Supreme Court Appointment Process:
March 8, 2022
President’s Selection of a Nominee
Barry J. McMillion

Supreme Court Appointment Process: President's Selection of a Nominee

Updated January 14, 2026 (R44235) Jump to Main Text of Report

Contents

• Background
• Most Recent Supreme Court Nomination Included in Report
• How Supreme Court Vacancies Occur
• Death of a Sitting Justice
• Retirement or Resignation of a Sitting Justice
• Nomination of a Sitting Justice to Chief Justice Position
• Advice and Consent
• The Role of Senate Advice
• Advice from Other Sources
• Criteria for Selecting a Nominee
• Political Considerations
• Professional Qualifications
• Integrity and Impartiality
• Other Factors
• Background Investigations
• Speed by Which a President Selects a Nominee
• Vacancies That Have Had Multiple Nominations
• The Powell Vacancy
• The O'Connor Vacancy
• The Scalia Vacancy
• Factors Affecting the Speed by Which a Nominee Is Selected
• Advance Notice of Vacancy
• Strong Preference of President
• Sense of Urgency
• When Vacancy Occurs
• Potential Drawbacks of Quickly Selecting a Nominee
• Recess Appointments to the Court
• Senate Resolution 334, 86^th Congress

Figures

• Figure 1. Type of Professional Experience of U.S. Supreme Court Nominees at Time of Nomination
• Figure 2. Number of Days from Vacancy Announcement of Departing Justice to President's Public Announcement Identifying Nominee for Vacancy

Summary

The appointment of a Supreme Court Justice is an event of major significance in American The appointment of a Supreme Court Justice is an event of major significance in American
Analyst in American
politics. Each appointment is of consequence because of the enormous judicial power the politics. Each appointment is of consequence because of the enormous judicial power the
National Government
Supreme Court exercises as the highest appellate court in the federal judiciary. Appointments are Supreme Court exercises as the highest appellate court in the federal judiciary. Appointments are

usually infrequent, as a vacancy on the nine-member Court may occur only once or twice, or usually infrequent, as a vacancy on the nine-member Court may occur only once or twice, or
never at all, during a particular Presidentnever at all, during a particular President’'s years in office. Under the Constitution, Justices on the s years in office. Under the Constitution, Justices on the

