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How do you become a Supreme Court justice?

| Judy Berthiaume

Does the U.S. Supreme Court matter in your day-to-day life?


Gay marriage, voter rights, U.S. immigration policy, carbon emissions, school prayer, abortion, labor unions, affirmative action and racial bias in law enforcement are among the hot-button issues that are likely to make their way to the country’s highest court in the next few years.

Since each of the nine justices serve a lifetime appointment — meaning they will likely be around far longer than the president who nominated them — confirming a new justice is a really big deal.

More than a year ago, Justice Antonin Scalia died, creating a vacancy on the court. Then-President Obama nominated Judge Merrick Garland, but the Senate refused to hold confirmation hearings so the seat remained unfilled through the presidential campaign and election.

In January, newly inaugurated President Donald Trump introduced Judge Neil Gorsuch as his nominee for the still vacant seat.

So … now what?

Experts from the UW-Eau Claire Center for Constitutional Studies are ready, willing and able to answer that question.

The Center — established a year ago to promote research, education and community outreach on matters related to the Wisconsin Constitution and the U.S. Constitution — will host two events this month relating to the U.S. Supreme Court justice confirmation process.

Dr. Eric Kasper, an associate professor of political science who also serves as the director of the Center for Constitutional Studies, took some time in advance of those sessions to explain the confirmation process.

What happens to Obama’s nominee, Judge Merrick Garland?

President Obama’s nomination expired when the new legislative session began on Jan. 3. Pursuant to Senate rules, if a nomination is not confirmed or rejected during the session when it is submitted, it is returned to the White House and can’t be acted on unless the president makes the nomination again.

Judge Garland could be re-nominated in the future. However, given his perceived ideology, it is not likely that a Republican president would nominate him. Given his age (64), he will likely be considered too old the next time a Democrat occupies the White House.

How does Judge Gorsuch move from current nominee to confirmed justice?

After a president announces a nomination, several things take place before a Senate confirmation vote (assuming such a vote is taken).

After the Senate receives the nomination, it goes to the Senate Judiciary Committee. Senators and their staff will research the nominee to prepare questions for the senators to ask during the committee’s public hearings.

During this phase, the nominee also often meets with senators one-on-one.

Typically, the Judiciary Committee will hold a hearing, followed by a committee vote, which it reports to the full Senate.

The full Senate then can debate the nomination before taking a vote.

If a majority of the senators confirms the nominee, the nominee is sworn in as a justice of the Supreme Court.

Will the public see this process?

Some of the process, including the background research and one-on-one meetings, is behind closed doors.

However, significant portions now are open to the public, including the Judiciary Committee hearings and the activity on the Senate floor.

For much of the country’s history, the process was done almost exclusively in secret.

Supreme Court nominee testimony at public Judiciary Committee hearings was not routine until John Marshall Harlan's in 1955, and Sandra Day O’Connor’s hearing in 1981 was the first time nominee testimony was on television.

Today, these committee hearings and subsequent Senate floor debates are televised gavel-to-gavel, so the public can see every question asked, every answer given and every point debated.

During the research phase, what kinds of things are considered?

The Senate asks a nominee to complete an extensive questionnaire that asks about many aspects of the nominee’s professional life, personal philosophy and past activities.

Judge Gorsuch’s completed questionnaire totaled 68 pages.

Senators and their staff read opinions written by nominees who are current or former judges, and review the transcripts or recordings of any of their past speeches.

They will comb through books, articles or public memos written by the nominee.

They also may contact people who know or have worked with the nominee to fill in what may be missing in any official materials.

How can legislators influence the process?

Since Republicans currently make up a majority of the senators, they hold the leadership positions, including Majority Leader and Judiciary Committee chair. Thus, they have the power to bring the nomination to a hearing.

After the hearing, since Republicans hold 11 of the 20 seats on the Judiciary Committee, they can advance a nomination to the floor.

