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Supreme Court Confirmation Frequently Asked Questions

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1. Who can be a Supreme Court Justice? What are the qualifications?
2. Has someone who is a not a lawyer ever served on the Supreme Court bench?
3. What is the term length for Supreme Court Justices?
4. How much does a Supreme Court Justice earn?
5. What is the difference between the Chief Justice and the Associate Justices?
6. How is the Chief Justice selected?
7. What is the President's role in selecting a Supreme Court Justice?
8. What is the Senate’s role in the confirmation process?
9. How long does it take for a nominee to be confirmed?
10. What is the role of outside groups?
11. Are Supreme Court nominees ever rejected by the Senate?
12. What is a filibuster?
13. Has a filibuster ever blocked a nominee to the Supreme Court?
14. What is the "nuclear option"? 
15. What is the “Gang of Fourteen,” what did they agree to and how might this effect Judge Roberts' confirmation hearing?
16. What will happen if no new Justice is confirmed by the beginning of teh Supreme Court's term in October? 
17. What will happen if cases are heard with Justice O'Connor sitting but not decided when she steps down?
18. What can Senators ask during the confirmation hearings?  And what can nominees answer? 
19. Can the court function with fewer than nine Justices? How many Justices are needed to hear cases and rule on them?
20. What is the longest time an individual Justice has served on the Court?
21. What is the longest the Court has gone while missing at least one Justice?
22. What are the powers of the Chief Justice?
23. What happens if neither Judge Roberts nor President Bush’s nominee to fill Justice O’Connor’s vacancy is confirmed by the Senate when the new Supreme Court convenes on October 3?
24. When was the last time the Supreme Court had only 7 justices?

Who can be a Supreme Court Justice? What are the qualifications?

In theory, anyone can become a Supreme Court Justice. In practice, however, the distinction has been reserved for lawyers and, like Judge John G. Roberts, the majority of Supreme Court nominees have been judges on the Federal Circuit Court of Appeals. This is a group of 12 regional courts that handle appeals of federal district court decisions. Federal Appeals Courts work on cases that can later be appealed to the Supreme Court.

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However, there is precedent for Justices who have not served on the federal bench.

• Former President Taft was named Chief Justice of the Supreme Court by President Harding in 1921. He remains the only person ever to have served in both offices.
• Earl Warren was the sitting governor of California when President Eisenhower named him Chief Justice in 1953.
• Sandra Day O’Connor, a former member of the Arizona state legislature, was a judge on the Arizona State Court of Appeals when President Reagan named her to the Supreme Court in 1981.
• Chief Justice William Rehnquist was the Assistant Attorney General of the Office of Legal Counsel in the Nixon Administration from 1969 to his confirmation to the Supreme Court in 1971. Prior to that he had worked in private practice in his home state of Arizona and had been a legal advisor to Barry Goldwater’s 1964 campaign for President.

Has someone who is not a lawyer ever served on the Supreme Court Bench?

Although the Supreme Court of the United States has never had a non-lawyer as a Justice, there are a number of state courts with non-lawyers on the bench.

Levi Woodbury, named to the Supreme Court by President Polk in 1851, was the first Justice to have formally attended law school[1]. Prior to this, all Justices had gotten their training through apprenticeships, similar to the British system. The apprentice system was in common use through the first century of the Supreme Court’s history, and James Byrnes in 1941[2] was the last Supreme Court Justice trained through apprenticeship.

What is the term length for Supreme Court Justices?

Once a Justice has been confirmed, he or she can serve on the Supreme Court for life “during good behavior.” Supreme Court Justices can only be removed through resignation or impeachment. The only Supreme Court Justice ever to have been impeached by the House of Representatives was Samuel P. Chase, in 1804. The Senate vote failed, and he remained on the Supreme Court until his death in 1811.

How much does a Supreme Court Justice earn?

 Associate Supreme Court Justices earn $199,200 per year. Chief Justice William Rehnquist earns about $208,100 per year, a salary equal to that of the Vice President and Speaker of the House

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What is the difference between the Chief Justice and the Associate Justices?