Supreme Court receive what can amount to lifetime appointments which, by constitutional Supreme Court receive what can amount to lifetime appointments which, by constitutional
design, helps ensure the Courtdesign, helps ensure the Court’'s independence from the President and Congress.s independence from the President and Congress.
The procedure for appointing a Justice is provided for by the Constitution in The procedure for appointing a Justice is provided for by the Constitution in only a few words. The a few words. The “"Appointments ClauseAppointments Clause”
" (Article II, Section 2, clause 2) states that the President (Article II, Section 2, clause 2) states that the President “"shall nominate, and by and with the Advice and Consent of the shall nominate, and by and with the Advice and Consent of the
Senate, shall appoint ... Judges of the supreme Court.Senate, shall appoint ... Judges of the supreme Court.”" The process of appointing Justices has undergone changes over two The process of appointing Justices has undergone changes over two
centuries, but its most basic feature—the sharing of power between the President and Senate—has remained unchanged: To centuries, but its most basic feature—the sharing of power between the President and Senate—has remained unchanged: To
receive appointment to the Court, a candidate must first be nominated by the President and then confirmed by the Senate.receive appointment to the Court, a candidate must first be nominated by the President and then confirmed by the Senate.
Political considerations typically play an important role in Supreme Court appointments. It is often assumed, for example, Political considerations typically play an important role in Supreme Court appointments. It is often assumed, for example,
that Presidents will be inclined to select a nominee whose political or ideological views appear compatible with their own. that Presidents will be inclined to select a nominee whose political or ideological views appear compatible with their own.
The political nature of the appointment process becomes especially apparent when a President submits a nominee with The political nature of the appointment process becomes especially apparent when a President submits a nominee with
controversial views, there are sharp partisan or ideological differences between the President and the Senate, or the outcome controversial views, there are sharp partisan or ideological differences between the President and the Senate, or the outcome
of important constitutional issues before the Court is seen to be at stake.of important constitutional issues before the Court is seen to be at stake.
Additionally, over more than two centuries, a recurring theme in the Supreme Court appointment process has been the Additionally, over more than two centuries, a recurring theme in the Supreme Court appointment process has been the
assumed need for professional excellence in a nominee. During recent presidencies, nominees have at the time of nomination, assumed need for professional excellence in a nominee. During recent presidencies, nominees have at the time of nomination,
most often, served as U.S. appellate court judges. The integrity and impartiality of an individual have also been important most often, served as U.S. appellate court judges. The integrity and impartiality of an individual have also been important
criteria for a President when selecting a nominee for the Court.criteria for a President when selecting a nominee for the Court.
The speed by which a President selects a nominee for a vacancy has varied during recent presidencies. A President might The speed by which a President selects a nominee for a vacancy has varied during recent presidencies. A President might
announce his intention to nominate a particular individual within several days of when a vacancy becomes publicly known, announce his intention to nominate a particular individual within several days of when a vacancy becomes publicly known,
or a President might take multiple weeks or months to announce a nominee. The factors affecting the speed by which a or a President might take multiple weeks or months to announce a nominee. The factors affecting the speed by which a
President selects a nominee include whether a President had advance notice of a JusticePresident selects a nominee include whether a President had advance notice of a Justice’'s plan to retire, as well as when s plan to retire, as well as when
during the calendar year a Justice announces his or her departure from the Court.during the calendar year a Justice announces his or her departure from the Court.
On rare occasions, Presidents also have made Court appointments without the SenateOn rare occasions, Presidents also have made Court appointments without the Senate’'s consent, when the Senate was in s consent, when the Senate was in
recess. Such recess. Such “"recess appointments,recess appointments,”" however, were temporary, with their terms expiring at the end of the Senate however, were temporary, with their terms expiring at the end of the Senate’'s next s next
session. Recess appointments have, at times, been considered controversial because they bypassed the Senate and its session. Recess appointments have, at times, been considered controversial because they bypassed the Senate and its “"advice advice
and consentand consent”" role. The last recess appointment to the Court was made in 1958 when President Eisenhower appointed Potter role. The last recess appointment to the Court was made in 1958 when President Eisenhower appointed Potter
Stewart as an Associate Justice (Justice Stewart was confirmed by the Senate the following year).Stewart as an Associate Justice (Justice Stewart was confirmed by the Senate the following year).
On January 27, 2022, Justice Stephen Breyer announced his intention to vacate his seat on the Supreme Court at the end of its
current term (assuming his successor has been nominated and confirmed). On February 28, 2022, President Biden formally
nominated Judge Ketanji Brown Jackson to fill the anticipated vacancy created by Justice Breyer’s announced retirement.
The information presented in this report is current through the confirmation of Justice The information presented in this report is current through the confirmation of Justice Amy Coney Barrett in 2020. For recent
Ketanji Brown Jackson in 2022. For additional information related to the Jackson nomination, see CRS Insight IN11878, information related to the Jackson nomination, see CRS Insight IN11878, President’'s Selection of a Supreme Court Nominee:
The Nomination of Judge Ketanji Brown Jackson in Historical Context, by Barry J. McMillion., by Barry J. McMillion.
Additional CRS reports provide information and analysis related to other stages of the confirmation process for nominations Additional CRS reports provide information and analysis related to other stages of the confirmation process for nominations
to the Supreme Court. For a report related to consideration of nominations by the Senate Judiciary Committee, see CRS to the Supreme Court. For a report related to consideration of nominations by the Senate Judiciary Committee, see CRS
Report R44236, Report R44236, Supreme Court Appointment Process: Consideration by the Senate Judiciary Committee, by Barry J. , by Barry J.
McMillion. For a report related to Senate floor debate and consideration of nominations, see CRS Report R44234, McMillion. For a report related to Senate floor debate and consideration of nominations, see CRS Report R44234, Supreme
Court Appointment Process: Senate Debate and Confirmation Vote, by Barry J. McMillion.
Congressional Research Service

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link to page 4 link to page 5 link to page 5 link to page 6 link to page 7 link to page 8 link to page 8 link to page 8 link to page 10 link to page 11 link to page 11 link to page 12 link to page 16 link to page 16 link to page 17 link to page 19 link to page 22 link to page 22 link to page 22 link to page 23 link to page 23 link to page 23 link to page 23 link to page 24 link to page 24 link to page 26 link to page 27 link to page 28 link to page 15 link to page 15 link to page 20 link to page 20 link to page 29 Supreme Court Appointment Process: President’s Selection of a Nominee

