In the wake of the vacancy on the Supreme Court created by the death of Justice Ruth Bader Ginsburg, it is helpful to review the process by which Supreme Court confirmations take place, to get a sense of what to expect.
Article II, Section 2 of the Constitution gives the president the power to appoint Supreme Court justices “by and with the advice and consent of the Senate.” The Senate processes these and other life-tenured judicial nominations through the Senate Judiciary Committee, which conducts hearings and a vote before the nomination proceeds to the full Senate for consideration.
By modern practice, after the president submits his nomination to the Senate, it is referred to the Judiciary Committee, which sends the nominee a questionnaire seeking a range of biographical, employment, and financial information. Included in the questionnaire are requests for published writings and speeches. If the nominee is a judge, the committee can be expected to review all cases in which the nominee participated. For those who served in other government positions, the committee will typically request their papers from the archives of those offices.
As it does on other nominations, the FBI will conduct a background investigation on the nominee, based on nonpublic interviews and fact-finding. FBI files are subject to strict confidentiality protocols, so only senators and a handful of Judiciary Committee staffers who have top-secret security clearances can view such files. Those staffers or members who flag sensitive matters of concern in the nominee’s background may investigate themselves or request the FBI to conduct a further investigation. Nomination hearings include a closed session with only members and cleared staff present to discuss FBI files. If President Trump nominates a circuit judge that he appointed, that nominee would already have had a recent background investigation for her current seat, drastically diminishing the odds that another such investigation would raise red flags.
This entire process for handling sensitive matters was flouted by Democratic ranking member Sen. Dianne Feinstein during Brett Kavanaugh’s nomination in 2018, when she buried Christine Blasey Ford’s allegation for six weeks before springing it on the committee after the initial hearings had taken place, a desperate last-minute tactic, instead of bringing it to the attention of the chairman and the FBI beforehand.
By regular order, after its review of the committee questionnaire, background investigation, and produced documents, the committee holds a hearing over the course of several days. The hearings provide every senator on the committee an opportunity to ask questions of the nominee. A typical run for recent nomination hearings is four days — three with the nominee present as a witness and an additional day for outside witnesses to testify regarding the nomination. Whatever the timetable, the hearings should conclude within the span of one week. Kavanaugh was an exception after the Democrats’ antics led to the scheduling of an additional hearing.
After the hearing is concluded, members who wish to do so may submit to the nominee written questions for the record. Yet another tactic used by Democrats to try to stymie the Kavanaugh nomination was the submission of an unprecedented 1,278 questions — more than the combined number of such questions to prior Supreme Court nominees in the history of the United States. Nonetheless, with a tight deadline for the submission of questions and a superhuman effort to respond to them, that effort to delay the process failed.
Then the committee schedules a vote on the nomination to occur when it meets for its next business meeting or markup. Senators have the prerogative to hold over a markup agenda item one time, the practical effect of which under committee rules would be the postponement of the vote until the next markup one week later. At that point, following discussion among the senators, the committee would vote on reporting the nomination out to the full Senate. In the vast majority of cases, that vote occurs with a favorable recommendation on the nomination. In the unusual case in which a majority of committee members do not support a nomination, rather than vote against reporting it out entirely, they have opted to vote to report the nomination with an unfavorable recommendation to the Senate (as happened for Robert Bork’s failed nomination) or without any recommendation at all (as happened for Clarence Thomas’s successful nomination).
In the case of the nominee to the current vacancy, expect the nomination to be brought to the floor by Majority Leader Mitch McConnell very soon after it advances from the Judiciary Committee to the full Senate. At that stage, all members of the Senate will have a chance to debate and vote on the nomination. Cloture is a procedure by which senators can place a time limit on consideration of the nomination and force a vote on confirmation. A cloture motion, once filed, receives a vote after two days of Senate session. If a simple majority of senators voting favor cloture, further consideration of the nomination is limited to 30 hours, after which point the confirmation vote would occur. A simple majority also suffices for confirmation.
The Senate should process the next Supreme Court nomination without delay. Doing so would signal that the Senate leadership will not tolerate Democratic shenanigans. Even more critical than the election calendar is the step this will take toward rehabilitating a judicial nomination process that has been broken for too long.
Frank J. Scaturro is vice president and senior counsel of the Judicial Crisis Network and a former counsel for the Constitution to the Senate Judiciary Committee, in which capacity he worked on the nominations of Chief Justice John Roberts and Associate Justice Samuel Alito.