The Chief Justice is the leader of the Court and is responsible for its management. However, the Chief’s primary power comes from the fact that, when on the majority side in deciding a case, he/she may decide to write the opinion or to assign it to the Associate Justice of his/her choice who is also on the majority side. If the Chief Justice does not vote with the majority, the most senior member on the majority side will assign the writer of the opinion.[3]

The Chief Justice administers the oath of office to the President and is the head of the Judicial Conference of the United States, an administrative body that ensures the smooth running of the Federal Courts. The Chief Justice also presides over the President’s impeachment trial in the Senate. Chief Justice Rehnquist presided over the impeachment trial of former President Bill Clinton, who was acquitted. Additionally, the rules of the U.S. Senate state that the Chief Justice would preside over the impeachment trial of the Vice President in a situation where the Vice President is the acting President.

How is the Chief Justice selected?

The process for confirming the Chief Justice is the same as that for all positions that require the approval of the Senate—though it draws much more attention in many cases. When the sitting Chief Justice retires, the President may either choose a new Chief Justice or may elevate an existing Associate Justice and make a nomination to fill the Associate Justice seat.

Current Chief Justice William Rehnquist was an Associate Justice until 1986 when President Reagan elevated him upon the retirement of Chief Justice Warren Burger.

What is the President's role in selecting a Supreme Court Justice?

Article II, Section 2 of the U.S. Constitution states that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint… judges of the Supreme Court.” There are no objective criteria that the President must use in selecting nominees to the Supreme Court; he can choose any individual he sees fit.

A number of steps must be taken before an individual’s name is formally submitted to the Senate’s Committee on the Judiciary for consideration. Recent controversies have necessitated exhaustive background checks looking into a nominee’s history.

Usually, the administration will play a strong role in the confirmation process all the way through the Senate’s final vote.

What is the Senate’s role in the confirmation process?

Once the President has chosen the man or woman he feels is best suited to the job of Supreme Court Justice, he will submit that person’s name to the Senate and the nomination is formally submitted to the Senate’s Committee on the Judiciary (http://judiciary.senate.gov/). The Judiciary Committee is among the oldest standing committees in the Senate. The nominee’s name will also be submitted to the Federal Bureau of Investigation (http://www.fbi.gov/), which will conduct its own investigation into his or her background. Beginning with the confirmation of Justice John Harlan in 1955[4], the Judiciary Committee has conducted hearings on the suitability of all Supreme Court nominees.

The nominee, along with a number of other witnesses that the Committee feels are important in assessing his or her candidacy, will be invited to testify. Senators on the Judiciary Committee are not limited in their questioning of witnesses; they can spend as much time as they see fit and are able to question witnesses on any subject. The Judiciary Committee will eventually take a vote on the nominee, choosing either to recommend that the full Senate confirms or rejects the President’s choice. Robert Bork, President Reagan’s first nominee to replace Justice Lewis Powell in 1987, is the only nominee that the Judiciary Committee has voted to reject, but it sent the nomination to the Senate floor for a vote where it was defeated, 42-58. Among the artifacts on display at the National Constitution Center is a handwritten note from President Reagan telling an unidentified Senator that Judge Bork wanted to “stay and fight.”[5] Clarence Thomas received a split vote of 7-7 from the Judiciary Committee and was forwarded to the full Senate without a recommendation. Justice Thomas was confirmed in a 52-48 vote.

The Judiciary Committee will send its recommendation to the body of the Senate for discussion and a vote. If important questions about the nominee arise during Senate deliberations, the nomination can be sent back to the Judiciary Committee for further testimony. This occurred during the hearings on the nomination of Clarence Thomas in 1991. The nominee is confirmed if a majority of the Senate supports his or her candidacy. However, a filibuster can be mounted against a nominee and, in that case, there needs to be a positive vote of at least three-fifths of the Senators present for “cloture” to end the debate[6].

How long does it take for a nominee to be confirmed?

The time between nomination and confirmation depends on a number of factors. Nominations over the past 100 years have ranged from the same-day Senate approval of the elevation of Edward White in 1910 to the five-month fight leading to the confirmation of Louis Brandeis in 1916. Nominations in recent years have tended toward longer duration, with the average time from the President submitting the nomination to the Senate to the confirmation vote for the current Court at just over two months.

What is the role of outside groups?

The American Bar Association, the organization that provides credentials and oversight for lawyers in the United States, provides a report on each nominee to federal courts. The ABA uses a fifteen-member “Committee on Federal Judiciary” to evaluate presidential nominees who await confirmation. Each member of the committee rates the candidate as “well qualified,” “qualified,” or “not qualified.” The ABA provides these reports at the request of the Senate Judiciary Committee. Although ABA voting does not have an easily-discernable effect on how Senators vote for a particular nomination, the voice of the largest and most influential organization of lawyers may ease a nominee’s confirmation or may provide further obstacles[7].