Contents
Background ..................................................................................................................................... 1
Justice Breyer’s Announced Intention to Retire ........................................................................ 2
How Supreme Court Vacancies Occur ............................................................................................ 2
Death of a Sitting Justice ........................................................................................................... 3
Retirement or Resignation of a Sitting Justice .......................................................................... 4
Nomination of a Sitting Justice to Chief Justice Position ......................................................... 5
Advice and Consent ......................................................................................................................... 5
The Role of Senate Advice ........................................................................................................ 5
Advice from Other Sources ....................................................................................................... 7
Criteria for Selecting a Nominee ..................................................................................................... 8
Political Considerations ............................................................................................................ 8
Professional Qualifications ....................................................................................................... 9
Integrity and Impartiality ........................................................................................................ 13
Other Factors ........................................................................................................................... 13
Background Investigations ............................................................................................................ 14
Speed by Which a President Selects a Nominee ........................................................................... 16
Vacancies That Have Had Multiple Nominations ................................................................... 19
The Powell Vacancy .......................................................................................................... 19
The O’Connor Vacancy ..................................................................................................... 19
The Scalia Vacancy ........................................................................................................... 20
Factors Affecting the Speed by Which a Nominee Is Selected ............................................... 20
Advance Notice of Vacancy .............................................................................................. 20
Strong Preference of President .......................................................................................... 20
Sense of Urgency .............................................................................................................. 21
When Vacancy Occurs ...................................................................................................... 21
Potential Drawbacks of Quickly Selecting a Nominee ........................................................... 23
Recess Appointments to the Court ................................................................................................ 24
Senate Resolution 334, 86th Congress ..................................................................................... 25

Figures
Figure 1. Type of Professional Experience of U.S. Supreme Court Nominees at Time of
Nomination ................................................................................................................................. 12
Figure 2. Number of Days from Vacancy Announcement of Departing Justice to
President’s Public Announcement Identifying Nominee for Vacancy ....................................... 17

Contacts
Author Information ........................................................................................................................ 26


Congressional Research Service

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Supreme Court Appointment Process: President’s Selection of a Nominee

Background
The appointment of a Supreme Court Justice is an event of major significance in American
politics.1 Each appointment to the nine-member Court is of consequence because of the enormous
judicial power that the Court exercises, separate from, and independent of, the executive and
legislative branches. While “on average, a new Justice joins the Court almost every two years,”2
the time at which any given appointment will be made to the Court is unpredictable.
Appointments may be infrequent (with a vacancy on the Court occurring only once or twice, or
never at all, during a particular President’s years in office)3 or occur in close proximity to each
other (with a particular President afforded several opportunities to name persons to the Court).4
The procedure for appointing a Justice to the Supreme Court is provided for in the U.S.
Constitution in only a few words. The “Appointments Clause” (Article II, 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.”5 While the process of appointing Justices has
undergone some changes over two centuries, its most essential feature—the sharing of power
between the President and the Senate—has remained unchanged: To receive appointment to the
Court, one must first be formally selected (“nominated”) by the President and then approved
(“confirmed”) by the Senate.
Although not mentioned in the Constitution, an important role is also played midway in the
process—after the President selects, but before the Senate as a whole considers the nominee—by
the Senate Judiciary Committee. Since the end of the Civil War, almost every Supreme Court

1Court Appointment Process: Senate Debate and Confirmation Vote, by Barry J. McMillion.

Background

The appointment of a Supreme Court Justice is an event of major significance in American politics.¹ Each appointment to the nine-member Court is of consequence because of the enormous judicial power that the Court exercises, separate from, and independent of, the executive and legislative branches. While "on average, a new Justice joins the Court almost every two years,"² the time at which any given appointment will be made to the Court is unpredictable. Appointments may be infrequent (with a vacancy on the Court occurring only once or twice, or not at all, during a particular President's years in office)³ or occur in close proximity to each other (with a particular President afforded several opportunities to name persons to the Court).⁴

The procedure for appointing a Justice to the Supreme Court is provided for in the U.S. Constitution in a few words. The "Appointments Clause" (Article II, 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."⁵ While the process of appointing Justices has undergone some changes over two centuries, its most essential feature—the sharing of power between the President and the Senate—has remained unchanged: To receive appointment to the Court, one must first be formally selected ("nominated") by the President and then approved ("confirmed") by the Senate.

