Supreme Court Appointment Process: Consideration by the Senate Judiciary Committee
Released: 2018-08-14T00:00:00

Background

While the U.S. Constitution assigns explicit roles in the Supreme Court appointment process only to the President and the Senate, the Senate Judiciary Committee, throughout much of the nation's history, has also played an important, intermediary role. From 1816, when the Judiciary Committee was created, until 1868, more than two-thirds of nominations to the Supreme Court were referred to the committee, in each case by motion. In 1868, the Senate determined, as a general rule, that all nominations should automatically be referred to appropriate standing committees. Since then, all but seven Supreme Court nominations, with the most recent being in 1941, have been referred to the Judiciary Committee.

Since the late 1960s, the Judiciary Committee's consideration of a Supreme Court nominee almost always has consisted of three distinct stages—(1) a pre-hearing investigative stage, followed by (2) public hearings, and concluding with (3) a committee decision on what recommendation to make to the full Senate.

Pre-Hearing Stage

Committee Questionnaire

Upon the President's announcement of a nominee, the Judiciary Committee typically initiates an intensive investigation into the nominee's background. One primary source of information is a committee questionnaire to which the nominee responds in writing. The questionnaire asks the nominee for detailed biographical and financial disclosure information, with responses to some questions requiring the retrieval, listing, and summarizing of voluminous information about the nominee's past experiences or activities. The questionnaire also asks the nominee about the selection process that he or she experienced prior to being nominated by a President, including the circumstances which led to the nominee's nomination and any interviews with administration officials and others that he or she had prior to being selected. Because of the labor-intensive nature of the task, an Administration typically will aid the nominee in preparing and transmitting the questionnaire to the Judiciary Committee.

A chief purpose of the questionnaire is to provide members of the Judiciary Committee and their staffs with detailed pre-hearing information about the nominee. After delivery of the completed questionnaire to the committee, however, some Members may formally request in writing that the nominee provide additional information to clarify or expand on what he or she has already submitted. The nominee may then provide the committee with written responses to specific questions from the Senators, which in turn are made available as supplements to the questionnaire to all committee members prior to the start of the nominee's confirmation hearings.

Committee Background Investigation

The Judiciary Committee's confidential background investigation of a Supreme Court nominee closely reviews, among other things, the nominee's past professional activities. In this review, committee members and staff examine the mission of entities that employed or otherwise retained the services of the nominee and the nature and quality of the work product of the nominee while in that service. To this end, the committee might seek and attain access to the nominee's confidential written work product or to other documents that the past employer might consider of an internal nature and ordinarily not suitable for public release.

If the nominee's background includes prior service in the federal executive branch, the Judiciary Committee as a whole, or some of its members, can be expected to seek access to records of the nominee's written work product from that service. Sometimes, however, a President might resist such requests, citing the need to protect the confidentiality of advice provided, or decisions made, by the nominee while having served within an Administration—and typically invoking an "executive privilege" or attorney-client privilege to support his refusal to make such information available to the Judiciary Committee. In such an event, committee members or their staff might then devote a significant amount of time, prior to confirmation hearings, to identifying and justifying disclosure of specific kinds of documents that would aid the committee in making a more informed evaluation of the nominee—as well as to examining whatever documents are eventually released. In some cases, the committee may be in a position to exert leverage over an Administration, particularly when a majority of the committee's members are insistent that at least some executive branch documents be released before the committee will act on the nomination. This, a CRS report notes, was the case in 1986, when the Judiciary Committee prepared to consider the nomination of William H. Rehnquist to be Chief Justice.

During the confirmation proceeding for the elevation of Justice Rehnquist to be Chief Justice, the Judiciary Committee sought documents that he had authored on controversial subjects when he headed DOJ's Office of Legal Counsel. President Reagan asserted executive privilege, claiming the need to protect the candor and confidentiality of the legal advice submitted to Presidents and their assistants. But with opponents of Rehnquist [in the Judiciary Committee] gearing up to issue a subpoena, the nomination of not only Rehnquist but that of Antonin Scalia to be an Associate Justice, whose nominations were to be voted on in tandem, were in jeopardy. President Reagan agreed to allow the Committee access to a smaller number of documents, and Rehnquist and Scalia were ultimately confirmed.

