CONVERSATION / Government / Primer

Order In The Court


President Trump has nominated Brett Kavanaugh to fill Justice Kennedy's vacant seat on the court. As Kavanaugh awaits his confirmation, here is a refresher on Supreme Court nomination procedures and history. 


How Will He Get There?

Article 2, Section 2 of the U.S. Constitution grants the President power to nominate Supreme Court Justices to vacant seats on the Court. This power is enumerated in Article 2 since it deals with Presidential action, and not Article 3, which deals with powers of the Supreme Court. Article 2 also mandates that the President's nominations require the “advice and consent” of the Senate. In other words, the Senate must approve the President's nominee with a majority vote.

The President can make an appointment during a recess of the Senate. A recess refers to a period during which the Senate is out of session. If a recess appointment is made, the nominee automatically assumes their position on the Court, but is subject to the approval of the Senate once it reconvenes. This has happened 10 times in U.S. history, and only one of these appointments has not been confirmed by the Senate at a later date. A recess appointment has not happened since President Eisenhower in 1958, as the Senate has stated that it highly discourages such actions. Further, the Senate is in session far more often than it was in the days of the Founding Fathers. Air travel has lessened the need for recess appointments, as Senators could convene in a few days if necessary.

When a seat opens on the Supreme Court, the President gathers his advisors and begins selecting possible choices for the nomination. This is an intensive process that involves going through the candidates' prior case work and decisions. A background check and character assessment are also common to ensure that there are not any major issues that might come up during confirmation hearings. Once the President has made a choice, he submits his formal nomination to the Senate in writing.

Upon receiving the President’s nomination, the Senate begins its confirmation process. This starts in the Senate Judiciary Committee, where committee members research and interview the nominee. These proceedings are often public. After this, the committee votes to bring the nominee before the whole Senate. This vote can pass with a positive, neutral, or negative recommendation. This process was not standard for nominees before 1955. Hearings were far more relaxed and nominees rarely gave personal testimony at the Capitol.

If the nominee passes with a simple majority, then there is one last step before the they can take their oath. The President must sign a commission. Once this is completed, the nominee takes both the Constitutional and Judicial oaths and are officially sworn into office.


FAQ: Supreme Court Basics

How many Supreme Court Justices have there been?

There have been 113 Justices in the Court’s history. However, the Senate has confirmed 125 Justices. Five of them were elevations of a sitting Justice to the Chief Justice position. The other 7 declined their confirmation.

How many Justices have had their nomination rejected?

Only 12 Justices have ever had their nomination rejected. Of the 163 nominations: 125 were confirmed, 12 were withdrawn, 3 were postponed, and 10 drew no action from the Senate. The 163rd nomination is currently sitting before the Senate: Brett Kavanaugh.

Does every President nominate Justices?

Every President has the power to nominate Justices, but there must be a vacant spot to fill. Regardless, nearly every President has nominated at least one Supreme Court Justice. Only 4 Presidents never nominated: William Henry Harrison, Zachary Taylor, Andrew Johnson, and Jimmy Carter. Only Jimmy Carter served at least one full term in office without nominating someone to the Supreme Court.

How many Justices can serve on the Supreme Court at once?

The Constitution gives no guidance for how many Justices can serve at once. It can be determined by an act of Congress. The number varied throughout history, but it has been set at 9 since 1869.

Who can be a Supreme Court Justice?

Technically anyone can be on the Supreme Court, but they would have to be confirmed by the Senate. The Constitution does not contain guidelines as it does for the Executive or Legislative branches such as age, residency, or natural-born citizenship. Since 1942 every Justice has been a lawyer.

How long do Justices serve for?

The Constitution allows Justices to serve indefinitely, dependent only upon “good behavior”. This means that Justices have life terms. Most Justices in recent history resign, but some have died while holding a seat. The “good behavior” qualification allows for impeachment of Justices who are corrupt, lazy, or malicious, for example.

Can Justices be removed from the Court?

Impeachment is possible if it is determined by Congress that a Justice does not meet the “good behavior” standard. Only one Justice has been impeached, though he was acquitted by the Senate (Samuel Chase, 1805).

Notable Nominations

Hover over the images in the gallery to read about landmark episodes in Supreme Court nomination history.