How U.S. Supreme Court Justices Are Confirmed

(Bloomberg) -- The U.S. Constitution establishes just one requirement for the job of Supreme Court justice: “good Behaviour.” It specifies that members of the country’s top judicial body are nominated by the president and confirmed by the Senate. The details were left to lawmakers to work out -- or fight over, as they have pointedly in recent years as conservatives and liberals have battled for dominance in the court. That fight is coming to a head as President Donald Trump tries to fill a third seat on the nine-member high court before voters decide on his bid for a second term.

1. What’s the issue?

Justice Ruth Bader Ginsburg, a fixture on the Supreme Court’s liberal wing, died on Sept. 18. Trump, a Republican, wasted no time in nominating Amy Coney Barrett, a federal appellate judge, to fill the seat, a move that would likely make the court more conservative for decades to come. The question is whether Trump’s Republican allies in the Senate can, and should, confirm Barrett before the Nov. 3 election. A 2017 Senate rule change gives them a shot at doing it. Democrats argue precedent should rule out a pre-election appointment.

2. What rule was changed?

Under a longstanding tradition, three-fifths of the Senate, or 60 of 100 members, had to agree to end debate over a Supreme Court nominee and proceed to a final vote. No party has held that many seats during a Supreme Court confirmation in four decades, so the rule assured at least some bipartisan support for candidates. In 2017, Senate Democrats, then in the minority (as they are now), blocked a vote to approve Trump’s first nominee, Neil Gorsuch. In response, Senate Majority Leader Mitch McConnell invoked the “nuclear option” and called for a simple majority vote, which passed, allowing Gorsuch to be confirmed and lowering the threshold for future high court picks. The move facilitated the confirmation of Trump’s second appointee, Brett Kavanaugh, and would ease a vote on Barrett as well.

3. Why do Democrats say precedent should prevent that?

In February 2016, President Barack Obama, a Democrat in his last year as president, had an opportunity to make a third Supreme Court nomination when conservative Justice Antonin Scalia died. But after Obama nominated Merrick Garland the next month to fill the seat, Republican senators used their majority to block confirmation hearings, arguing that no new justice should be confirmed during a presidential election year. Democrats say that Republicans should be bound by their own logic in this election year.

4. Do any Republican senators agree?

Yes. Senators Susan Collins of Maine and Lisa Murkowski of Alaska have said they don’t support confirming a nominee this close to the election. Assuming Democrats remain united in their opposition, two more Republican defectors are needed in order to block debate on a pre-election confirmation. Complicating matters, three Republican senators have tested positive for the coronavirus and others may have been exposed as well, raising questions about whether any of them might not be able to be present on the Senate floor for an eventual vote.

5. Is there time to confirm Barrett before Nov. 3?

The Senate would need to move faster than usual. The confirmation process typically involves one-on-one meetings between the nominee and individual senators over many weeks. The Senate Judiciary Committee requires the nominee to complete a lengthy background questionnaire and usually conducts a week of hearings followed by a vote two weeks later in the full Senate. The average time from nomination to Senate vote was 69.6 days for the 15 candidates prior to Kavanaugh, according to a 2018 report from the Congressional Research Service. Judiciary Chairman Lindsey Graham, a South Carolina Republican, has scheduled hearings to begin on Oct. 12 and wants a committee vote on Oct. 22. Here, too, the coronavirus may present a problem. Two of the Republican senators who have tested positive -- Mike Lee of Utah and Thom Tillis of North Carolina -- serve on the committee. All 12 of the Republican members will need to be in the room on the day of the committee for Graham to have the quorom he needs, assuming that Democrats boycott.

6. What about after the election?

Should Republicans lose their Senate majority, they would still run things during a so-called lame-duck session until Jan. 3. But their margin for error might be even thinner. That’s because one Republican senator, Martha McSally, could be forced to vacate her seat soon after the Nov. 3 election, should she lose. The reason for that is that she and her Democratic opponent, Mark Kelly, are vying to fill the unexpired term of the late John McCain.

The Reference Shelf

• A Congressional Research Service report on related Senate rules.
• The Supreme Court of the United States’s website details its current members, their circuit assignments, audio recordings of oral arguments and information on how to visit the court.
• Martin-Quinn Scores measure the relative locations of the Supreme Court justices on an ideological continuum.
• A Journal of Politics paper: “Predicting Drift on Politically Insulated Institutions: A Study of Ideological Drift on the United States Supreme Court.”

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