The Truth Squad for Justice for Justice Sotomayor

The confirmation hearings

The Senate Judiciary Committee is set to vote on Judge Sotomayor's nomination to the Supreme Court on July 28. Read on for more information on the confirmation process in general and how that process has played out in recent Supreme Court history:

Article II section 2 of the Constitution says that the President "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint ... Judges of the Supreme Court..." U.S. Const. art. 2 § 2, cl. 2. 

Since the Supreme Court was established in 1789, presidents have submitted 159 nominations for the Court, including those for chief justice. Of those 159, 122 were confirmed. As detailed below, this confirmation process can be generally broken down into five stages: (1) Nomination; (2) Senate Judiciary Committee Referral and Hearings; (3) Senate Judiciary Committee Meeting; (4) Full Senate Debate; and (5) Senate Vote.

Step One – Nomination

The process begins with the President selecting a nominee and sending a nomination to the Senate.  Often, the President will consult with Senators, including the Chair and ranking member of the Senate Judiciary Committee, before announcing a nomination.

Step Two – Senate Judiciary Committee Referral and Hearings

Once the Senate receives the nomination, it refers the nomination to the Senate Committee on the Judiciary.The Judiciary Committee sends the nominee a questionnaire which requests the nominee’s biographical, financial and employment information, as well as copies of the nominee’s legal writings, opinions issued, testimony and speeches.The Committee usually takes several weeks to collect and receive all necessary records, from the FBI and other sources, about the nominee and for the nominee to be prepared for the hearings. The Judiciary Committee then holds a hearing on the nomination.  The nominee makes an opening statement and then responds to questions from Committee members.  The hearing can take several days and questioning can at times be intense. Notably, the Senate’s practice of questioning nominees is relatively recent, the first being the nomination of Harlan Fiske Stone to the Court in 1925. The modern practice of holding confirmation hearings began with the nomination of John Marshall Harlan II in 1955. During the hearings, witnesses, both supporting and opposing the nomination, present their views. Senators question the nominee on his or her qualifications, judgment, and philosophy. After completion of the hearing, Committee members have one week to submit written follow-up questions, to which the nominee responds in writing.

Step Three – Committee Meeting

The Judiciary Committee convenes to report the nomination to the full Senate.  The Committee can present a favorable recommendation, an unfavorable recommendation or no recommendation at all.  The Committee may also decline to send a recommendation to the Senate.

Step Four – Senate Debate

After receiving the recommendation of the Judiciary Committee, the full Senate holds its own hearings and debates the nomination. The Chair of the Judiciary Committee leads the hearing and the senior Democratic and Republican members of the Judiciary Committee lead their party’s questioning.The Senate hearing and debate typically takes less than a week. The Senate rules allow unlimited debate (a practice known as filibustering). To end the debate, it requires the votes of 3/5 of the Senate or 60 senators (known as the cloture vote).

Step Five – Senate Confirmation or Rejection

When the debate ends, the Senate votes on the nomination. A simple majority of the Senators present and voting is required for the judicial nominee to be confirmed. If there is a tie, the Vice President, who also presides over the Senate, casts the deciding vote. If the Senate confirms the nomination, the nominee will be sworn in, typically by the Chief Justice of the Supreme Court. According to records compiled by the Senate Judiciary Committee, the confirmation process on average takes approximately two and a half months from nomination to confirmation. Notably, from the Truman to the Nixon administration, Justices were ordinarily approved within one month and only recently has the process trended to a longer confirmation process.

Now let’s take a look at how the confirmation process has played out in recent nominations to the Supreme Court:

Chief Justice John Roberts

Nominated on July 19, 2005 by President George W. Bush to fill Chief Justice William H. Rehnquist’s vacant seat after his unexpected death.

Senate Judiciary Committee Confirmation hearings held from September 12 to 15, 2005.

Confirmed by the Senate on September 29, 2005 by a 78-22 vote. 

Chief Justice Roberts was originally chosen to fill Justice O’Connor’s soon-to-be vacant seat, but upon the sudden death of Justice Rehnquist, he was appointed to the seat of Chief Justice. His confirmation was noted as being uneventful as his conservative leanings were not anticipated to shift the Court’s ideological balance.

Associate Justice Samuel Alito

Nominated on November 10, 2005 by George W. Bush to fill Sandra Day O’Connor’s vacant seat.

Senate Judiciary Committee Confirmation hearings held from January 9 to January 13, 2006.

Confirmed by the Senate on January 31, 2006 by a 58-42 vote. 

Justice Alito experienced a somewhat contentious confirmation process because he was expected to change the composition of the Court by replacing Justice O’Connor’s often times swing vote with a conservative one.  Justice Alito’s 58-42 confirmation vote is the second lowest of the current court, with Justice Clarence Thomas having the lowest vote total of 52-48.

Associate Justice Stephen Breyer

Nominated on May 13, 1994 by President Bill Clinton to fill Harry Blackmun’s vacant seat.

Senate Judiciary Committee Confirmation hearings held from July 12 to 15, 1994.

Confirmed by the Senate July 29, 1994, by 87-9 vote. 

Justice Breyer was initially considered to fill Byron White’s seat, which instead went to Justice Ginsberg. Justice Breyer is perhaps best known for his opinions both on and off the bench espousing his legal theory that the judiciary should seek to resolve issues to encourage popular participation in governmental decisions.

Associate Justice Ruth Bader Ginsberg

Nominated on June 14, 1993 by President Bill Clinton to fill Byron White’s vacant seat.

Senate Judiciary Committee Confirmation hearings held from July 20 to 23, 1993.

Confirmed by the Senate August  3, 1993.by a 96-3 vote. 

Before joining the Court, Justice Ginsberg was a pioneer in the effort to expand women’s legal rights.  During the 1970’s she was director of the Women’s Rights Project of the American Civil Liberties Union.  During her tenure at the ACLU, she brought a series of cases before the Court that helped create constitutional protections against sex discrimination.

Associate Justice David Souter

Nominated on July 25, 1990 by President George H. W. Bush to fill William Joseph Brennan’s vacant seat. 

Senate Judiciary Committee Confirmation hearings held from September 13, 14, 17, 18, and 19, 1990.

Confirmed by the Senate on October 2, 1990 by a 90-9 vote. 

Justice Souter’s appointment to the Court was expected to be a “home run” for conservatives, as President Bush’s chief of staff assured.  During his time on the Court, however, Souter gradually shifted from the center to the left side of the bench—a move that disappointed many of his conservative supporters.

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