Although not mentioned in the Constitution, an important role is also played midway in the process—after the President selects, but before the Senate as a whole considers the nominee—by the Senate Judiciary Committee. Since the end of the Civil War, almost every Supreme Court nomination received by the Senate has first been referred to and considered by the Judiciary Committee before being acted on by the Senate as a whole.

For the President, the appointment of a Supreme Court Justice can be a notable measure by which history will judge his Presidency.⁶ For the Senate, a decision to confirm is a solemn matter as well, for it is the Senate alone, through its "Advice and Consent" function, without any formal involvement of the House of Representatives, which acts as a safeguard on the President's judgment. Traditionally, the Senate has tended to be less deferential to the President in his choice of Supreme Court Justices than in his appointment of persons to high executive branch positions.⁷ The more exacting standard usually applied to Supreme Court nominations reflects the special importance of the Court, coequal to and independent of the presidency and Congress. Senators are also mindful that, as noted earlier, Justices receive what can amount to lifetime appointments.⁸

Most Recent Supreme Court Nomination Included in Report

The information presented in this report is current through the confirmation of Justice Ketanji Brown Jackson in 2022. For additional information related to the Jackson nomination, see CRS Insight IN11878, President's Selection of a Supreme Court Nominee: The Nomination of Judge Ketanji Brown Jackson in Historical Context, by Barry J. McMillion.

How Supreme Court Vacancies Occur⁹

Under the Constitution, Justices on the Supreme Court hold office "during good Behaviour,"¹⁰ in effect typically receiving lifetime appointments to the Court. Once confirmed, Justices may hold office for as long as they live or until they voluntarily step down. Such job security in the federal government is conferred solely on judges and, by constitutional design, is intended to insure the independence of the federal judiciary, including the Supreme Court, from the President and Congress.¹¹

A President has no power to remove a Supreme Court Justice from office. A Justice may be removed by Congress, but only through the process of impeachment by the House and conviction by the Senate. Since the Court's founding in 1790, one Justice has been impeached (in an episode which occurred in 1804), and he remained in office after being acquitted by the Senate.¹² Many Justices serve for 20 to 30 years and sometimes are still on the Court decades after the President who nominated them has left office.¹³

Death of a Sitting Justice

The prospect of lifetime tenure, interesting work, and the prestige of the office often result in Justices choosing to serve on the Court for as long as possible. Consequently, it has not been unusual, historically, for Justices to die while in office. Of the 114 vacancies that have occurred on the Court during the past 225 years, from the first vacancy in 1791 to the vacancy created by Justice Stephen Breyer's retirement in 2022, 48 (or 42%) have arisen as the result of the death of a sitting Justice (while 66, or 58%, have occurred as the result of a Justice stepping down from the Court).

Over the past 60 years it has been relatively rare for vacancies on the Court to be created by the death of a sitting Justice.¹⁴ For example, since the mid-1950s, the second-most recent vacancy on the Court, created by the passing of Justice Ginsburg, is the third instance during this period of a vacancy created by the death of a Justice. Prior to the deaths of Justice Ginsburg (in 2020), Justice Scalia (2016), and Chief Justice Rehnquist (2005), the most recent Justices to die while serving on the Court were Justices Robert Jackson (1954) and Fred Vinson (1953).

Retirement or Resignation of a Sitting Justice

Since 1954, voluntary retirement has been by far the most common way in which Justices have left the bench (21, or 81%, of 26 vacancies occurring after 1954 resulted from retirements).

In contrast to retirement, resignation (i.e., leaving the bench before becoming eligible for retirement compensation) is rare.¹⁵ In recent history, two Justices have resigned from the Court. Justice Arthur Goldberg resigned in 1965 to assume the post of U.S. Ambassador to the United Nations.¹⁶ Justice Abe Fortas resigned four years later, in 1969, after protracted criticism over controversial consulting work while on the bench and a failed nomination to be elevated from Associate Justice to Chief Justice.¹⁷ When Justices retire or resign, the President is usually notified by formal letter.¹⁸

