A Primer on Supreme Court Confirmation Hearings

Confirmation hearings begin on Monday, March 20 for President Donald Trump’s nominee to fill Justice Scalia’s vacancy on the U.S. Supreme Court: Judge Neil Gorsuch. More information about Judge Gorsuch is available here.

I thought it might be useful to provide a brief primer on Supreme Court confirmation hearings.

Background

The procedure for appointing a justice to the U.S. Supreme Court is provided in Article II, Section 2, Clause 2 of the U.S. Constitution, which states that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the supreme court.” The President must first select and nominate an individual before he or she is confirmed by the U.S. Senate.

The Senate has confirmed a total of 124 Supreme Court nominations out of a total of 161 received. Of those who were not confirmed, they were either outright rejected via roll call vote, were withdrawn, postponed, tabled or never voted upon due to significant committee or Senate opposition to the nominee or president.

The Process

(1) Pre-hearing investigations

Although not mentioned in the Constitution, the Senate Judiciary Committee plays a key role in Supreme Court confirmation hearings. The Judiciary Committee takes on the primary responsibility of investigating the background and qualifications of each Supreme Court nominee.

During this stage, the nominee responds to a detailed questionnaire, providing professional, biographical, and financial information to the committee. Note: The FBI also investigates the nominee and provides the committee with confidential reports related to its investigations.

The nominee also visits with members of the judiciary committee and other senators during what are called “courtesy calls.”

(2) Public hearings

During this stage, a nominee testifies in hearings before the committee.

Judiciary Committee members and their staffs closely study the public record and investigative information about the nominee before the hearings begin. The nominee also intensively prepares. The President’s staff assists the nominee by providing legal background materials and by conducting mock hearings. These sessions have come to be known as “murder boards” because of how grueling the sessions are on the nominee.

A confirmation hearing begins with a statement by the chair of the Judiciary Committee, and is followed by opening statements by other committee members. A panel of “presenters” then introduce the nominee to the committee, and then the nominee has an opportunity to offer an opening statement.

The chair of the committee will begin the questioning, followed by the ranking minority member and then the rest of the committee in descending order of seniority, alternating between members of the majority and minority party. There is a uniform time limit for each senator during each round of questioning. When the first round of questioning is complete, the committee begins a second round, which may be followed by more, if the committee chair permits additional questioning.

Questions tends to focus on legal qualifications, past judicial opinions or other public actions, private backgrounds. Questions may also be aimed at identifying the nominee’s views on social and political issues, the Constitution, and judicial philosophy. In some cases, a nominee may decline to answer a question for fear of appearing to comment on an issue that may later come before the U.S. Supreme Court.

(3) Public Witnesses

After the nominee’s hearing is complete, the committee will also hear testimony from public witnesses. These witnesses typically include the chair of the American Bar Association’s Standing Committee on the Federal Judiciary (who explains the ABA’s rating of a nominee), professional colleagues of the nominee and/or representatives of groups who support or oppose the nominee.

(4) Closed-Door Committee Session

Starting in 1992, the Judiciary Committee started conducting a closed-door session with the nominee in order to help address questions regarding that person’s background brought to the committee through confidential investigations. Then-Senator Joe Biden explained the procedure saying that they would be conducted “in all cases, even when there are no major investigative issues to be resolved so that the holding of such hearing cannot be taken to demonstrate that the committee has received adverse confidential information about the nomination.”

(5) Committee decision on what recommendation to make to the full senate

Usually within a week upon completion of the hearings, the Judiciary Committee meets in open session to determine what recommendation to report to the full Senate.

The committee may: (1) report favorably on the nomination; (2) report on it negatively; or (3) make no recommendation. In all three cases, the nomination will go forward.

After the Judiciary Committee has reported a nomination, it is placed on the “Executive Calendar” and assigned a calendar number. Business of the “Executive Calendar” is considered in executive session, which is open to the public.

(6) Bringing the Nomination to the Floor

Consideration of a nomination is scheduled by the majority leader (Senator Mitch McConnell), who typically consults with the minority leader (Senator Chuck Schumer) and all interested Senators. The chart below explains the contemporary practice for bringing a Supreme Court nomination to the floor.

Screen Shot 2017-03-19 at 6.18.39 PM

Once the Senate debate begins, it is typical for those Senators who choose to take the floor to state his or her reasons for voting in favor or against a nominee’s confirmation.

Filibusters and Motions to End Debate

Senate rules place no limits on how long floor consideration of a nomination may last. This allows for the possibility of a filibuster by the nominee’s opponents. Supporters may seek to limit debate by invoking cloture, which limits further consideration of the matter to 30 hours. Cloture requires 60 votes. Cloture ensures that a nominee will receive a vote and be decided on by a voting majority.

(7) The Vote

When floor debate on a nomination concludes, the presiding officer puts the following question to a vote: “Will the Senate advise and consent to the nomination of [nominee’s name] of [state of residence] to be an Associate Justice [or Chief Justice] on the Supreme Court?”

A roll-call vote to confirm requires a simple majority of Senators present and voting. Since 1967, every Senate vote on whether to confirm a Supreme Court nomination has been by roll call. Prior to 1967, fewer than half were by roll call, the rest were done by voice vote.

Screen Shot 2017-03-19 at 6.29.07 PMScreen Shot 2017-03-19 at 6.29.34 PM

Sources:

(1) https://fas.org/sgp/crs/misc/R44234.pdf

(2) https://fas.org/sgp/crs/misc/R44236.pdf

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