median is 69.0 days.

Of the eight Justices currently serving on the Court, the average number of days from nomination to final Senate vote is 72.0 days (or approximately 2.4 months), while the median is 69.5 days. Among the current Justices, Ruth Bader Ginsburg waited the fewest number of days from nomination to confirmation (42), while Clarence Thomas waited the greatest number of days (99).

Number of Days from Committee Report to Final Vote

There has also been variation in the length of time nominees to the Court have waited for a final vote after being reported by the Judiciary Committee. Figure 2 shows, for nominees since 1975 who received a final floor vote, the number of calendar days that elapsed from the date on which the nomination was reported by the Judiciary Committee to the date on which the Senate voted whether to approve the nomination.

Of the 15 nominees listed in the figure, William Rehnquist and Antonin Scalia waited the greatest number of days (34) from committee report to a final Senate vote, while Neil Gorsuch waited the fewest number of days (4). The nominations of Rehnquist (to be Chief Justice) and Scalia (to be Associate Justice) were reported by the committee the day before the start of the August recess in 1986, which likely lengthened the amount of time from committee report to final vote for both nominations.

Overall, the average number of days from committee report to final Senate vote is approximately 12 days, while the median is 7 days.

Of the eight Justices currently serving on the Court, the average number of days from committee report to final Senate vote is 9.5 days, while the median is 8.0 days. Among the current Justices, Neil Gorsuch waited the fewest number of days from committee report to confirmation (4), while Clarence Thomas waited the greatest number of days (18).

Type of Vote

When floor debate on a nomination comes to a close, the presiding officer puts the question of confirmation to a vote. In doing so, the presiding officer typically states, "The question is, Will the Senate advise and consent to the nomination of [nominee's name] of [state of residence] to be an Associate Justice [or Chief Justice] on the Supreme Court?"

A roll-call vote to confirm requires a simple majority of Senators present and voting, a quorum being present. Since 1967, every Senate vote on whether to confirm a Supreme Court nomination has been by roll call. Prior to 1967, by contrast, fewer than half of all of Senate votes on whether to confirm nominees to the Court were by roll call, with the rest by voice vote.

For roll-call votes on Supreme Court nominations, the formal procedure by which Senators cast their votes on the floor has varied over the years. In recent decades prior to 1991, it was the usual practice for Senators, during the calling of the roll, to be free to come and go, and not have to be present in the Senate chamber for the entire calling of the roll. However, for several recent Supreme Court nominations to receive final Senate votes on confirmation the majority leader or the presiding officer, immediately prior to the calling of the roll, has asked all of the Senate's Members to remain seated at their desks during the entire vote—with each Senator rising and responding when his or her name is called. Voting from the desk during roll calls is in keeping with a standing order of the Senate, which rarely, however, is actually enforced; nevertheless, the rule has been applied by Senate leaders, in recent years, to roll-call votes on Supreme Court nominations, to mark the special significance for the Senate of deciding whether to confirm an appointment to the nation's highest court.

Vote Outcome and Number of Nay Votes

Historically, vote margins on Supreme Court nominations have varied considerably. Most votes have been overwhelmingly in favor of confirmation. Some recorded votes, however, either confirming or rejecting a nomination, have been close.

For nominations receiving a final floor vote since 1975, Figure 3 shows whether the nomination was approved by the Senate (identified in columns with blue dots) or not approved. For nominations approved, the level of support among Senators voting on the nomination is indicated as follows: (1) unanimous support (i.e., no nay votes cast on the nomination); (2) some opposition (fewer than 10 nay votes cast on the nomination); (3) some opposition (more than 10 nay votes cast on the nomination, but at least half of the Senators not belonging to the President's party still voted aye on the nomination); and (4) party opposition (a majority of Senators not belonging to the President's party cast nay votes on the nomination). The number of dots at the top of each column indicates the number of nominees in each category.

Of the 15 nominations receiving a final floor vote, 14 were confirmed. Of the 14 nominations approved by the Senate, 6 were approved despite receiving nay votes from a majority of Senators not belonging to the President's party. These six include the four most recent nominations to the Court, those of Neil Gorsuch (2017), Elena Kagan (2010), Sonia Sotomayor (2009), and Samuel Alito (2006). Additionally, a majority of Senators not belonging to the President party's voted against the Clarence Thomas nomination (1991), as well as the nomination of William Rehnquist to be Chief Justice (1986).

In only one of the six cases identified above did the President's party not also hold a majority of seats in the Senate. Specifically, in 1991, President George H. W. Bush (a Republican) nominated Thomas—who was opposed by a majority of Democratic Senators (and whose party was also the majority party in the Senate). In each of the other five cases, the majority of Senators opposed to the nomination belonged to the minority party in the Senate (i.e., Democrats were the minority party in 1986, 2006, and 2017, while Republicans were the minority party in 2009 and 2010).

