Process to fill the vacated seat of Justice Ruth Bader Ginsburg

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SCOTUS Vacancy, 2020
AmyConeyBarrett.jpg
Nominee
Amy Coney Barrett
Former Justice
Ruth Bader Ginsburg
Coverage

Process to fill the seat
Confirmation hearings

See also
Supreme Court vacancy, 2018
Supreme Court vacancy, 2017
Supreme Court of the United States

On September 18, 2020, Supreme Court Justice Ruth Bader Ginsburg died, opening a vacancy on the court. Ginsburg was nominated to the court by President Bill Clinton (D) in 1993 to fill the vacancy opened by the retirement of Byron White. At the time of her death, she was one of four members of the court appointed by a Democratic president, alongside fellow Clinton nominee Stephen Breyer and Obama nominees Elena Kagan and Sonia Sotomayor. Her death will allow President Donald Trump (R) to make his third nomination to the court.


Among Ginsburg's noteworthy opinions were her 1996 opinion in United States v. Virginia, which opened the Virginia Military Academy to female cadets, her 2007 dissent in Ledbetter v. Goodyear Tire and Rubber Company, in which she argued that a Goodyear employee was entitled to back pay going back further than 180 days from her complaint, and her 2014 dissent in Burwell v. Hobby Lobby, in which she argued in favor of requiring the Hobby Lobby corporation to provide access to contraceptives as part of its employee healthcare plans.

Process to fill the seat

Although the rules for appointing and confirming a U.S. Supreme Court justice are set out in the U.S. Constitution, the process for choosing nominees is not codified in law. Past presidents have received lists of recommendations from the White House counsel, the attorney general and lawyers in the Justice Department's Office of Legal Counsel. Justices have often been friends or acquaintances who shared ideological views with the president.[1]

The nominating process is also influenced by individuals and organizations outside of the administration. The American Bar Association (ABA), through its 15-member Committee on Federal Judiciary, rates nominees as "well qualified," "qualified" or "not qualified." Others also lobby the president to choose nominees sympathetic to their views or to oppose those with whom they differ.[2]

Some presidents have required that a nominee hold a specific position on a key issue in order to be considered for nomination, sometimes referred to as a litmus test. Such a test is typically on an important social issue. But a nominee's views do not always conform to their future opinions. Some justices have ruled in ways that surprised the presidents who nominated them. Notable examples are Justice Tom C. Clark (nominated by President Harry S. Truman), Chief Justice Earl Warren (nominated by President Dwight D. Eisenhower) and Justice David Souter (nominated by President George H. W. Bush).[3]

Supreme Court confirmation

  • The usual nomination process starts with the president choosing a nominee. It is not uncommon for the president to consult Senate leadership and the leaders of the Senate Judiciary Committee before deciding on a nominee.[4][5]
  • The Senate Judiciary Committee then considers the nominee. The committee conducts a rigorous investigation into the nominee’s background, gleaning a sense of his or her judicial philosophy and temperament, which helps inform whether the senator will support the nominee. During this part of the process, the American Bar Association's Standing Committee on Federal Judiciary reviews the nominee. The nominee also visits with senators in their offices in order to help win support for nomination. The most public aspect of the process is when the nominee testifies before the Judiciary Committee and takes questions. The hearing, which is kept open at the discretion of the chairman, can last more than a day, as members, particularly opponents, verbally spar with the nominee. Having the nominee appear before the committee became a part of the process beginning with the nomination of John M. Harlan in 1955. The first televised Supreme Court nomination hearing took place in 1981 for Sandra Day O’Connor.[4][5]
  • Typically, a week after the hearing is adjourned, the Senate Judiciary Committee holds a vote on the nominee. The committee’s practice has been to send the nomination, whether or not the nominee wins a majority, to the full Senate to allow the chamber to decide whether he or she should be confirmed.[4][5]
  • The debate in the Senate is scheduled by the Senate majority leader in consultation with the minority leader. On April 6, 2017, during the process of confirming Justice Neil Gorsuch to the Supreme Court, the Senate lowered the threshold to close debate on Supreme Court nominations to a simple majority from 60 votes. According to the Congressional Research Service, "The practical effect of the Senate action on April 6 was to reduce the level of Senate support necessary to confirm a Supreme Court nominee."[4][6]
  • The president also may choose to make a recess appointment, which would avoid the need for Senate confirmation. But the justice's term would end with the end of the next session of Congress, rather than the lifetime appointments provided by Senate confirmation. There have been 12 recess appointments made to the Supreme Court, most in the 19th century, according to the Congressional Research Service. The most recent was made by President Dwight D. Eisenhower, who gave Justice Potter Stewart a recess appointment on October 14, 1958, to a seat vacated by Justice Harold Burton. Justice Stewart was nominated by Eisenhower to the same seat on January 17, 1959, and was confirmed by the U.S. Senate on May 5, 1959.[4][5][7]

Historic context

Vacancies: departure date to swearing-in of successor

The average vacancy length on the Supreme Court since 1962—when defined as the length of time elapsed between a Justice’s departure date and the swearing-in of their successor into the position—is 88 days. Four of these vacancies lasted for only a few hours each; the successor was sworn in the same day the retiring Justice officially left office. The longest vacancy under this definition was 422 days, following the death of Justice Antonin Scalia.

