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Process to fill the vacated seat of Justice Stephen Breyer

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Supreme Court vacancy, 2022
Ketanjijackson2.jpeg
Nominee
Ketanji Brown Jackson
Former Justice
Stephen Breyer
Coverage
Supreme Court vacancy, 2022
Ketanji Brown Jackson confirmation hearings
Process to fill the vacated seat of Justice Stephen Breyer
Resignation of Stephen Breyer from the U.S. Supreme Court
Past vacancies:

Ketanji Brown Jackson was sworn in to serve on the United States Supreme Court on June 30, 2022, the same day Stephen Breyer retired from the court.[1][2] Breyer first announced he would retire on January 27.[3][4]

On February 25, 2022, President Joe Biden (D) announced he would nominate Jackson to fill Breyer's vacancy.[5] Jackson was confirmed by the Senate in a 53-47 vote on April 7, 2022.[6]

This page provides an overview of the Supreme Court nomination process and historical context for past confirmation votes and vacancy lengths. To read more about Jackson's Senate confirmation process, click here.

Article II, Section 2 of the U.S. Constitution gives the President of the United States the authority to nominate Supreme Court justices, and they are appointed with the advice and consent of the Senate.

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—is 86 days. Four of these vacancies lasted for only a few hours each, with the successor being 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.

Confirmation overview

The table below shows an overview of Jackson's Supreme Court confirmation process.

Overview of confirmation process for Ketanji Brown Jackson
Nominee Announced Nominated Senate Judiciary Committee hearings Senate Judiciary Committee vote Senate vote on motion to discharge[7] Senate vote Swearing-in
Ketanji Brown Jackson February 25, 2022 February 28, 2022 March 21-24, 2022 No recommendation (11-11)
April 4, 2022		 Approved (53-47)
April 4, 2022		 Approved (53-47)
April 7, 2022		 June 30, 2022


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.[8]

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.[9]

Presidents have occasionally had a key position that a prospective justice must hold to be considered for nomination. Such positions are 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).[10]

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.[11][12]
  • 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.[11][12]
  • The Senate Judiciary Committee holds a vote on the nominee, typically a week after the hearing is adjourned. 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.[11][12]
  • The debate in the Senate is scheduled by the Senate majority leader in consultation with the minority leader, and a confirmation vote is held. 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."[11][13]
  • 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.[11][12][14]


Historic context

Confirmation votes

The table and chart below show total yes votes for nominees confirmed to the United States Supreme Court since 1962.[15][16] Byron White, Arthur Goldberg, and Abe Fortas are excluded from the chart since they were confirmed by voice vote.

HIGHLIGHTS
  • Amy Coney Barrett was the only nominee to be confirmed with yes votes from only one party.
  • Among those nominated by Democratic presidents, Ruth Bader Ginsburg received the highest number of Republican yes votes (41).
  • Among those nominated by Republican presidents, John Paul Stevens received the highest number of Democratic yes votes (59).
  • Sandra Day O'Connor received the highest total number of yes votes (99).

    • United States Supreme Court confirmation votes, 1962-2020
    Nominee President Total yes votes Democratic yes votes Republican yes votes Independent and minor party yes votes
    Amy Coney Barrett Republican PartyDonald Trump (R) 52 0 52 0
    Brett Kavanaugh Republican PartyDonald Trump (R) 50 1 49 0
    Neil Gorsuch Republican PartyDonald Trump (R) 54 3 51 0
    Elena Kagan Democratic PartyBarack Obama (D) 63 56 5 2[17]
    Sonia Sotomayor Democratic PartyBarack Obama (D) 68 57 9 2[18]
    Samuel Alito Republican PartyGeorge W. Bush (R) 58 4 54 0
    John Roberts Republican PartyGeorge W. Bush (R) 78 22 55 1[19]
    Stephen Breyer Democratic PartyBill Clinton (D) 87 54 33 0
    Ruth Bader Ginsburg Democratic PartyBill Clinton (D) 96 55 41 0
    Clarence Thomas Republican PartyGeorge H.W. Bush (R) 52 11 41 0
    David H. Souter Republican PartyGeorge H.W. Bush (R) 90 46 44 0
    Anthony Kennedy Republican PartyRonald Reagan (R) 97 51 46 0
    Antonin Scalia Republican PartyRonald Reagan (R) 98 47 51 0
    Sandra Day O'Connor Republican PartyRonald Reagan (R) 99 45 53 1[20]
    John Paul Stevens Republican PartyGerald Ford (R) 98 59 37 2[21]
    William H. Rehnquist Republican PartyRichard Nixon (R) 68 29 37 2[22]
    Lewis Powell Republican PartyRichard Nixon (R) 89 49 38 2[23]
    Harry Blackmun Republican PartyRichard Nixon (R) 94 54 40 0
    Warren Burger Republican PartyRichard Nixon (R) 74 38 36 0
    Thurgood Marshall Democratic PartyLyndon Johnson (D) 69 37 32 0
    Abe Fortas Democratic PartyLyndon Johnson (D) Confirmed by voice vote N/A N/A N/A
    Arthur Goldberg Democratic PartyJohn Kennedy (D) Confirmed by voice vote N/A N/A N/A
    Byron White Democratic PartyJohn Kennedy (D) Confirmed by voice vote N/A N/A N/A