In addition to the committee's own investigation of the nominee, confidential FBI reports on the nominee are another important information source. These are available only to committee members and a small number of designated staff under strict security procedures designed to prevent unauthorized disclosure.

Courtesy Calls

During the pre-hearing stage, the nominee, in accordance with long-standing tradition, visits Capitol Hill to pay "courtesy calls" on individual Senators in their offices. For Senators not on the Judiciary Committee, that may be the only opportunity to converse in person with the nominee before voting on his or her confirmation to the Court. Senators may use these meetings to gain firsthand impressions of the nominee and to discuss with the nominee issues that are important to them in the context of the nomination.

Evaluation by the American Bar Association

Also during the pre-hearing stage, the nominee is evaluated by the American Bar Association's Standing Committee on the Federal Judiciary, which is publicly committed to providing the Senate Judiciary Committee with an impartial evaluation of the qualifications of each Supreme Court nominee. A publication of the ABA committee stresses that each 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." Performance of this evaluation role, the committee states, is intended to help "ensure that the most qualified persons serve on the federal judiciary." At the culmination of its evaluation, the ABA committee votes on whether to rate a nominee "well qualified," "qualified," or "not qualified."

The rating of the ABA committee is then reported to each member of the Senate Judiciary Committee, as well as to the White House, the Department of Justice, and the nominee. Invariably, a nominee's ABA rating receives prominent news coverage when it is sent to the Senate Judiciary Committee. In the past, a unanimously positive rating by the ABA committee has almost always presaged a favorable report by the Judiciary Committee on the nominee as well. Conversely, a divided vote, or less than the highest rating, by the ABA committee usually served to flag issues about the nominee for the Senate Judiciary Committee to examine at its confirmation hearings, and these issues in turn have sometimes been cited by Senators on the Judiciary Committee who voted against reporting a nomination favorably to the Senate floor.

For the most part, from its inception in the late 1940s, and continuing through the next three decades, the ABA committee evaluated Supreme Court nominees, as well as nominees to lower court judgeships, with bipartisan support in the Senate. In the 1980s and 1990s, however, the committee came under criticism from some Senators who questioned its impartiality and the usefulness of its evaluations to the Judiciary Committee. Notwithstanding those criticisms, and variations in the recognition afforded it by chairs of the Judiciary Committee, the ABA committee has continued, in recent Congresses, to appear on a regular basis before the Judiciary Committee under both Republican and Democratic chairs. In keeping with long-standing practice, the ABA committee chair was the first public witness to testify at Supreme Court confirmation hearings in 2005, 2006, and 2009—to explain the ABA committee's rating of nominees John G. Roberts Jr., Samuel A. Alito Jr., and Sonia Sotomayor, respectively. At the Alito hearings, the then-chair of the Judiciary Committee, Senator Arlen Specter (R-PA), observed that, in receiving the testimony of outside witnesses at Supreme Court confirmation hearings, "our tradition is to hear first from the American Bar Association and their evaluation of the judicial nominee." Most recently, in 2010, in a minor break from this tradition, the ABA committee chair was not the first public witness to testify at the confirmation hearings for Supreme Court nominee Elena Kagan, but testified in a third panel of public witnesses (testifying first among those panelists).

Public Debate

Meanwhile, it is common, well before the start of confirmation hearings, for public debate to begin on a nominee's qualifications and on the meaning of the nomination for the future of the Court. Much of this debate is waged by commentators in the news media and increasingly, in recent years, on internet sites and by advocacy groups that actively support or oppose a nominee. Senators, too, sometimes contribute to this debate in Senate floor statements or other public remarks. Moreover, if a nominee is not quickly selected, groups who see their interests to be at stake by a new Court appointment can be expected to begin mobilizing members, or seeking to affect public or Senate opinion, before the President even selects a nominee. Their purpose in doing so might be to influence the President's choice or to galvanize the groups' members and political allies in anticipation of whomever the President ultimately chooses to nominate.

