How Supreme Court Appointments Work

The Nomination Process

Merrick Garland Merrick Garland
U.S. President Barack Obama stands with Merrick B. Garland, his nominee for Supreme Court justice, on March 16, 2016, in Washington, D.C. Garland's nomination was never brought to vote in the Senate by Majority Leader Mitch McConnell. Chip Somodevilla/Getty Images

Once the president nominates someone (usually via 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.

Until the controversial and contested 2018 Kavanaugh hearings, perhaps the most infamous instance of the past coming to light occurred at the confirmation hearings for Clarence Thomas, who was accused of sexual harassment by former colleague Anita Hill.

Thomas was eventually confirmed by the Senate despite the controversy, as was Kavanaugh. The overwhelming majority of Supreme Court nominees are approved by the Senate. There are some conflicting statistics, but the Congressional Research Service (CRS) reports there have been only 36 rejections out of 158 nominees since 2007 [source: Hogue].

Before the 20th century, these hearings were held behind closed doors. In fact, the nomination process was almost completely unseen 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 another to promote a particular candidate. (President Trump's shortlist to replace Justice Kennedy was assembled with the help of both the conservative Federalist Society and Heritage Foundation [source: Wolf].) Also, since 1930 the confirmation hearings have been completely open to the public. They have been televised since 1981 [source: Yalof].

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 also can 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 [source: Aaseng].

And then of course there's the case of Merrick Garland, who President Obama nominated in March 2016 to replace the late Justice Antonin Scalia. Senate Majority Leader Mitch McConnell (R-Ky.) refused to bring a vote to the floor of the Senate to confirm Garland because it was an election year. McConnell said the new president — not Obama — should be the one to decide on the new justice, which experts at the time said was unprecedented. However, McConnell's gamble paid off, and Trump took the Oval Office, eventually appointing conservative Neil Gorsuch to the bench in place of Garland.

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