With Republicans currently holding 52 of the 100 seats in the Senate, the Democrats cannot block the nomination on an up- or-down vote without at least three Republicans joining them. In other words, some Republican senators would have to decide that they do not want to vote for confirmation.

However, the Democrats hold more than 40 seats in the Senate so they could filibuster the nomination.

What do terms like “filibuster” and “go nuclear” mean in this process?

A filibuster is a delay tactic where a minority party in the Senate can continue debating a nomination indefinitely, thus not allowing it to come to a vote, and forcing the majority party to withdraw the nomination.

If a filibuster were successful against Judge Gorsuch, it would necessitate President Trump withdrawing the nomination and submitting a new nomination.

A vote of three-fifths of the senators (currently 60 of 100) can vote for cloture, which would end debate and bring the nomination to a vote.

The “nuclear option” is a term that means the Senate would vote to eliminate the use of the filibuster in a given context.

In 2013, the Democratic majority used the nuclear option to eliminate the use of the filibuster for executive branch nominations and lower federal court appointments.

However, the filibuster remains an option for Supreme Court nominations.

If Republican senators thought that Democrats might be preparing to filibuster the Gorsuch nomination, they could use the nuclear option to eliminate filibusters for Supreme Court nominations.

Eliminating the filibuster would take a simple majority vote, but some Republican senators may not support it because it would take away their power to filibuster any future Supreme Court nomination.

Does the Senate often oppose or reject a president’s candidate?

The Senate sometimes rejects Supreme Court nominees or refuses to act on them.

This is more likely if the president’s party does not control the Senate, if a president makes the nomination in the last year of their term, if senators perceive great ideological distance between the nominee and the justice being replaced, or if the nominee is perceived as unethical or unqualified.

Most Supreme Court nominees are confirmed.

Of the 161 official nominations previous presidents have made to the Senate, 124 — 77 percent — were confirmed, including seven who declined the appointment and one who died before taking his seat on the court.

Are nine justices required for the U.S. Supreme Court?

The Constitution does not specify how many justices sit on the Supreme Court. That is a decision made by Congress.

The original Supreme Court had six justices, and there were 10 justices at one point.

President Franklin Roosevelt submitted a proposal to Congress in 1937 that would have grown the number of justices to 15.

The current number, nine, was established by Congress shortly after the Civil War, and has since remained.

Has the nomination of a justice always been political?

The first nominee rejected by the Senate because of political disagreements was John Rutledge in 1795. President George Washington nominated Rutledge, but Rutledge had publicly criticized the terms of a treaty with Great Britain, a treaty that was popular with a majority of the senators, and they voted to reject him.

In 1930, the Senate rejected John Parker due to allegations of racism. In 1987, the Senate rejected Robert Bork, in part, because of his political ideology and his method of constitutional interpretation. And in 1968 the Senate filibustered Abe Fortas, in part, because of his political ideology. So both Republican and Democratic nominees have not made it through to confirmation.

While the process always has been, to a certain extent, a political one, the partisanship has ramped up in recent decades because the court has increasingly made decisions on controversial social issues, including school prayer, the rights of criminal suspects, abortion, flag burning, capital punishment, affirmative action and the rights of corporations.

As the court’s decisions in these areas have increased, more pressure is on senators to oppose nominees from presidents of the other party.

Partisans now often see the court as another place where issues of public policy are won or lost.

What else should we know?

The increased involvement by the public is another significant area of change in Supreme Court nominations over the Court’s history.

Although some public input and feedback has always been a part of the process, early on it was limited to people who knew the president and to members of the press.

In the 19th century, the Senate took action on Supreme Court nominations almost immediately, with Senate floor votes frequently occurring quickly, sometimes within a day of the nomination being referred to the Senate.

After the Constitution was amended in 1913 to provide for the direct election of senators, there was increased pressure for senators to open more of the consideration of nominees to the public and listen to constituents on how to vote.

This has led to more in-depth consideration of nominations by the Senate, which helps to explain why the average confirmation process now takes approximately 2-3 months from nomination to the final Senate vote.