CRS Issue Statement on Judicial Branch Appointments

Denis Steven Rutkus, Coordinator
Specialist on the Federal Judiciary

Under the Constitution of the United States, the President and the Senate share responsibility for filling vacancies within the federal judiciary. While it is the President who nominates, the appointment of each judicial nominee also requires Senate confirmation. 

Of particular interest to the Senate are nominations that the President makes to the Supreme Court, which typically are events of major significance in American politics. New appointees to the Court, Senators recognize, can have a potentially decisive impact on its perceived ideological "balance" and on whether prior Court rulings will be upheld, modified, or overturned in the future. While Supreme Court nominations sometimes proceed smoothly through the confirmation process, others have encountered substantial Senate opposition. Among the latter was former President George W. Bush's nomination of Samuel A. Alito Jr. to be Associate Justice, whom the Senate confirmed by a 58-42 vote, after a 72-25 vote to end a filibuster against the nomination. 

Also of interest to the Senate are a President's nominations to lower federal courts—specifically, to the U.S. district courts and the U.S. circuit courts of appeals. During the past decade, the lower court appointment process has been marked by controversy, partisan conflict, and the failure of some nominees to receive Senate confirmation. During this period, various issues arose over the proper criteria in evaluating judicial nominees, appropriateness and constitutionality of judicial filibusters (and proposals to amend Senate rules to preclude judicial filibusters), the role that home-state Senators played in the selection of nominees for lower court judgeships, and extent to which the Senate customarily fills judicial vacancies during the last two years of a President's tenure or deliberately leaves some vacancies for the next President to fill. 

The opportunity for President Barack Obama to make his first appointment to the Supreme Court came early in his presidency. On May 1, 2009, Associate Justice David H. Souter notified the President he would retire from the Court when it recessed for the summer. On May 26, 2009, President Obama announced his intention to nominate Judge Sonia Sotomayor of the U.S. Circuit Court of Appeals for the Second Circuit to replace Justice Souter. In public remarks at the White House, with Judge Sotomayor at his side, the President noted that, before selecting his nominee, he had "sought the advice of members of Congress on both sides of the aisle, including every member of the Senate Judiciary Committee." After four days of hearings and a near party-line vote by the Senate Judiciary Committee to report the nomination favorably, the Senate voted 68- 31 to confirm the nomination of Sonia Sotomayor to be an Associate Justice of the Supreme Court of the United States on August 6, 2009. (Nine Republicans joined 57 Democrats and 2 independents in voting for confirmation.) 

A second opportunity for President Obama to make a Court appointment came less than a year later. On April 9, 2010, Associate Justice John Paul Stevens wrote to the President that he would retire from the Court when it recessed for the summer. In response, President Obama on May 10, 2010, announced that he had selected Solicitor General Elena Kagan as his nominee to replace Justice Stevens. Subsequently, on June 28, 2010, the Court recessed for the summer, after issuing its final rulings for the 2009-2010 term and bidding farewell to departing Justice Stevens. Coincidentally, also on June 28, the Senate Judiciary Committee began four days of confirmation hearings on the Kagan nomination—with opening statements by committee members and the nominee occurring on the first day, questioning of the nominee by committee members on the second and third days, and statements by public witnesses on the fourth day (July 1).


Date of Report: August 30, 2010
Number of Pages: 8
Order Number: IS40340
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