U.S. Supreme Court Vacancy and Appointment Process: A Historical Perspective

Date: 01/08/2024

The U.S. Supreme Court, established with the passage of the Judiciary Act of 1789, holds a significant place in American history. Since its inception in 1790, the Court has preserved many of its founding traditions, maintaining a close resemblance to its original form compared to the other branches of the federal government.

The U.S. Constitution indeed grants Congress the power to determine the number of Justices. Initially, the Judiciary Act of 1789 established six Justices, comprising one Chief Justice and five Associates. Throughout the years, Congress passed several acts to alter this number, ranging from a minimum of five to a maximum of ten. However, the Judiciary Act of 1869 ultimately set the number of Justices at nine, which remains unchanged to this day.

Vacancy on the Court

In the United States, the process of nominating and confirming a Supreme Court Justice is indeed triggered by the occurrence of a vacancy on the Court, typically due to the death, retirement, or resignation of a Justice. Upon such an event, it becomes the constitutional duty of the President to choose a successor to the departing Justice. Subsequently, the Senate is constitutionally mandated to fulfill its role by offering “advice and consent” to the President regarding the nominee. This intricate process underscores the shared responsibility between the Executive and Legislative Branches in shaping the composition of the highest judicial body in the country.

The appointment of a Supreme Court Justice is an event of major significance in American politics. Each appointment is crucial due to the substantial judicial power the Supreme Court holds as the highest appellate court in the federal judiciary. Vacancies on the nine-member Court are typically infrequent and may occur only once or twice, or never at all, during a particular President’s years in office. The Constitution grants Justices on the Supreme Court what amounts to lifetime appointments, which, by constitutional design, helps guarantee the Court’s independence from the President and Congress.

The nomination and confirmation process reflects the nuanced dynamics of the political landscape, encompassing considerations of ideology, jurisprudential approach, and historical precedent. As such, the role of the Supreme Court and its justices in interpreting the Constitution and shaping legal precedents is deeply intertwined with political realities and considerations, contributing to the ongoing discourse on the judiciary’s place within the broader governmental framework.

The appointment of a Supreme Court Justice is a momentous event in American politics. Each appointment to the nine-member Court holds great significance due to the substantial judicial power exercised by the Court, distinct from and independent of the executive and legislative branches. Despite the average frequency of a new Justice joining the Court being approximately every two years, the timing of any particular appointment is unpredictable. Vacancies on the Court may be rare, occurring once, twice, or not at all during a specific President’s tenure, or they may happen in quick succession, allowing a President multiple opportunities to nominate individuals to the Court.

Precedence of Supreme Court Appointments

The appointment of a Supreme Court Justice holds significant weight for the President, as it can shape the perception of their presidency in history. On the other hand, the Senate plays a crucial role in confirming a Justice, exercising its “Advice and Consent” function as a safeguard on the President’s judgment. This process is distinct from the appointment of high executive branch positions, with the Senate traditionally being less deferential to the President in Supreme Court Justice nominations. The precise scrutiny applied to these nominations underscores the unique importance of the Court as a coequal and independent branch of the government, with Senators recognizing the potential for lifetime appointments of appointed Justices.

Under 28 U.S.C. §371, Supreme Court Justices, like other Article III federal judges, have the option to retire and receive retirement compensation through either taking “senior status” or retiring from office completely. This retirement compensation becomes available beginning at age 65, provided the Justice has served a minimum of 10 years as an Article III judge, and their age plus overall judicial experience totals 80 years. This means that a Justice of age 65 must have served 15 years to become eligible for retirement compensation, with similar adjustments based on age and years of service.

Those who opt for senior status retire from regular active service but retain their judicial office and salary, subject to annual certification of fulfilling certain judicial or administrative duties. On the other hand, judges who retire from office entirely surrender their judicial position and receive a frozen lifetime annuity equal to the salary of the office at the time of retirement. In contrast, a Justice’s resignation involves voluntarily giving up their judicial office without meeting the age and service requirements of the Rule of 80, making them ineligible to receive retirement compensation.

“…Judges and Justices are servants of the law, not the other way around. Judges are like umpires. Umpires don’t make the rules, they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules, but it is a limited role. Nobody ever went to a ball game to see the umpire.

Judges have to have the humility to recognize that they operate within a system of precedent shaped by other judges equally striving to live up to the judicial oath, and judges have to have the modesty to be open in the decisional process to the considered views of their colleagues on the bench”. (Chief Justice John G. Roberts, Jr., took his seat on the Supreme Court on September 29, 2005.)

In the United States, Article III judges, including Justices of the Supreme Court, are appointed by the President with the advice and consent of the Senate. The U.S. Constitution does not provide a specific job description for Article III judges. However, the nomination and confirmation processes serve to bring to light information about the nominees, allowing for thorough consideration of their qualifications and suitability for the positions.

