How are the executive and legislative branches involved in selecting Supreme Court justices

Article III of the Constitution provides that there shall be one Supreme Court and such inferior courts as Congress may "ordain and establish." The Judiciary Act of 1789 formally established the Supreme Court and federal court system (uscourts.gov). The Senate Judiciary Committee, established in 1816, considers topics ranging from criminal justice to antitrust and intellectual property law, as well provides advice and consent for judicial nominations. The committee typically conducts confirmation hearings for nominees to the Supreme Court, courts of appeals (circuit courts), and district courts. These judicial officers, known as Article III judges, are appointed for a life term.

The Supreme Court serves as the highest court in the nation. When decisions are made by lower, or more local, courts, the people involved in those cases can choose to appeal the decision to the Supreme Court, which has final say. 

The appeals process means that the Supreme Court is the last resort for those looking for justice under the law. The Court is intended to protect our civil rights and liberties by striking down laws that violate the Constitution. 

While cases in lower courts usually attempt to answer whether the law has been followed, Supreme Court cases often decide whether a law is allowed under our Constitution. In this way, the Supreme Court acts as a check on the powers of the legislative and executive branches. It also ensures that majorities in our population cannot pass laws that violate the rights of minorities.

The U.S. Supreme Court was designed to be apolitical. The Court has power neither over the sword (military) nor the purse (the budget). Its authority relies on the trust of the people and it is meant to be above politics. It is designed to correct the populace when we go astray and stop our society from ever violating our laws and Constitution.

U.S. Supreme Court Justice Seats

In its history, the court has had as few as five seats and as many as ten. There are currently nine seats on the U.S. Supreme Court – one Chief Justice and eight Associate Justices. With the retirement of Justice Stephen Breyer, there is an open seat for an Associate Justice.

Like all federal judges, Supreme Court Justices are appointed by the President and confirmed by the Senate. U.S. Supreme Court Justices are appointed for life.

Nomination and Confirmation Process of a U.S. Supreme Court Justice

The U.S. Constitution (Article 2, Section 2, Clause 2) states that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint…Judges of the Supreme Court.” So, what does that process actually look like?

1. The President nominates a candidate to the Supreme Court.

2. The nomination is sent to the Senate Judiciary Committee for consideration.

3. The Committee collects records about the nominee from the FBI and other sources to prepare for the hearing. This process usually takes about a month.

4. The Senate Judiciary Committee then holds a hearing on the nominee, during which witnesses, supporting and opposing, present their views, and Senators question the nominee on their qualifications, judgements, and philosophy.

5. The Judiciary Committee votes on the nomination, sending its recommendation to the full Senate. This recommendation will either be that the nominee should be confirmed or rejected. Alternatively, no recommendation may be given.

6. The full Senate debates the nomination. Debate can be blocked or halted by a vote of 51 (of 100) Senators. This is commonly known as “the nuclear option.”

7. The full Senate votes on the nomination once debate has ended or has been stopped. A simple majority of Senators present and voting is required for a confirmation. If there is a tie, the Vice President casts the deciding vote.

Duration of a Nomination and Confirmation Process

Since 1975, the average number of days from nomination to a final vote in the Senate is around 68.2 days, according to the Congressional Research Service. This time allows for proper vetting, research, debate, and consideration.

The Power of the President

The last ten Presidents have, on average, each nominated three Supreme Court Justices. Justices are appointed for life, and with nine seats on the Court, the next President will have enormous power over the future of the Court for decades to come.

Legendary Justice Oliver Wendell Holmes once said that a Supreme Court Justice should be a "combination of Justinian, Jesus Christ, and John Marshall."

Why are venerable former justices sources of guidance in understanding necessary qualities for federal judges?

The Constitution is silent on judicial qualifications. It meticulously outlines qualifications for the House of Representatives, the Senate, and the presidency, but it does not give any advice for judicial appointments other than stating that justices should exhibit "good behavior." As a result, selections are governed primarily by tradition.

The Nomination Process

The Constitution provides broad parameters for the judicial nomination process. It gives the responsibility for nominating federal judges and justices to the president. It also requires nominations to be confirmed by the Senate. First, look at the numbers.

More than 600 judges sit on district courts, almost 200 judges sit on courts of appeals, and 9 justices make up the Supreme Court. Because all federal judges have life terms, no single president will make all of these appointments.

But many vacancies do occur during a president's term of office. Appointing judges, then, could be a full-time job. A president relies on many sources to recommend appropriate nominees for judicial posts.

Recommendations often come from the Department of Justice, the Federal Bureau of Investigation, members of Congress, sitting judges and justices, and the American Bar Association. Some judicial hopefuls even nominate themselves.

A special, very powerful tradition for recommending district judges is called senatorial courtesy. According to this practice, the senators from the state in which the vacancy occurs actually make the decision. A senator of the same political party as the President sends a nomination to the president, who almost always follows the recommendation. To ignore it would be a great affront to the senator, as well as an invitation for conflict between the president and the Senate.

Selection Criteria

Presidents must consider many factors in making their choices for federal judgeships:

• Experience — Most nominees have had substantial judicial or governmental experience, either on the state or federal level. Many have law degrees or some other form of higher education.
• Political ideology — Presidents usually appoint judges who seem to have a similar political ideology to their own. In other words, a president with a liberal ideology will usually appoint liberals to the courts. Likewise, conservative presidents tend to appoint conservatives.
• Party and personal loyalties — A remarkably high percentage of a resident's appointees belong to the president's political party. Although political favoritism is less common today than it was a few decades ago, presidents still appoint friends and loyal supporters to federal judgeships.
• Ethnicity and gender — Until relatively recently, almost all federal judges were white males. Today, however, ethnicity and gender are important criteria for appointing judges. In 1967, Lyndon Johnson appointed the first African American Supreme Court justice, Thurgood Marshall. In 1981, Ronald Reagan appointed the first woman to the Supreme Court, Sandra Day O'Connor. All recent presidents have appointed African Americans, Latinos, members of other ethnic minority groups, and women to district courts and courts of appeal.

Because federal judges and Supreme Court justices serve for life, a president's nomination decisions are in many ways his or her most important legacy. Many of these appointments will serve long after a president's term of office ends. Whether or not the results are a "combination of Justinian, Jesus Christ, and John Marshall," these choices can have an impact on generations to come.

What two branches are involved in selecting Supreme Court Justices?

How are the president and Congress involved with the selection of Supreme Court Justices?

How can the Executive and legislative branches get around Supreme Court rulings?

How can the legislative branch check the power of the president and the Supreme Court?