    Prior judicial experience

    The table and chart below show justices' judicial experience in years before being nominated to the Supreme Court. This data was originally compiled by Stephen Vladeck, professor of law at the University of Texas School of Law.[24][25]

    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 86 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.[26] 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.[27]

    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.[28]

    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 76 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 132 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.[29]



    See also

    Footnotes

    1. ↑ The Hill, "Justice Breyer set to retire from Supreme Court on Thursday," June 29, 2022
    2. ↑ The Washington Post, "Jackson to take Supreme Court oath Thurs., minutes after Breyer retires," June 29, 2022
    3. ↑ United States Supreme Court, "Letter to President," January 27, 2022
    4. ↑ YouTube, "President Biden Delivers Remarks on the Retirement of Supreme Court Justice Stephen Breyer," January 27, 2022
    5. ↑ White House, "President Biden Nominates Judge Ketanji Brown Jackson to Serve as Associate Justice of the U.S. Supreme Court," February 25, 2022
    6. ↑ Congress.gov, "PN1783 — Ketanji Brown Jackson — Supreme Court of the United States," accessed April 7, 2022
    7. ↑ Since Jackson received a tied vote in committee, the full Senate voted on whether to advance her nomination to a confirmation vote.
    8. ↑ NBC News, "A guide to the Supreme Court nomination," accessed February 13, 2016
    9. ↑ CQ Press, "The Selection and Confirmation of Justices: Criteria and Process," accessed February 13, 2016
    10. ↑ New York Times, "Presidents, Picking Justices, Can Have Backfires," July 5, 2005
    11. ↑ 11.0 11.1 11.2 11.3 11.4 CRS Report for Congress, "Supreme Court Appointment Process: Roles of the President, Judiciary Committee, and Senate," July 6, 2005
    12. ↑ 12.0 12.1 12.2 12.3 CRS Report, "Senate Consideration of Presidential Nominations: Committee and Floor Procedure," March 9, 2015
    13. ↑ [https://fas.org/sgp/crs/misc/R44819.pdf Congressional Research Service, "Senate Proceedings Establishing Majority Cloture for Supreme Court Nominations: In Brief," April 14, 2017]
    14. ↑ Federal Judicial Center, "Biographical directory of federal judges," accessed January 26, 2017
    15. ↑ United States Senate, "Supreme Court Nominations (1789-Present)," accessed February 1, 2022
    16. ↑ GovTrack, "Voting Records," accessed February 1, 2022
    17. ↑ Two Independent yes votes.
    18. ↑ Two Independent yes votes.
    19. ↑ One Independent yes vote.
    20. ↑ One Independent yes vote.
    21. ↑ One Independent yes vote and one Conservative yes vote.
    22. ↑ One Independent yes vote and one Conservative yes vote.
    23. ↑ One Independent yes vote and one Conservative yes vote.
    24. ↑ Twitter, "Stephen Vladeck on February 24, 2022," accessed March 9, 2022
    25. ↑ Ellen Morrissey, "Email correspondence with Stephen Vladeck," March 7, 2022
    26. ↑ New York Times, "He could never have enough," July 31, 1988
    27. ↑ Politico, "Republicans, Beware the Abe Fortas Precedent," February 15, 2016
    28. ↑ ScotusBlog.com, "Supreme Court vacancies in presidential election years," February 13, 2016
    29. ↑ C.Q. Press (2010). American Political Leaders: 1789 - 2009, Washington, DC: C.Q. Press
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