Pursuant to a law enacted in 1939, a Justice (or any other federal judge receiving a lifetime appointment) may also retire if "unable because of permanent disability to perform the duties of his office," by furnishing the President a certificate of disability.¹⁹ Prior to 1939, specific legislation from Congress was required to provide retirement benefits to a Justice departing the Court because of disability who otherwise would be ineligible for such benefits, due to insufficient age and length of service. In such circumstances in 1910, for instance, Congress took legislative action granting a pension to Justice William Moody. As the Washington Post reported at the time, although illness had kept Justice Moody from the bench for "almost a year," he was not yet eligible for retirement.²⁰

Nomination of a Sitting Justice to Chief Justice Position

When a Chief Justice vacancy arises, the President may choose to nominate a sitting Associate Justice for the Court's top post.²¹ If the Chief Justice nominee is confirmed, he or she must, to assume the new position, resign as Associate Justice, requiring a new nominee from the President to fill the newly vacated Associate Justice seat.

The scenario described above is a relatively rare occurrence. From 1900 to the present, Presidents attempted to elevate Associate Justices to Chief Justice four times, with the Senate confirming the nominees on three occasions. Most recently, in 1986, President Ronald Reagan nominated then-Associate Justice William Rehnquist to be Chief Justice after Chief Justice Burger announced he was stepping down from the Court.²² Consequently, President Reagan also nominated Antonin Scalia to fill the Associate Justice vacancy that would ultimately be created by Justice Rehnquist's elevation to Chief Justice.

Advice and Consent

As discussed above, the need for a Supreme Court nominee arises when a vacancy occurs on the Court due to the death, retirement, or resignation of a Justice (or when a Justice announces his or her intention to retire or resign).²³ It then becomes the President's constitutional responsibility to select a successor to the vacating Justice,²⁴ as well as the constitutional responsibility of the Senate to exercise its role in providing "advice and consent" to the President.²⁵

The Role of Senate Advice

Constitutional scholars have differed as to how much importance the Framers of the Constitution attached to the word "advice" in the phrase "advice and consent." The Framers, some have maintained, contemplated the Senate performing an advisory, or recommending, role to the President prior to his selection of a nominee, in addition to a confirming role afterwards.²⁶ Others, by contrast, have insisted that the Senate's "advice and consent" role was meant to be strictly that of determining, after the President's selection had been made, whether to approve the President's choice.²⁷ Bridging these opposing schools of thought, another scholar asserted that the "more sensible reading of the term 'advice' is that it means that the Senate is constitutionally entitled to give advice to a president on whom as well as what kinds of persons he should nominate to certain posts, but this advice is not binding."²⁸ Historically, the degree to which Senate advice has been sought or used has varied, depending on the President.

It is a common, though not universal, practice for Presidents, as a matter of courtesy, to consult with Senate party leaders as well as with members of the Senate Judiciary Committee before choosing a nominee.²⁹ Senators who candidly inform a President of their objections to a prospective nominee may help in identifying shortcomings in that candidate or the possibility of a confirmation battle in the Senate, which the President might want to avoid. Conversely, input from the Senate might draw new Supreme Court candidates to the President's attention, or provide additional reasons to nominate a person who already is on the President's list of prospective nominees.³⁰

As a rule, Presidents are also careful to consult with a candidate's home-state Senators, especially if they are of the same political party as the President. The reason for such care is due to the long-standing custom of "senatorial courtesy," whereby Senators, in the interests of collegiality, are inclined, though not bound, to support a Senate colleague who opposes a presidential nominee from that Member's state. While usually invoked by home-state Senators to block lower federal court nominees whom they find unacceptable, the custom of "senatorial courtesy" has sometimes also played a part in the defeat of Supreme Court nominations.³¹

Besides giving private advice to the President, Senators may also counsel a President publicly. A Senator, for example, may use a Senate floor statement or issue a statement to the news media indicating support for, or opposition to, a potential Court nominee, or type or quality of nominee, for the purpose of attracting the President's attention and influencing the President's choice.³²

Advice from Other Sources

Advice may come to Presidents not only from the Senate but from many other sources. One key source of influence may be high-level advisers within the President's Administration.³³ Others who may provide advice include House Members, party leaders, interest groups,³⁴ news media commentators, and, periodically, Justices already on the Court.³⁵ Presidents are free to consult with, and receive advice from, whomever they choose.

Criteria for Selecting a Nominee

While the precise criteria used in selecting a Supreme Court nominee vary from President to President, two general motivations appear to underlie the choices of almost every President. One is the desire to have the nomination serve the President's political interests (in the partisan and electoral senses of the word "political," as well as in the public policy sense); the second is to demonstrate that a search was successfully made for a nominee having the highest professional qualifications.