” . . . The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office.“
—    Article III, Section I, U.S. Constitution

The process of nominating and confirming a Justice for the Supreme Court in the United States involves both the President and the Senate, granting the Executive and Legislative Branches a voice in the composition of the Court. The Constitution does not specify qualifications for Justices in terms of age, education, profession, or native-born citizenship. However, historically, Justices have had legal training, with many studying law under a mentor due to the scarcity of law schools in the 18th and 19th centuries.

An interesting historical fact is that the last Justice to be appointed without attending any law school was James F. Byrnes (1941-1942). Byrnes, who did not graduate from high school, taught himself the law and passed the bar at the young age of 23. Another unique case is that of Robert H. Jackson (1941-1954) who, although he did not attend an undergraduate college, studied law at Albany Law School in New York. At the time of his graduation, Jackson was only twenty years old, which was below the requirement of being twenty-one years old to obtain a law degree. Consequently, Jackson received a “diploma of graduation,” and nearly three decades later, Albany Law School awarded him a law degree, recognizing his original graduating class of 1912.

The appointment of the Chief Justice follows the same process as that of the Associate Justices, where the President selects and the Senate confirms. Interestingly, there is no stipulation that the Chief Justice must first serve as an Associate Justice, but historically, 5 out of the 17 Chief Justices have done so. Among them, three Chief Justices were already members of the Court when they were appointed as Chief Justice:

1. Edward Douglas White (Associate Justice 1894-1910, Chief Justice 1910-1921)
2. Harlan Fiske Stone (Associate Justice 1925-1941, Chief Justice 1941-1946)
3. William H. Rehnquist (Associate Justice 1972-1986, Chief Justice 1986-2005)
   Two Chief Justices had a break in their service between their periods as Associate and Chief Justices:
4. John Rutledge (Associate Justice 1789-1791, Chief Justice 1795)
5. Charles Evans Hughes (Associate Justice 1910-1916, Chief Justice 1930-1941)

Senate Judiciary Questionnaire – Nomination Process

I. Biographical Information

1. Education: List each college and law school you have attended, including dates of attendance, degrees received and dates degrees were granted.
2. Employment record: List (by year) all governmental agencies, businesses or professional corporations, companies, firms, or other enterprises, partnerships, institutions, and organizations, nonprofit or otherwise, with which you are or have been connected as an officer, director, partner, proprietor, or employee.
3. Writings and Speeches: (a) List the titles, publishers, and dates of books, articles, reports, letters to the editor, editorial pieces, or other published material you have written or edited. Please supply one copy of all published material to the Committee.
4. Citations: Please provide: (a) Citations for all opinions you have written (including concurrences and dissents).

II. Financial Data and Conflict of Interest (Public)

1. List sources and amounts of all income received during the calendar year preceding your nomination and for the current calendar year, including any salaries, fees, dividends, interest, gifts, rents, royalties, patents, honoraria, and other items of $500 or more.
2. Have you ever held a position or played a role in a political campaign? If so, please identify the particulars of the campaign, including the candidate, dates of the campaign, your title and responsibilities.
3. The American Bar Association’s commentary to its Code of Judicial Conduct states that it is inappropriate for a judge to hold membership in any organization that . . . discriminates on the basis of race, sex, or religion. Please list all business clubs, social clubs or fraternal organizations to which you belong or have belonged since graduating from law school . . . .
4. Has anyone involved in the process of selecting you as a judicial nominee (including, but not limited to a member of the White House staff, the Justice Department, or the Senate or its staff) discussed with you any specific case, legal issue or question in a manner that could reasonably be interpreted as seeking any…assurances concerning your position on such case, issue, or question? If so, please explain fully.
5. Please discuss your views on the role of the judiciary in our governmental system and the . . . criticism involving “judicial activism.”

Nomination of a Sitting Justice to Chief Justice Position

In the United States, when a Chief Justice vacancy arises, the President has the authority to nominate a sitting Associate Justice for the position of Chief Justice. If the nominee is confirmed by the Senate, they must resign from their position as an Associate Justice before assuming the role of Chief Justice. This, in turn, necessitates a new nomination by the President to fill the vacated Associate Justice seat.

Although this scenario is relatively uncommon, historical records show that from 1900 to the present, Presidents have attempted to promote Associate Justices to Chief Justice four times, with the Senate confirming the nominees on three occasions. For instance, in 1986, President Ronald Reagan nominated then-Associate Justice William H. Rehnquist to be Chief Justice following Chief Justice Burger’s decision to step down from the Court. Consequently, President Reagan also nominated Antonin Scalia to fill the Associate Justice vacancy created by Justice Rehnquist’s elevation to Chief Justice.

