Denis Steven Rutkus
Specialist on the Federal Judiciary
The appointment of a Supreme Court Justice is an event of major significance in American
politics. Each appointment is of consequence because of the enormous judicial power the
Supreme Court exercises as the highest appellate court in the federal judiciary. Appointments are
usually infrequent, as a vacancy on the nine-member Court may occur only once or twice, or
never at all, during a particular President's years in office. Under the Constitution, Justices on the
Supreme Court receive lifetime appointments. Such job security in the government has been
conferred solely on judges and, by constitutional design, helps insure the Court's independence
from the President and Congress.
The procedure for appointing a Justice is provided for by the Constitution in only a few words.
The "Appointments Clause" (Article II, Section 2, clause 2) states that the President "shall
nominate, and by and with the Advice and Consent of the Senate, shall appoint ... Judges of the
supreme Court." The process of appointing Justices has undergone changes over two centuries,
but its most basic feature—the sharing of power between the President and Senate—has remained
unchanged: To receive lifetime appointment to the Court, a candidate must first be nominated by
the President and then confirmed by the Senate. Although not mentioned in the Constitution, an
important role is played midway in the process (after the President selects, but before the Senate
considers) by the Senate Judiciary Committee.
On rare occasions, Presidents also have made Court appointments without the Senate's consent,
when the Senate was in recess. Such "recess appointments," however, were temporary, with their
terms expiring at the end of the Senate's next session. The last recess appointments to the Court,
made in the 1950s, were controversial because they bypassed the Senate and its "advice and
consent" role.
The appointment of a Justice might or might not proceed smoothly. From the first appointments
in 1789 through its consideration of nominee Elena Kagan in 2010, the Senate confirmed 124 out
of 160 Court nominations. Of the 36 unsuccessful nominations, 11 were rejected in Senate rollcall
votes, while nearly all of the rest, in the face of committee or Senate opposition to the
nominee or the President, were withdrawn by the President or were postponed, tabled, or never
voted on by the Senate. (Six individuals, however, whose initial Supreme Court nominations were
not confirmed, were later re-nominated and confirmed.)
Over more than two centuries, a recurring theme in the Supreme Court appointment process has
been the assumed need for excellence in a nominee. However, politics also has played an
important role in Supreme Court appointments. The political nature of the appointment process
becomes especially apparent when a President submits a nominee with controversial views, there
are sharp partisan or ideological differences between the President and the Senate, or the outcome
of important constitutional issues before the Court is seen to be at stake.
For a listing of all nominations to the Court and their outcomes, see CRS Report RL33225,
Supreme Court Nominations, 1789 - 2010: Actions by the Senate, the Judiciary Committee, and
the President, by Denis Steven Rutkus and Maureen Bearden.
Date of Report: September 3, 2010
Number of Pages: 64
Order Number: RL31989
Price: $29.95
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