The second longest vacancy in that time was 391 days after Justice Abe Fortas retired on May 14, 1969, in the wake of a series of ethics scandals.[8] First-term president Richard Nixon (R) nominated two different successors for Fortas—Clement Haynsworth, a Fourth Circuit Appeals Judge, and Harold Carswell, a Fifth Circuit Appeals Judge. The Senate rejected both. Nixon’s third nominee, Eighth Circuit Appeals Judge Harry Blackmun, was confirmed on May 12, 1970, and sworn in on June 9, 1970—391 days, after Fortas’ retirement.[9]

The third longest vacancy in this time frame was between the terms of Lewis Franklin Powell and Anthony Kennedy. Powell retired on June 26, 1987. The Senate confirmed Kennedy on February 3, 1988. He was sworn in on February 18, 1988, making for a 237 day vacancy from Powell's retirement to Kennedy's swearing-in. Like Blackmun, Kennedy’s confirmation by the Senate followed two rejections. President Ronald Reagan (R) nominated him on November 30, 1987.[10]

Vacancies: departure date to confirmation of successor

When vacancy is defined as the length of time between a Justice’s departure date and the confirmation date of their successor, the average is 77 days. The vacancies between Scalia and Gorsuch and Fortas and Blackmun are still the longest, at 419 and 363 days, respectively. The third longest is between Lewis Powell and Anthony Kennedy, at 222 days.

Vacancies: announcement of retirement to confirmation of successor

When vacancy is defined as the length of time between the date at which a Justice announced his or her retirement and the confirmation date of their successor, the average length is 136 days. The longest vacancy is, again, between the terms of Scalia and Gorsuch at 419 days, followed by Fortas and Blackmun at 363 days. But the third longest, under this definition, is between the terms of Earl Warren and Warren Burger, at 361 days. Warren announced his retirement on June 13, 1968, almost a year before he officially left the bench on June 23, 1969.

In cases where a Justice died and no retirement announcement took place, we used their departure date. On several occasions, Justices officially retired on the same day as their announcement.

Vacancies prior to 1962

Prior to the 1960’s, there were two much longer vacancies on the Court. A seat sat vacant for almost two-and-a-half years during the presidencies of John Tyler and James K. Polk in the mid-19th century. Justice Henry Baldwin died in office on April 21, 1844. His eventual successor, Robert Grier, was confirmed by the Senate and sworn into office on the same day, August 10, 1846. In the interim, the Senate rejected four nominees. Another lengthy vacancy took place following the death of Justice Peter Daniel on May 31, 1860. Daniel’s seat was left unoccupied until President Abraham Lincoln’s (R) nominee, Samuel Miller, was confirmed and sworn in on July 21, 1862.[11]


See also

Footnotes

  1. ↑ NBC News, "A guide to the Supreme Court nomination," accessed February 13, 2016
  2. ↑ CQ Press, "The Selection and Confirmation of Justices: Criteria and Process," accessed February 13, 2016
  3. ↑ New York Times, "Presidents, Picking Justices, Can Have Backfires," July 5, 2005
  4. ↑ 4.0 4.1 4.2 4.3 4.4 CRS Report for Congress, "Supreme Court Appointment Process: Roles of the President, Judiciary Committee, and Senate," July 6, 2005
  5. ↑ 5.0 5.1 5.2 5.3 CRS Report, "Senate Consideration of Presidential Nominations: Committee and Floor Procedure," March 9, 2015
  6. ↑ Congressional Research Service, "Senate Proceedings Establishing Majority Cloture for Supreme Court Nominations: In Brief," April 14, 2017
  7. ↑ Federal Judicial Center, "Biographical directory of federal judges," accessed January 26, 2017
  8. ↑ New York Times, "He could never have enough," July 31, 1988
  9. ↑ Politico, "Republicans, Beware the Abe Fortas Precedent," February 15, 2016
  10. ↑ ScotusBlog.com, "Supreme Court vacancies in presidential election years," February 13, 2016
  11. ↑ C.Q. Press (2010). American Political Leaders: 1789 - 2009, Washington, DC: C.Q. Press
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