If the President's choice of a nominee proves to be divisive, the pre-hearing phase will be of strategic concern to both those groups which support the nominee's nomination, as well as to those groups which oppose it. During this phase, a political analyst has noted, "both sides will move quickly to try to define the nominee." The analysis, published in July 2005, only days after Justice Sandra Day O'Connor announced her intention to retire, considered what might happen if President George W. Bush's choice to succeed Justice O'Connor immediately polarized the Senate along party lines. In that event, it predicted the following scenario prior to the nominee's confirmation hearings:

First impressions are lasting impressions. If Republicans can create a positive image of a Bush Supreme Court nominee in the public's mind right out of the gate, that could help the nominee withstand later efforts by critics to portray him or her as an extremist. Conversely, if Democrats can quickly paint the president's choice as ideologically driven and far out of the mainstream, that could be a deathblow.

However, even if a nominee is not a "consensus" choice attracting immediate support across the political spectrum, the pre-hearing stage will not necessarily be marked by sharp polarization in the Senate (or by the immediate emergence of Senate opposition). Such partisan division, for instance, was absent when President G.W. Bush, on July 19, 2005, announced his selection of U.S. appellate court judge John G. Roberts Jr. to succeed Justice O'Connor. While "[l]iberal advocacy groups immediately assailed Roberts for his positions on abortion and other issues," and "Republican senators quickly rallied behind Roberts," Senate Democrats withheld immediate criticism of the nominee—reportedly out of concern about falling into what the Senate Democratic leader, according to aides, "considered a Republican trap of condemning a nominee before hearings."

Similarly, after President Obama selected Sonia Sotomayor, Republican Senators spoke "in cautious but measured tones about Sotomayor's qualifications and fitness for the court while Democrats" joined "the White House in singing her praises." Another news account noted that "Senate Republicans responded with restraint to the announcement [of Sotomayor's nomination], and their largely muted statements stood in sharp contrast to the fractious partisanship that has defined court battles in recent decades."

Preparation for Hearings

As confirmation hearings approach, Judiciary Committee members and staff closely study the public record and investigative information compiled on the nominee, and with the benefit of such research, they prepare questions to pose at the hearings. Sometimes committee members indicate in advance, either publicly or by communicating directly with the nominee, the kind of questions they intend to ask at the hearings.

For his or her part, the nominee also intensively prepares for the hearings, focusing particularly on questions of law and policy likely to be raised by committee members. The Administration assists the nominee in this effort by providing legal background materials and by conducting mock hearing practice sessions for the nominee. At these sessions—also called "murder boards," because of "their grueling demands on a judicial nominee" —the nominee is questioned on the full range of legal and constitutional issues that Senators on the Judiciary Committee can be expected to raise at the nominee's confirmation hearings.

Hearings

Supreme Court nominations since 1949 have routinely received public confirmation hearings before either the Senate Judiciary Committee or a Judiciary subcommittee. In 1955, hearings on the Supreme Court nomination of John M. Harlan marked the beginning of a practice, continuing to the present, of Court nominees testifying in-person before the Senate Judiciary Committee. Additionally, in 1981, Supreme Court confirmation hearings were opened to gavel-to-gavel television coverage for the first time when the committee instituted the practice at the confirmation hearings for nominee Sandra Day O'Connor.

A confirmation hearing typically begins with a statement by the chair of the Judiciary Committee welcoming the nominee and outlining how the hearing will proceed. Other members of the committee follow with opening statements, and a panel of "presenters" introduces the nominee to the committee. It is then the nominee's turn to make an opening statement, after which begins the principal business of the hearing—the questioning of the nominee by Senators serving on the Judiciary Committee. Typically, the chair begins the questioning, followed by the ranking minority Member and then the rest of the committee in descending order of seniority, alternating between majority and minority members, with a uniform time limit for each Senator during each round. When the first round of questioning has been completed, the committee begins a second round, which may be followed by more rounds, at the discretion of the committee chair.

Nominations That Did Not Receive a Committee Hearing

Overall, from the nomination of Tom Clark in 1949 through the nomination of Neil Gorsuch in 2017, 34 of 38 Supreme Court nominations (89%) received hearings. Four nominations did not receive hearings—the nomination of John Harlan in 1954 (renominated and confirmed in 1955); John Roberts Jr. in 2005 (renominated to be Chief Justice and confirmed in 2005); Harriet Miers in 2005; and Merrick Garland in 2016.