Of the 15 nominations presented in Figure 3 , 7 were approved by the Senate either unanimously or with fewer than 10 nay votes—but the last nomination to fall into either one of these categories was that of Stephen Breyer (nominated by President Clinton in 1994).

Figure 4 provides some historical context for the number of nay votes received by the five most recent nominations to the Court (Gorsuch, Kagan, Sotomayor, Alito, and Roberts). Specifically, the figure identifies, of the 34 nominations since 1945 that received a final floor vote, the 10 nominations that received the greatest number of nay votes.

Of the 10 nominations listed in the figure, 7 were confirmed by the Senate and 3 were rejected (the Bork, Haynsworth, and Carswell nominations).

Of the seven nominations that were approved, five were for individuals currently serving on the Court—including the four most recent nominees (Gorsuch, Kagan, Sotomayor, and Alito). The relatively high number of nay votes received by recent nominations approved by the Senate for the Supreme Court is atypical historically (see further discussion below). The relatively high number of nay votes received by recent nominations reflects greater opposition than in the past by Senators not belonging to a President's party to nominations to the Court.

Percentage of Nays

The level of opposition to Supreme Court nominations approved by the Senate, as measured by the percentage of Senators voting against a nomination, has been relatively greater in recent years than in the past. Since 1789 there have been 50 nominations that received an up-or-down roll call vote on the Senate floor that also resulted in the nomination being approved by the Senate Of these 50 nominations, Figure 5 identifies the 10 for which the greatest percentage of Senators voted to oppose it.

Of the 10 individuals listed in the figure, 4 are currently serving on the Court. The nominations of Justices Thomas, Gorsuch, Alito, and Kagan were opposed by 48.0%, 45.5%, 42.0%, and 37.0% of Senators, respectively. Additionally, the nominations of two other current Justices, Sonia Sotomayor and John Roberts Jr., rank among the 20 nominations (of 50) that received the most opposition (at 31.3% and 22.0%, respectively).

For the 50 nominations, the median percentage of Senators voting "nay" on a nomination was 16.6% (with 6 of the nominations that were approved by roll call not receiving any nay votes).

Reconsideration of the Confirmation Vote

After a Senate vote to confirm a Supreme Court nomination, a Senator who voted on the prevailing side may, under Senate Rule XXXI, move to reconsider the vote. Under the rule, only one such motion to reconsider is in order on each nomination, and the tabling of the motion prevents any subsequent attempt to reconsider. The Senate typically deals with a motion to reconsider a Supreme Court confirmation in one of two ways. Immediately following the vote to confirm, a Senator may move to reconsider the vote, and the motion is promptly laid upon the table by unanimous consent. Alternatively, well before the vote to confirm, in a unanimous consent agreement, the Senate may provide that, in the event of confirmation, the motion to reconsider be tabled. The Senate, it should be noted, has never adopted a motion to reconsider a Supreme Court confirmation vote.

Calling Upon the Judiciary Committee to Further Examine the Nomination

Sometimes, after a Supreme Court nomination has been reported, the Senate may delay considering or voting on the nomination, in order to have the Senate Judiciary Committee address new issues concerning the nominee or more fully examine issues that it addressed earlier. Opponents of a nomination may also seek such delay, through recommittal of the nomination to the committee, to defeat the nomination indirectly, by burying it in committee.

Recommittals of Supreme Court Nominations

Although the Senate has never adopted a motion to reconsider a Supreme Court nomination after a confirmation vote, there have been at least eight pre-confirmation vote attempts to recommit Supreme Court nominations to the Judiciary Committee. Only two of those were successful. In the first of these two instances, in 1873-1874, the nomination, after being recommitted, stalled in committee until it was withdrawn by the President. In the second instance, in 1925, the Judiciary Committee re-reported the nomination, which the Senate then confirmed.

On December 15, 1873, on the second day of its consideration of the nomination of Attorney General George H. Williams to be Chief Justice, the Senate ordered the nomination to be recommitted to the Judiciary Committee. The nomination had been favorably reported by the committee only four days earlier. During that four-day interval, however, various allegations were made against Williams, including charges that while Attorney General he had used his office to influence decisions profiting private companies in which he held interests. In ordering the nomination to be recommitted, the Senate authorized the Judiciary Committee "to send for persons and papers" —in evident reference to the new allegations made against the nominee. Although the Judiciary Committee held hearings after the recommittal, it did not re-report the nomination back to the Senate. Amid press reports of significant opposition to the nomination both in the Judiciary Committee and the Senate as a whole, the nomination, at Williams's request, was withdrawn by President Ulysses S. Grant on January 8, 1874.