In addition to the ABA, the Constitution’s First Amendment protects our right to free “association” and numerous lobbying groups of all political and ideological stripes have organized and weigh in on nominees to the Supreme Court. Some of the organizations involved are the Judicial Confirmation Network (http://judicialnetwork.org/), the Committee For Justice (http://committeeforjustice.org), People for the American Way (http://www.pfaw.org/), and the Alliance for Justice (http://afj.org/).

Are Supreme Court nominees ever rejected by the Senate?

Nominees to the Supreme Court are rejected at a higher rate than are any other presidential appointees covered by the advice and consent provisions in the U.S. Constitution.[8] In the past thirty years, three of the twenty individuals formally nominated to the Supreme Court were rejected by the Senate. Two others withdrew their names from consideration after a formal nomination.

The three most recent nominees rejected by the Senate were:

• Clement Haynsworth, nominated by President Nixon, was rejected by a vote of 45-55 in 1969.[9]
• Harrold Carswell, nominated by President Nixon to the same seat as Haynesworth in 1970, was rejected by a vote of 45-51. Justice Harry Blackmun ultimately filled the open seat.[10]
• Robert Bork, nominated by President Reagan, was rejected by a vote of 42-58 in 1987.[11]

What is a filibuster?

Used to describe Dutch and English pirates in the 16 th century, a “freebooter” or “vrijbuiter” was a person who roamed the seas in search of his fortune with allegiance to no nation.[12] Over time, the word changed to the modern “filibuster,” meaning continuous speech by a Senator to prevent a vote on a measure he/she opposes. It allows debate to last indefinitely. Jefferson Smith sustained probably the most famous filibuster (albeit fiction) in the film, “Mr. Smith Goes to Washington.” In 1917, the Senate first adopted a rule of cloture, allowing a vote to be taken to force an end to debate.[13] Under current Senate rules, a petition of cloture must be signed by sixteen Senators and cannot be voted until two days after it is proposed. Cloture is invoked when it is supported by three fifths of the Senators present. Rules of cloture were first invoked in 1917[14], when it was proposed that debate could be ended when two-thirds of the Senators present agreed. In 1975, the Senate rules were amended to make a three-fifths[15] vote suffice, or 60 votes with all 100 Senators voting.

Has a filibuster ever blocked a nominee to the Supreme Court?

In 1968, President Lyndon Johnson attempted to elevate associate Justice Abe Fortas to be Chief Justice, succeeding Earl Warren but some argue that this was not a filibuster in the strict sense. The appointment was made near the end of Johnson’s term in office, after he had announced that he would not run for re-election in November. After three months of heated debate, Fortas’s nomination had still not been taken up by the Senate.[16] The procedure in this case was not on the confirmation vote, but on whether the Senate should consider the nomination.[17] The forces opposing Fortas included 24 Republican and 19 Democratic Senators, and only 45 of the 88 Senators present voted for cloture, falling far short of the two-thirds supermajority (59 votes) required at the time.[18] Fortas then asked that his name be removed from consideration for Chief Justice and returned to his position as associate Justice, later resigning from the Supreme Court in 1969.[19]

What is the "nuclear option"? 

The “nuclear option,” also called the “constitutional option,” is a ruling by the Senate’s presiding officer that judicial filibusters are unconstitutional.  The Senate Majority Leader would ask the Vice President, the Senate’s presiding officer, to rule on whether using the filibuster against judges was unconstitutional.  Asking the presiding officer to rule cannot be filibustered, and the decision could be upheld by a simple majority.  This would not change Senate Rule XXII, which governs debate and the use of filibusters, but would be sufficient to end filibusters against judicial nominees.[20]

What is the “Gang of Fourteen,” what did they agree to and how might this effect Judge Roberts' confirmation hearing?

The “Gang of Fourteen” is a group of fourteen Senators, seven Democrats and seven Republicans,[22] who came together in an attempt to end the fight over judicial confirmation filibusters. When the Senate leadership threatened to use the “nuclear option” to end filibusters, the seven Democratic Senators agreed not to filibuster selected judicial nominees in exchange for the seven Republicans’ promise that they would not vote for a rules change that made the filibuster unconstitutional. The fourteen Senators agreed that the filibuster should be used only under “extraordinary circumstances,” but the definition of such circumstances has not been tested.

What will happen if no new Justice is confirmed by the beginning of the Supreme Court's term in October? 

