The Nomination Process

Once the president nominates someone (usually with a personal phone call to that person) and releases the name, the Senate holds hearings. At these hearings, senators interview the nominee regarding his or her record as a judge and lawyer and where he or she stands on key issues. If the nominee has any dark secrets or past indiscretions, they are likely to come out in the Senate hearings, as well. Perhaps the most infamous instance of this took place at the confirmation hearings for Clarence Thomas, who was accused of sexual harassment by former colleague Anita Hill. He was eventually confirmed by the Senate despite the controversy. The overwhelming majority of Supreme Court nominees are approved by the Senate -- there have been only 12 rejections out of 148 nominees.


Collection of the Supreme Court of the United States
The Main Reading Room in the Supreme Court Library

Until the 20th century, these hearings were held behind closed doors. In fact, the nomination process was almost completely invisible to the public. The president might seek the advice of friends and associates, but he made the choice on his own and even contacted and interviewed potential candidates on his own time. Today, members of the White House staff and the Justice Department are all involved in the decision, creating lists of candidates and sometimes competing with one and other to promote a particular candidate. Also, since 1930 the confirmation hearings have been completely open to the public. They have been televised since 1981 (Yalof, pg. 15).

There are several ways that a nominee can fail to become a Supreme Court justice. Seven nominees throughout history have simply declined the nomination. If it appears that there is great opposition to a candidate, the president can withdraw the nomination, or the nominee can withdraw him or herself. The Senate can also reject a nominee. Once rejected, a nominee can be submitted again, but this is a foolish course of action for the president unless something has changed that might lead to a different vote by the Senate. In 1836, Andrew Jackson nominated Roger Taney, but the Senate rejected him. A few months later, Jackson nominated Taney again. In that time, Congressional elections had been held, and the Senate was now more favorable to Jackson. Taney was confirmed (Aaseng, pg. 43).

In the next section, we'll navigate the complicated political landscape that surrounds Supreme Court nominations.

The Induction Ceremony
 Arthur J. Goldberg, who was appointed by John F. Kennedy in 1962, provides an account of the induction ceremony for new Supreme Court justices.

"It is not generally known that a newly appointed justice takes two oaths. The first is the judicial oath (like the Hippocratic oath of doctors) administered by the chief justice in the robing room in the presence of other members of the Court. The second is administered in open court."

Goldberg chose to take both oaths on a Hebrew bible, because he was Jewish, while other justices choose to take the oath on the official court bible (a Christian bible), which has the signatures of previous justices on the fly-leaf (Goldberg signed the court bible "to maintain continuity."). The open court portion of the ceremony was attended by the President and other government officials. However, Chief Justice Earl Warren did not make any special acknowledgement of Kennedy on that occasion, something Goldberg noted: "I noticed from President Kennedy's expression that he was rather nonplussed and somewhat resentful at not being introduced and called upon to say a few words."

After the taking of oaths, Goldberg was seated at his place on the bench, a long, high table at which all nine justices sit, with the Chief Justice at the center. At this point, Goldberg made a discovery that speaks to the great honor someone feels when they take a position in the highest court in the nation.

"I opened the drawer on the Bench adjacent to my chair to obtain some note paper. To my surprise and delight I found an old dog-eared copy of the Constitution bearing the personal signature of that great Yankee from Olympus, Justice Oliver W Holmes, Jr. Needless to say, this finding made a considerable emotional impact on me. To sit on the seat on the Bench once occupied by that great justice was a singular honor. To find a copy of the Constitution inscribed by Justice Holmes was doubly so."

Source: The Supreme Court Historical Society