How Do Supreme Court Nominations Work?

Josephine (Jo) Bahn
The president of the United States nominates someone for a vacancy on the Supreme Court, and then the US Senate votes to confirm the nominee.

The president of the United States nominates someone for a vacancy on the Supreme Court, and then the US Senate votes to confirm the nominee.

Supreme Court of the United States

On September 26, 2020, President Donald J. Trump nominated Judge Amy Coney Barrett to fill Supreme Court Justice Ruth Bader Ginsburg’s recently vacated seat. Her nomination sparked many questions about the US Supreme Court’s nomination and vetting process. 

What happens next?
Since 1952, the American Bar Association Standing Committee on the Federal Judiciary (FJC) has evaluated all nominees’ professional qualifications to the US Supreme Court. The president of the United States nominates someone for a vacancy on the Supreme Court, and then the US Senate votes to confirm the nominee. Still, before they do, groups like the American Bar Association provide an analysis and a recommendation on the nominee’s fitness. There is no set standard under the Constitution regarding the qualifications of a justice. For example, there is no requirement regarding age, education, profession, or native-born citizens. As a result, a potential justice doesn’t need to be a lawyer or law school graduate, although there hasn’t been an appointed justice since James F. Byrne, who has not attended law school. Without a concrete roadmap, the president can nominate anyone to fill a vacancy. Then it is up to the Senate to vet that nominee for fitness on behalf of the American people.

How is the chief justice selected, and how is a chief justice different from an associate justice?

The president appoints, and the Senate confirms the Supreme Court chief justice—just like an associate justice. There is no requirement for a chief justice to have previously served as an associate justice. However, 5 of the 17 chief justices have served as associate justices before becoming chief justice—with Chief Justice William H. Rehnquist being the most recent example.

The chief justice presides over the Supreme Court’s public sessions and its private conferences—where the justices decide what cases to hear and how they plan to vote on cases they have recently heard. If, at that point, the chief justice is in the majority, they select who writes the majority opinion—if they are in the minority, the power to assign the majority opinion shifts to the member of the majority who has the most seniority on the Court. The Supreme Court is often referred to by the name of the chief justice. Under this thinking, we are now in the Roberts Court, which followed the Rehnquist Court.

Have there always been 9?

Currently, nine justices make up the US Supreme Court. That hasn’t always been the case. Like its silence on a nominee's qualifications, the Constitution provides no definitive number of justices. Instead, the Constitution places the power to determine the number of justices in the hands of Congress. In 1789, the first Judiciary Act was passed and set the number of justices at six, one chief justice and five associates. Since then, Congress has passed various acts to change this number, fluctuating from five to ten. The number has remained set at nine justices since the passage of The Judiciary Act of 1869. 

I’ve heard politicians talking about “packing the court.” What’s that, and can they do it?
Congress can add or remove seats from the Supreme Court—the Constitution gives them this power. There has been a buzz around increasing Supreme Court justices from nine to something greater. The last attempt to change the size of the Court occurred in 1937 when then-President Franklin D. Roosevelt introduced what became known as his court-packing plan. The plan ultimately failed, but it was put forth as a way to protect his progressive New Deal legislation. It is unlikely to happen in 2020, simply because it’s still not popular with everyday Americans. 

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Josephine (Jo) Bahn

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Josephine (Jo) Bahn is a senior attorney in enforcement at the Federal Deposit Insurance Corporation. Bahn also serves as the DC Bar’s Under 36 Delegate to the ABA House of Delegates and will chair the ABA Young Lawyers Division in 2022–23.