If no nominee has been confirmed by the beginning of the Supreme Court’s 2005-2006 term in October, Justice O’Connor will remain on the bench. Justice O’Connor’s letter said her retirement would be “effective upon the nomination and confirmation off [her] successor.”

What will happen if cases are heard with Justice O'Connor sitting but not decided when she steps down?

If Justice O’Connor remains on the Court at the beginning of the 2005-2006 term, she will be able to hear oral arguments and vote on petitions for certiorari in the normal course of business on the court. Assuming that a successor is confirmed before cases have been decided, the situation will be treated as though O’Connor chose to recuse herself from the case. For a decision to set a binding precedent, it will have to be decided by at least a 5-3 majority. If an eight-justice court cannot reach a majority, the lower court’s decision will stand.

What can Senators ask during the confirmation hearing?  And what can nominees answer? 

Senators can ask whatever they wish, though agreements are often reached on what will and will not be asked.

The “Model Code of Judicial Conduct” of the American Bar Association states that judicial candidates are prohibited from “making statements that commit the candidate regarding cases, controversies or issues likely to come before the court.”[23] When nominees have been asked about specific cases, or fact patterns that are close to issues that may arise, many have refused to answer the question citing ABA ethics rules.

Can the court function with fewer than nine Justices? How many Justices are needed to hear cases and rule on them?

The Supreme Court can function with fewer than nine Justices. A quorum is needed in order to hear oral arguments. The Supreme Court rules currently require six Justices for a quorum.[24] In the present Court, Justices O’Connor, Rehnquist, and Ginsburg have all gone through treatment for cancer. Each was forced to miss time while dealing with these health concerns.

What is the longest time an individual Justice has served on the Court?

Justice William Douglas has the endurance record of serving on the Court from 1939 to 1975, a record term of 36 years, 7 months.[25] Chief Justice Rehnquist has served for 34 years. The shortest serving Justice was Thomas Johnson, whose appointment by President Washington was confirmed on August 6, 1792 and who retired after only 163 days, on January 16, 1793.[26]

What is the longest the Court has gone while missing at least one Justice?

Upon the retirement of Abe Fortas on May 14, 1969, the failed nominations of Clement Haynsworth and Harold Carswell prevented President Nixon from filling the Court for months.[27] Justice Harry Blackmun was not confirmed until May 12, 1970[28], leaving the Court shorthanded for 363 days.

What are the powers of the Chief Justice?

The Chief Justice is the chief administrative officer of the Court. He presides over the court’s conferences and sets the initial agenda for considering cases. If he votes with the majority when the Court takes its first vote on a case under consideration, “The Chief” assigns the job of writing the majority opinion to another Justice on the majority or to himself. If the Chief Justice votes with the minority, the justice in the majority with the longest tenure assigns the decision. The Chief Justice presides over impeachment trials in the Senate.

What happens if neither Judge Roberts nor President Bush’s nominee to fill Justice O’Connor’s vacancy is confirmed by the Senate when the new Supreme Court convenes on October 3?

Justice O’Connor submitted her resignation, pending the confirmation of a justice to take her place. Justice O’Connor could vote on cases—which would help determine who would write the majority opinion--but her vote would not count when the opinion is finally issued unless she remains on the bench because a new justice has not yet been confirmed to taker her place.

According to an article by Linda Greenhouse of The New York Times (http://www.nytimes.com/2005/09/05/politics/politicsspecial1/05court.html?pagewanted=2), in a past similar predicament, Chief Justice Burger convened a committee to sort out which cases could be argued before a seven-member court and which were likely to be so contentious that they should be held when the court was a full capacity. The landmark abortion case, Roe v. Wade, was one of the cases under consideration at the time. The committee decided that it could be heard as originally scheduled; seven justices heard it, but decided after several months that it should be reargued and decided by a nine-member court.

If Judge Roberts is not confirmed by October 3, the senior justice, John Paul Stevens, will preside over the court's public sessions and private conferences in the absence of a chief justice, as he did during the past term when Chief Justice Rehnquist was absent due to illness.

When was the last time the Supreme Court had only 7 justices?

In 1971, after the retirements of Justices Hugo L. Black and John Marshall Harlan, days before the new term began.