Political Considerations

Virtually every President is presumed to take into account a wide range of political considerations when faced with the responsibility of filling a Supreme Court vacancy. For instance, most Presidents, it is assumed, will be inclined to select a nominee whose political or ideological views appear compatible with their own. Specifically, "Presidents are, for the most part, results-oriented. This means that they want Justices on the Court who will vote to decide cases consistent with the president's policy preferences."³⁶

The President also may consider whether a prospective nomination will be pleasing to the constituencies upon whom he especially relies for political support or whose support he would like to attract.³⁷ For political or other reasons, nominee attributes such as party affiliation, ideological orientation, geographic origin, ethnicity, religion, and gender may be of particular importance to a President.³⁸ A President also might take into account whether the existing "balance" among the Court's members (in a political party, ideological, demographic, or other sense) should be maintained or altered.³⁹ The prospects for a potential nominee receiving Senate confirmation are another consideration. Even if a controversial nominee is believed to be confirmable, an assessment must be made as to whether the benefits of confirmation will be worth the costs of the political battle to be waged.⁴⁰

Professional Qualifications

Most Presidents also want their Supreme Court nominees to have unquestionably outstanding legal qualifications. Presidents look for a high degree of merit in their nominees not only in recognition of the demanding nature of the work that awaits someone appointed to the Court,⁴¹ but also because of the public's expectations that a Supreme Court nominee be highly qualified.⁴² With such expectations of excellence, Presidents often present their nominees as the best person, or among the best persons, available.⁴³ Many nominees, as a result, have distinguished themselves in the law (as lower court judges, legal scholars, or private practitioners) or have served as Members of Congress, as federal administrators, or as governors.⁴⁴ Although neither the Constitution nor federal law requires that a Supreme Court Justice be a lawyer, every person nominated to the Court thus far has been.⁴⁵

After the President formally submits a nomination to the Senate (but prior to committee hearings on the nomination), the nominee is evaluated by the American Bar Association's Standing Committee on the Federal Judiciary. The committee stresses that an evaluation focuses strictly on the candidate's "professional qualifications: integrity, professional competence and judicial temperament" and does "not take into account [his or her] philosophy, political affiliation or ideology."⁴⁶

Figure 1 reports, from 1945 to the present, the type of professional position or occupation held by an individual at the time of his or her nomination to the Supreme Court.⁴⁷ So, for example, at the time of his nomination by President Truman in 1945, Harold Burton was serving as a U.S. Senator from Ohio. Since 1945, the most common type of professional experience at the time of his or her nomination has been service as a federal appellate court judge (26, or 65%, of 40 nominees),⁴⁸ followed by service as an official in the executive branch (8, or 20%, of 40 nominees).⁴⁹ Overall, at least since 1945, it has been relatively rare for a nominee, at the time of nomination, to be serving as a state judge, working as an attorney in private practice, or holding elective office.

Note that the percentage of nominees serving as U.S. appellate court judges at the time of nomination is even greater during relatively recent presidencies. From 1981 to the present, for example, 16 (or 84%) of 19 nominees were serving as appellate judges immediately prior to nomination.⁵⁰ In contrast, since 1981, no nominees to the Court were engaged in private practice or serving in elective office at the time of nomination.

Figure 1. Type of Professional Experience of U.S. Supreme Court Nominees at Time of Nomination

(1945-Present)

Source: Congressional Research Service.

Notes: This figure identifies, for nominees to the U.S. Supreme Court from 1945 to the present, the type of professional experience at the time of nomination to the Court.

* Nomination returned to or withdrawn by the President or rejected by the Senate.

** President announced intention to nominate but did not formally submit nomination to Senate.

*** Received recess appointment to the Court during the preceding calendar year. The year listed is the year in which the nomination was approved by the Senate.