On January 26, 1925, the Senate recommitted the Supreme Court nomination of Attorney General Harlan F. Stone to the Judiciary Committee. Earlier, on January 21, the Judiciary Committee had favorably reported the nomination to the Senate. However, one historian wrote, "Stone's unanimous Judiciary Committee approval ran into trouble when it reached the Senate floor." A principal point of concern to some Senators was the decision made by Stone as Attorney General in December 1924 to expand a federal criminal investigation of Senator Burton K. Wheeler (D-MT)—an investigation initiated by Stone's predecessor as Attorney General, Harry Daugherty. Stone's most prominent critic on this point, Montana's other Democratic Senator, Thomas J. Walsh, demanded that the nomination be returned to the Judiciary Committee. By unanimous consent the Senate agreed, ordering the nomination to be "rereferred to the Committee on the Judiciary with a request that it be reported back to the Senate as soon as practicable." Two days after the recommittal, on January 28, the Judiciary Committee held hearings, with the nominee, at the committee's invitation, taking the then-unprecedented step of appearing before the committee. Under lengthy cross examination by Senator Walsh and several other Senators, the nominee defended his role in the Wheeler investigation. On February 2, 1925, the Judiciary Committee again reported the Stone nomination favorably to the Senate, "by voice vote, without dissent," and on February 5, 1925, the Senate confirmed Stone by a 71-6 vote.

Delay for Additional Committee Hearings Without Recommitting the Nomination

In 1991, during debate on Supreme Court nominee Clarence Thomas, the Senate—without recommitting the nomination to the Judiciary Committee—delayed its scheduled vote on the nomination specifically to allow the committee time for additional hearings on the nominee. On October 8, 1991, after four days of debate, the Senate, by unanimous consent, rescheduled its vote on the Thomas nomination, from October 8 to October 15. The purpose of this delay was to allow the Judiciary Committee to hold hearings on sexual harassment allegations made against the nominee by law professor Anita Hill, which had come to public light only after the Judiciary Committee had ordered the Thomas nomination to be reported, without recommendation, on September 27. Following three days of hearings, on October 11, 12, and 13, 1991, at which the Judiciary Committee heard testimony from Judge Thomas, Professor Hill, and other witnesses, the Senate, pursuant to its unanimous consent agreement, voted on the Thomas nomination as scheduled, on October 15, 1991, confirming the nominee by a 52-48 vote.

After Senate Confirmation

Under the Constitution, the Senate alone votes on whether to confirm presidential nominations, the House of Representatives having no formal involvement in the confirmation process. If the Senate votes to confirm the nomination, the Secretary of the Senate then attests to a resolution of confirmation and transmits it to the White House. In turn, the President signs a document, called a commission, officially appointing the individual to the Court. Next, the signed commission "is returned to the Justice Department for engraving the date of appointment (determined by the actual day the president signs the commission) and for the signature of the attorney general and the placing of the Justice Department seal." The department then arranges for expedited delivery of the commission document to the new appointee.

Once the President has signed the commission, the incoming Justice may be sworn into office. In fact, however, the new Justice actually takes two oaths of office—a judicial oath, as required by the Judiciary Act of 1789, and a constitutional oath, which, as required by Article VI of the Constitution, is administered to Members of Congress and all executive and judicial officers.

Until recently, the most common practice of new appointees had been to take their judicial oath in private, usually within the Court, and, as desired by the Presidents who nominated them, to take their constitutional oaths in nationally televised ceremonies at the White House. In 2009, however, in a departure from that practice, Supreme Court nominee Sonia Sotomayor, after Senate confirmation, took both her constitutional and judicial oaths of office at the Supreme Court—with the constitutional oath administered in a private ceremony, and the judicial oath broadcast on television ("marking the first live coverage of such a ceremony in the institution's history"). This break from the practice of administering one of the oaths at the White House was attributed, in one report, to President Obama "heeding concerns expressed by some justices—most recently John Paul Stevens—that a White House ceremony sends the inappropriate message that justices are beholden to their appointing president." Following Sonia Sotomayor's example, President Obama's second Supreme Court nominee, Elena Kagan, took both her constitutional and judicial oaths of office at the Supreme Court as well. More recently, in contrast, Neil Gorsuch took the judicial oath of office at a public ceremony at the White House and the constitutional oath of office in a private ceremony in the Justices' conference room at the Supreme Court building.

Subsequently, the Court itself, in its courtroom, also affords public recognition to the new Justice's appointment, in a formal ceremony called an "investiture," at which the Justice is sworn in yet again. This invitation-only event, for which reserved press seating is made available, is attended by the Court's other Justices, by family, friends, and former associates of the new Justice, and by outside dignitaries who may include the President and the Attorney General. The investiture typically occurs before the new Justice publicly takes his or her courtroom seat alongside the other members of the Court.