Senate Consultation Process

The differing interpretations of the phrase “advice and consent” have been a subject of debate among constitutional scholars. Some assert that the Framers of the Constitution intended for the Senate to play an advisory or recommending role to the President before the selection of a nominee, in addition to a confirming role afterwards. This perspective suggests that the term “advice” implies that the Senate is constitutionally entitled to offer advice to the President on whom, as well as what kinds of persons, he should nominate to certain posts, although this advice is not binding. As a matter of courtesy, Presidents have historically consulted with Senate party leaders and members of the Senate Judiciary Committee before choosing a nominee.

President Clinton’s search for a successor to retiring Justice Harry A. Blackmun, during the spring of 1994, is illustrative of a President seeking and receiving Senate advice. According to one report, the President, as he came close to a decision after holding his options “close to the vest” for more than a month, “began for the first time to consult with leading senators about his top candidates for the Court seat and solicited advice about prospects for easy confirmation.” In 2005, the Administration of President George W. Bush engaged in a level of consultation with Senators over prospective Supreme Court nominations that White House officials called unprecedented. Prior to the President’s nominations to the Court of John G. Roberts Jr., Harriet E. Miers, and Samuel A. Alito Jr., the President and his aides reportedly consulted with, and sought input from, the vast majority of the Senate’s Members. Prior to announcing the Miers nomination, for instance, it was reported that “the President and his staff talked with more than 80 Senators.” Likewise, in 2009, President Barack Obama consulted Senators prior to selecting Sonia Sotomayor to succeed outgoing Justice David Souter. Announcing the nomination of Judge Sotomayor to the Court, President Obama said the selection process had been “rigorous and extensive” and included seeking “the advice of Members of Congress on both sides of the aisle, including every member of the Senate Judiciary Committee.”

Professional Qualifications

While the “desire to appoint justices sympathetic to their own ideological and policy views may drive most presidents in selecting judges,” the field of potentially acceptable nominees for most presidents, according to Watson and Stookey, is narrowed down by at least five “subsidiary motivations”—(1) rewarding personal or political support, (2) representing certain interests, (3) cultivating political support, (4) ensuring a safe nominee, and (5) picking the most qualified nominee. Watson and Stookey, Shaping America, p. 59

The evaluation of Supreme Court nominees by the American Bar Association’s Standing Committee on the Federal Judiciary is based solely on the candidate’s “professional qualifications: integrity, professional competence, and judicial temperament.” The committee emphasizes that this evaluation does not consider the nominee’s philosophy, political affiliation, or ideology. This rigorous evaluation process underscores the importance of candidates’ professional qualifications and their capacity to embody integrity, competence, and judicial temperament.

The U.S. Constitution “does not preclude a president from nominating nonlawyers to key Justice Department posts or federal judgeships,” the delegates to the constitutional convention and the ratifiers “did occasionally express their expectation that a president would nominate qualified people to federal judgeships and other important governmental offices; but those comments were expressions of hope and concern about the consequences of and the need to devise a check against a president’s failure to nominate qualified people, particularly in the absence of any constitutionally required minimal criteria for certain positions.” Gerhardt, The Federal Appointments Process, p. 35.

Senator Mitch McConnell, the Republican Majority Leader, stated, on February 13, 2016, that “the American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new President.” Consequently, the Senate did not act on the Garland nomination. See Senator McConnell, “Justice Antonin Scalia,” Press Release, February 13, 2016. In contrast, Senator Harry Reid argued that, the decision not to consider President Obama’s nominee amounted to a “full-blown effort to delegitimize President Barack Obama, the presidency, and undermine our basic system of checks and balances.” See Alan Fram, Associated
Press, “The Senate’s top Democrat says Republicans are trying to delegitimize Barack Obama’s presidency by trying to prevent him from filling the Supreme Court vacancy,” U.S. News & World Report, February 22, 2016.

The Senate hearing

The process of considering a Supreme Court nominee in the United States has evolved through three stages since the late 1960s. These stages comprise a pre-hearing investigative phase, public hearings, and a committee decision on the recommendation to be made to the full Senate.

Throughout the pre-hearing investigative stage, the nominee is required to respond to a detailed questionnaire from the Judiciary Committee, which includes providing biographical, professional, and financial disclosure information. Concurrently, the FBI conducts its own investigation and submits confidential reports to the committee. Additionally, the American Bar Association evaluates the professional qualifications of the nominee, providing ratings such as “well qualified,” “qualified,” or “not qualified.” It is customary for the nominee to pay courtesy calls on individual Senators, including those not serving on the Judiciary Committee, before the hearings commence.

Following the conclusion of the investigation, the nominee testifies in hearings before the Judiciary Committee. Typically, the nominee’s initial hearing takes place approximately 41 days after formal nomination by the President. During these hearings, Senators interrogate the nominee on a wide array of topics, encompassing legal qualifications, biographical background, past actions as public figures, social and political issues, the Constitution, specific court rulings, contemporary constitutional controversies, and judicial philosophy. Recent nominees have endured hearings lasting four or five days.