The most recent nomination not to receive a hearing, the nomination of Merrick Garland by President Obama, is the second nomination to the Court since 1949 for which no hearings were scheduled (hearings had been scheduled for the Roberts and Miers nominations prior to both nominations being withdrawn by the President).

The Garland nomination is, however, distinct from the nomination of Mr. Harlan in 1954 in that Mr. Harlan's nomination was resubmitted in 1955, hearings were held on that nomination, and Mr. Harlan was subsequently confirmed by the Senate.

Number of Days from Nomination to First Committee Hearing

For nominees since 1975 who have received hearings, Figure 1 shows the number of days that elapsed from the date on which the nomination was formally submitted to the Senate to the date on which the nominee had his or her first hearing before the Judiciary Committee.

Of the 14 nominees listed in the figure, Robert Bork waited the greatest number of days (70) from nomination to his first committee hearing, while John G. Roberts Jr. waited the fewest number of days (6)—followed closely by John Paul Stevens (7). The Bork nomination, controversial at the time, was ultimately rejected by the Senate, while the Roberts nomination to be Chief Justice was to fill an immediate vacancy on the Court after Chief Justice Rehnquist's death in 2005.

Note that Judge Roberts was initially nominated to fill the vacancy that would be created by the retirement of Justice Sandra Day O'Connor. While his nomination was pending for that anticipated vacancy, Chief Justice Rehnquist died on September 3, 2005. Following Chief Justice Rehnquist's death, Judge Roberts's nomination for the anticipated O'Connor vacancy was withdrawn and he was instead nominated to fill the immediate vacancy created by Chief Justice Rehnquist's death.

At the time he was nominated for the Chief Justice position, Judge Roberts's nomination to replace Justice O'Connor had been pending for 39 days. Judge Roberts's nomination to the Chief Justice position only delayed his already-scheduled confirmation hearings to replace Justice O'Connor by several days. Altogether, considering both of his nominations, Judge Roberts waited a total of 45 days from the initial nomination to replace Justice O'Connor to the first committee hearing date to replace Chief Justice Rehnquist. As shown by Figure 1 , this 45-day interval is similar to the wait time experienced by other recent nominees.

For the 15 nominees listed in Figure 1 , the average number of days from nomination to first committee hearing is approximately 40 days, while the median is 42 days. If 45 days (rather than 6 days) is used as the time interval that Mr. Roberts waited from nomination to his first committee hearing, the average number of days from nomination to first committee hearing is 42 days, while the median is 45 days.

For the eight Justices who, as of August 1, 2018, are serving on the Court, the average number of days from nomination to first committee hearing is 44 days, while the median is 48 days. If 45 days (rather than 6 days) is used as the time interval that Judge Roberts waited from nomination to his first committee hearing, the average number of days from nomination to first committee hearing is approximately 49 days, while the median is 48 days.

The Kavanaugh Nomination

Confirmation hearings for the current nominee to the Court, Judge Brett Kavanaugh, are scheduled to begin on September 4, 2018. If hearings begin on this date, 56 days will have elapsed from Judge Kavanaugh's nomination to first committee hearing.

Purposes of Questioning the Nominee

For members of the Judiciary Committee, questioning of the nominee may serve various purposes. As already noted, for Senators who are undecided about the nominee the hearings may shed light on the nominee's fitness, and hence on how they should vote. Other Senators, as the hearings begin, may already be "reasonably certain about voting to confirm the nominee," yet "also remain reasonably open to counter-evidence," and thus use the hearings "to pursue a line of questioning designed to probe the validity of this initial favorable predisposition." Still others, however, may come to the hearings "having already decided how they will vote on the nomination" and, accordingly, use their questioning of the nominee to try "to secure or defeat the nomination."

A Senator may even be initially undecided about whether he or she supports a nominee of a President belonging to the same party as the Senator. One reason for this is that a Senator might question whether a nominee is sufficiently committed to a particular judicial philosophy or ideological perspective—and, consequently, might view the committee hearings as important in determining whether a nominee might be supportive of the Senator's preferred judicial philosophy or ideological disposition.