For more historical perspective on judicial nominations, you can refer to an article by National Constitution Center President Richard Stengel: ( http://www.philly.com/mld/inquirer/news/editorial/12568421.htm )

Sources

[1] Oyez: Supreme Court History. 2005. “Levi Woodbury: Biography.” Online, http://www.oyez.org/oyez/resource/legal_entity/30/biography, accessed 7/20/2005

[2] Library of Congress. 2005. “Today in History: May 2.” Online at http://memory.loc.gov/ammem/today/may02.html, accessed July 20, 2005

[3] Simon, D. S. 2005. “Supreme Court Decision Making,” Online at http://faculty.smu.edu/dsimon/, accessed July 20, 2005

[4] United States Senate. 2005. “Nominations.” Online, http://www.senate.gov/artandhistory/history/common/briefing/Nominations.htm#8, accessed 7/20/2005

[5] National Constitution Center, “Note from President Reagan to Unidentified Senator,” Permanent Collection.

[6] United States Senate. 2005. “Art and History: Filibuster and Cloture.” Online, http://www.senate.gov/artandhistory/history/common/briefing/Filibuster_Cloture.htm, accessed 7/20/2005

[7] American Bar Association. 2005. “The ABA Standing Committee on Federal Judiciary: What it is and how it Works.” Online, http://www.abanet.org/scfedjud/backgrounder.pdf, accessed 7/20/2005.

[8] United States Senate. 2005. “Introduction.” Art and History: Nominations. Online, (http://www.senate.gov/artandhistory/history/common/briefing/Nominations.htm#1), accessed 7/20/2005.

[9] CQ Press. 2005. “CQ Press In Context: Future of the Supreme Court.” Online, http://www.cqpress.com/incontext/SupremeCourt/the_selection.htm, accessed 7/5/2005.

[10] Ibid.

[11] Ibid.

[12] Random House. 2001. “Words at Random: February 7, 2001.” Online, http://www.randomhouse.com/wotd/index.pperl?date=20010207, accessed 7/18/2005.

[13] U.S. Senate. 2005. “Filibuster and Cloture.” Online, http://www.senate.gov/artandhistory/history/common/briefing/Filibuster_Cloture.htm, accessed 7/12/2005.

[14] Ibid.

[15] Ibid.

[16] National Public Radio. 2005. “A History of Conflict in High Court Appointments.” Online, http://www.npr.org/templates/story/story.php?storyId=4732341, accessed 7/10/2005.

[17] Dean, J. 2005. “The Facts About the Fortas Filibuster.” Online, http://hnn.us/articles/11753.html, accessed 7/19/2005.

[18] The Washington Times. 2005. “Op Ed: Spinning the Fortas Filibuster.” 5/13/2005. Online, http://www.washtimes.com/op-ed/20050512-084718-4268r.htm, accessed 7/17/2005.

[19] National Public Radio. 2005. “A History of Conflict in High Court Appointments.” Online, http://www.npr.org/templates/story/story.php?storyId=4732341, accessed 7/10/2005.

[20] Cillizza, C. 2005. “The Rules of the Senate.” Slate.com. Online, http://slate.com/id/2116907, accessed 7/20/2005.

[21] Ibid.

[22] Stolberg, C.G. 2005. “Swing Senators Meet on the Court Vacancy, but Their Course Remains Uncharted.” New York Times. Online, http://www.nytimes.com/2005/07/15/politics/politicsspecial1/15gang.html, accessed 7/15/2005.

[23] American Bar Association. 2004. “Model Code of Judicial Conduct.” Online, http://www.abanet.org/judicialethics/2004_CodeofJudicial_Conduct.pdf, accessed 7/16/2005.

[24] Supreme Court of the United States. 2005. “Rules of the Supreme Court of the United States.” Online, http://www.supremecourtus.gov/ctrules/rulesofthecourt.pdf, accessed 7/17/2005.

[25] Oyez: Supreme Court Multimedia. 2005. “William O. Douglas: Biography.” Online, http://www.oyez.org/oyez/resource/legal_entity/79/biography, accessed 7/15/2005.

[26] Oyez: Supreme Court Multimedia. 2005. “Thomas Johnson: Biography.” Online, http://www.oyez.org/oyez/resource/legal_entity/7/biography, accessed 7/16/2005.

[27] National Public Radio. 2005. “A History of Conflict in High Court Appointments.” Online, http://www.npr.org/templates/story/story.php?storyId=4732341, accessed 7/10/2005.

[28] United States Senate. 2005. “Nominations.” Online, http://www.senate.gov/pagelayout/reference/nominations/Nominations.htm, accessed 7/20/2005.