The Process to Become a Supreme Court Justice

Supreme Court nomination: What happens after Trump makes his pick?

On Monday night, President Donald Trump nominated Brett Kavanaugh, a judge on the U.S. Court of Appeals for the District of Columbia, to replace retiring Justice Anthony Kennedy on the United States Supreme Court. 

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Kavanaugh faces a months-long process that has become one of the most partisan practices the Senate undertakes.

Here’s a look at the process the Supreme Court nominee will go through:

1. The president selects a nominee – On the death, retirement or impeachment of a Supreme Court justice, the president has a constitutional duty to nominate someone to take his or her place.

Article Two of the U.S. Constitution – the "Appointments Clause" – gives the executive branch the authority to appoint court justices. The clause reads in part, "… he shall nominate, and by and with the advice and consent of the Senate, shall appoint ... judges of the supreme court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law..." 

Not an easy task. The president generally looks for a person with substantial judicial experience; one who shares his ideology -- almost always a member of the same political party -- and one who actually has a chance to be confirmed by the Senate.

Before the nominee is announced, he or she is investigated by the FBI and other agencies.

2. The confirmation process – Who can serve on the high court? Anyone, really, since the Constitution does not set qualifications for a Supreme Court justice. The only hurdle the Constitution requires is that the nominee be confirmed by the Senate in order to take a seat on the court.

Once that nominee is put forth by the president, the nomination will go before the Senate’s Judiciary Committee. The committee is currently made up of 11 members of the majority party, the Republicans, and nine members of the minority party, the Democrats. That ratio of members is based on the ratio of majority to minority members of Senate.

After a nominee is called to be questioned by the committee, he or she will make the rounds of committee members for personal interviews to meet them and answer any questions they may have about his or her thinking on certain issues that could come before the court.

The Judiciary Committee will hold hearings, questioning the nominee, his or her supporters and his or her opponents.

While the nominee attends the hearings, which can last for days, the Constitution does not require a nominee to testify.
Likewise, the committee's practice of personally interviewing nominees isn’t a historical one, either. The committee only began to do that in the 1940s. 

After the hearings, a vote is taken in the committee. The nominee will receive either a favorable recommendation, a negative recommendation or the nomination will be reported to the full Senate with no recommendation.

3. The floor vote – When the nomination makes it out of the committee and to the Senate floor, it is at the mercy of the majority party, since that party sets the agenda for Senate action.

If is the Senate majority leader’s job to determine when the nomination sees the light of day on the full Senate floor. There is no time frame for him to act. 

If the nomination gets out of committee and debate on his confirmation is concluded and it comes to a vote, it will take a simple majority vote, 51 of the potential 100 votes, to either “advise and consent to the nomination” or reject the nominee.

Senate Majority Leader Mitch McConnell, (R-Kentucky), has said he expects a vote on the president’s nominee sometime in the fall, likely in October. Democrats have been calling for the vote to be delayed until after the midterm elections, which happen in November. They say it is unfair to vote on a candidate with the likelihood that new senators will be elected.

4. Can the Democrats do anything to slow it down or stop it?

No, they can’t, thanks to a vote in 2013.

That year, the Democratic majority in the Senate changed the rules so that lower court and cabinet nominees could be confirmed with a simple majority (if all members are present, 51 of 100 votes), rather than by a “super majority” vote – or one that requires 60 votes.

What was left in place after that rule change was that a filibuster, a way to slow down a vote on an issue, could be used for Supreme Court nominees as long as it got 60 votes.

In April 2017, Republicans changed the rule themselves, triggering the “nuclear option,” which changes the 60-vote threshold needed to end debate on a Supreme Court nominee to a simple majority to kill a filibuster. That means that if 51 senators say the debate on a candidate is over, then the nomination vote can no longer be delayed. 

5. The numbers for the second Trump nominee

The Republicans hold a 51-49 majority in the Senate. However, Sen. John McCain, (R-Arizona), is being treated for brain cancer and, by most accounts, will not travel to Washington, D.C. to cast a vote for the next justice if the vote happens this fall, as predicted.

So, assuming McCain does not return to vote, all other Republicans are present and vote for the nominee and all Democrats are present and vote against him or her, the vote would be 50-49.

In short, Republicans cannot afford to lose a single vote – unless they can pick up some Democratic votes.

What is the likelihood they will pick up Democratic votes? It may be better than you would think because this is a midterm election year.

6. Which Republicans could flip?

Sens. Lisa Murkowski, of Alaska, and Susan Collins, of Maine, are two Republican senators who could give the White House cause for concern. Both have said they will not support a candidate who does not appear to support Roe v. Wade, the landmark U.S. Supreme Court decision that made the right to an abortion legal in the United States.

7. Which Democrats could flip?

Three Democratic senators who are facing tough re-election challenges in states that Trump won handily are being seen as possible flip votes for Republicans. All three Democrats broke ranks in the last Supreme Court nomination and voted for Trump’s pick of Gorsuch to replace Antonin Scalia. 

They are:

Sen. Joe Manchin of West Virginia
Sen. Heidi Heitkamp of North Dakota
Sen. Joe Donnelly of Indiana

Seven other Democratic senators are from states Trump also won and could decide a vote cast for a Trump nominee would play well in their states. They are:

Sen. Tammy Baldwin of Wisconsin
Sen. Sherrod Brown of Ohio
Sen. Bob Casey of Pennsylvania
Sen. Claire McCaskill of Missouri
Sen. Bill Nelson of Florida
Sen. Debbie Stabenow of Michigan
Sen. Jon Tester of Montana

FILE - In this Jan. 25, 2017, file photo, the Capitol in Washington at sunrise. The coming battle over a Supreme Court nominee promises to be a bruising one. Republicans are eager for conservatives to gain a firm majority on the court. Democrats are voicing alarm about what the new justice could mean for charged issues such as abortion rights and gay rights.  (AP Photo/J. Scott Applewhite, File)

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