For some Senators, the hearings may be a vehicle through which to impress certain values or concerns upon a nominee in the hope of influencing how he or she might approach issues later as a Justice. The hearings, to some Senators, also may represent an opportunity to draw the public's attention to certain issues, to advocate their policy preferences, or to associate themselves with concern about certain problems. Senators, it has also been noted, "may play multiple roles in any given hearing."

Types of Questions Posed to Nominee

In recent decades, most nominees have undergone rigorous questioning in varying subject areas. They have been queried, as a matter of course, about their legal qualifications, private backgrounds, and earlier actions as public figures. Other questions have focused on social and political issues, the Constitution, particular Court rulings, current constitutional controversies, constitutional values, judicial philosophy, and the analytical approach a nominee might use in deciding issues and cases.

Still other questions may concern past public statements made by the nominee, or (if the nominee has prior judicial experience) particular rulings handed down by the nominee. To many Senators, eliciting testimony from the nominee may be seen as an important way to gain insight into his or her professional qualifications, temperament, and character. Some Senators, as well, may hope to glean from the nominee's responses signs of how the nominee, if confirmed to the Court, might be expected to rule on issues of particular concern to the Senators.

For his or her part, however, a nominee might sometimes be reluctant to answer certain questions that are posed at confirmation hearings. A nominee might decline to answer for fear of appearing to make commitments on issues that later could come before the Court. A nominee also might be concerned that the substance of candid responses to certain questions could displease some Senators and thus put the nominee's chances for confirmation in jeopardy.

For their part, committee members may differ in their assessments of a nominee's stated reasons for refusing to answer certain questions. Some may be sympathetic and consider a nominee's refusal to discuss certain matters of no relevance to his or her fitness for appointment, or as illustrative of a commendable inclination not to be "pinned down" on current legal controversies. Others, however, may consider a nominee's views on certain subjects as important to assessing the nominee's fitness and hence regard unresponsiveness to questions on these subjects as sufficient reason to vote against confirmation. Protracted questioning, occurring over several days of hearings, is likely if a nominee is relatively controversial or is perceived by committee members to be evasive or insincere in responding to certain questions, or if Senators perceive certain issues to merit extended discussion.

Public Witnesses

After questioning of the nominee has been completed, the committee, in subsequent days of hearings, also hears testimony from public witnesses. As stated earlier, among the first to testify in recent decades has been the chair of the ABA's Standing Committee on the Federal Judiciary, who explains the committee's rating of a nominee. Other witnesses ordinarily include professional colleagues of a nominee or representatives of advocacy groups which support or oppose a nominee.

Closed-Door Committee Session

In a practice instituted in 1992, the Judiciary Committee also conducts a closed-door session with each Court nominee. This session is held to address any questions about the nominee's background that confidential investigations might have brought to the committee's attention. In announcing this procedure in 1992, the then-chair of the committee, Senator Joseph R. Biden Jr. (D-DE), explained that such a hearing would be conducted "in all cases, even when there are no major investigative issues to be resolved so that the holding of such a hearing cannot be taken to demonstrate that the committee has received adverse confidential information about the nomination."

The first such closed-door session was held for Supreme Court nominee Ruth Bader Ginsburg in 1993. Most recently, such sessions were held in 2005, 2006, 2009, 2010, and 2017 for nominees John G. Roberts Jr., Samuel A. Alito Jr., Sonia Sotomayor, Elena Kagan, and Neil Gorsuch, respectively. At the Roberts, Alito, and Kagan confirmation hearings, a brief executive session was held after the Judiciary Committee had concluded all of its rounds of questions for the nominees but before it received outside witness testimony. At the Sotomayor confirmation hearings, an executive session was held between the Judiciary Committee's first and second rounds of questions for the nominee.

Reporting the Nomination

Reporting Favorably, Negatively, or Without Recommendation

Usually within a week of the end of hearings, the Judiciary Committee meets in open session to determine what recommendation to report to the full Senate. The committee may (1) report the nomination favorably, (2) report it negatively, or (3) make no recommendation at all on the nomination. A report with a negative recommendation or no recommendation permits a nomination to go forward, while alerting the Senate that a substantial number of committee members have reservations about the nomination.

Figure 2 shows, for the 15 nominations reported by the Judiciary Committee since 1971, whether the nomination was reported favorably (identified in columns with blue dots) or other than favorably (identified in column with orange dots).

For nominations reported favorably, the level of support among committee members is indicated as follows: (1) unanimous support (i.e., no opposition by committee members); (2) almost unanimous support (opposition by one committee member); (3) some opposition (opposition by two or more committee members, but with the nomination also receiving the support of at least two members not belonging to the President's party); (4) almost party-line opposition (opposition by all but one committee member not belonging to the President's party); and (5) party-line opposition (opposition by all committee members not belonging to the President's party). The number of colored circles at the top of each column indicates the number of nominees in each particular category.

Of the 13 nominations reported favorably, 6 were reported with unanimous support (while another 1 was reported with nearly unanimous support). The most recent nomination to be reported with unanimous support by the committee was that of Stephen Breyer in 1994.

None of the five most recent nominations to the Court were reported unanimously or almost unanimously. The Roberts nomination was reported with some opposition (three committee members not belonging to the President's party supported the nomination), while the Sotomayor and Kagan nominations were reported with almost party-line opposition (one committee member not belonging to the President's party supported the nominations). The nominations of Samuel Alito and Neil Gorsuch were reported with complete party-line opposition (only committee members belonging to the President's party voted to report the nomination favorably).

Two nominations included in Figure 2 were not reported favorably, those of Robert Bork (reported unfavorably after the committee defeated a motion, 5-9, to report the nomination favorably) and Clarence Thomas (reported without recommendation after the committee defeated a motion, 7-7, to report the nomination favorably).

If a majority of its members oppose confirmation, the committee technically may decide not to report a nomination, which would prevent the full Senate from considering it. However, since its creation in 1816, the Judiciary Committee's typical practice has been to report even those Supreme Court nominations that were opposed by a committee majority, thus allowing the full Senate to make the final decision on whether the nominee should be confirmed.

This committee tradition was reaffirmed in June 2001 by the committee's then-chair, Senator Patrick J. Leahy (D-VT), and its then-ranking Member, Senator Orrin G. Hatch (R-UT), in a June 29, 2001, letter to Senate colleagues. The committee's "traditional practice," their letter stated,

has been to report Supreme Court nominees to the Senate once the Committee has completed its considerations. This has been true even in cases where Supreme Court nominees were opposed by a majority of the Judiciary Committee.

We both recognize and have every intention of following the practices and precedents of the committee and the Senate when considering Supreme Court nominees.

During the 20 th century, the Senate usually, but not always, agreed with Judiciary Committee recommendations that a Supreme Court nominee be confirmed. In other words, a favorable recommendation by the committee has, in a few instances (each occurring during the period 1968 to 1970), not been followed by Senate confirmation of the nomination.

Historically, unfavorable committee reports, or reports without recommendation, have been precursors to nominations encountering substantial opposition in the full Senate, although a few of these nominations have eventually been confirmed by narrow margins.

Printed Committee Reports

In recent decades, reporting to the Senate frequently has included a printed committee report, although the five most recently reported Supreme Court nominations were done so without printed reports. Prepared behind closed doors, after the committee has voted on the nominee, the printed report presents in a single volume the views of committee members supporting a nominee's confirmation as well as "all supplemental, minority, or additional views ... submitted by the time of the filing of the report.... " No Senate committee, however, is obliged to transmit a printed report to the Senate. Instead, the chair of the Judiciary Committee may file a one-page document reporting a nomination to the Senate and recommending whether the nomination should be confirmed.

A printed report may be valuable in providing for Senators not on the Judiciary Committee a review of all of the reasons that the committee's members cite for voting in favor or against a nominee. A written report, however, might not always be considered a necessary reference for the Senate as a whole. For instance, in some cases, Senators not on the Judiciary Committee might believe they have received adequate information about a nominee from other sources, such as from news media reports or gavel-to-gavel video coverage of the nominee's confirmation hearings. Further, preparation of a written report would likely mean additional days for a nomination to stay with the committee before it can be reported to the Senate. In some situations, this might be viewed as creating unnecessary delay in the confirmation process, particularly if there is a desire to fill a Court vacancy as quickly as possible.