A President's search for professional excellence in a nominee rarely proceeds without also taking political factors into account. Rather, "more typically," a President "seeks the best person from among a list of those who fulfill certain of these other [political] criteria and, of course, who share a president's vision of the nation and the Court."⁵¹

Integrity and Impartiality

Closely related to the expectation that a Supreme Court nominee have excellent professional qualifications are the ideals of integrity and impartiality in a nominee.⁵² Most Presidents presumably will be aware of the historical expectation, dating back to Alexander Hamilton's pronouncements in the Federalist Papers, that a Justice be a person of integrity who is able to approach cases and controversies impartially, without personal prejudice.⁵³ In that same spirit, a bipartisan study commission on judicial selection in 1996 declared that it was "most important" to appoint judges who were not only learned in the law and conscientious in their work ethic but who also possessed "what lawyers describe as 'judicial temperament.'" This term, the commission explained, "essentially has to do with a personality that is evenhanded, unbiased, impartial, courteous yet firm, and dedicated to a process, not a result."⁵⁴ Accordingly, Presidents sometimes will cite the integrity or fairness of Supreme Court nominees to buttress the case for their appointment to the Court.⁵⁵

Other Factors

Any given President also might single out other qualities as particularly important for a Supreme Court nominee to have, as President Barack Obama did in 2009, when announcing his nomination of Judge Sonia Sotomayor to the Court. In prefatory remarks to that announcement, President Obama cited selection criteria similar to those mentioned by other recent Presidents, such as "mastery of the law," the "ability to hone in on the key issues and provide clear answers to complex legal questions," and "a commitment to impartial justice."

He added that such qualities, while "essential" for anyone sitting on the Supreme Court, "alone are insufficient," and that "[w]e need something more."⁵⁶ An additional requisite quality, President Obama said, was "experience," which he explained was

Experience being tested by obstacles and barriers, by hardship and misfortune, experience insisting, persisting, and ultimately, overcoming those barriers. It is experience that can give a person a common touch and a sense of compassion, an understanding of how the world works and how ordinary people live. And that is why it is a necessary ingredient in the kind of Justice we need on the Supreme Court.⁵⁷

More recently, Justice Ketanji Brown Jackson became the first Black woman nominated and appointed to the Court. When President Biden nominated Jackson to the Court in 2022, he stated

For too long, our government, our courts haven't looked like America. And I believe it's time that we have a Court that reflects the full talents and greatness of our nation with a nominee of extraordinary qualifications and that we inspire all young people to believe that they can one day serve their country at the highest level.⁵⁸

A President, as well, may consider additional factors when the Supreme Court vacancy to be filled is that of the Chief Justice. Besides requiring that a candidate be politically acceptable, have excellent legal qualifications, and enjoy a reputation for integrity, a President might be concerned that his nominee have proven leadership qualities necessary to effectively perform the tasks specific to the position of Chief Justice. Such leadership qualities, in the President's view, could include administrative and human relations skills, with the latter especially important in fostering collegiality among the Court's members.⁵⁹

The President also might look for distinction or eminence in a Chief Justice nominee sufficient to command the respect of the Court's other Justices, as well as to further public respect for the Court. A President, too, might be concerned with the age of the Chief Justice nominee, requiring, for instance, that the nominee be at least of a certain age (to insure an adequate degree of maturity and experience relative to the other Justices) but not above a certain age (to allow for the likely ability to serve as a leader on the Court for a substantial number of years).⁶⁰

Background Investigations

An important part of the selection process involves investigating the background of prospective nominees. In recent years the investigative effort generally has followed two primary tracks—one concerned with the public record and professional credentials of a person under consideration, the other with the candidate's private background. The private background investigation, which includes examination of a candidate's personal financial affairs, is conducted by the Federal Bureau of Investigation (FBI). The investigation into a candidate's public record and professional abilities ordinarily is headed by high Justice Department officials, White House aides, or both, working together.

The investigative process may be preliminary in nature when the objective is to identify potential candidates and consider their relative merits based on information already known or readily available. The investigations become more intensive as the initial list is narrowed. The object then becomes to learn as much as possible about the prospective nominees—to accurately gauge their qualifications and their compatibility with the President's specific requirements for a nominee, and, simultaneously, to flag anything in their backgrounds that might be disqualifying or jeopardize their chances for Senate confirmation. For help in evaluating the backgrounds of Court candidates, Presidents sometimes also have enlisted the assistance of private lawyers,⁶¹ legal scholars,⁶² or, on rare occasions, the American Bar Association (ABA).⁶³ Near the culmination of this investigative effort, the President might want to personally meet with one or more of the candidates before finally deciding whom to nominate.⁶⁴

During the prenomination phase, Presidents vary in the degree to which they publicly reveal the names of individuals under consideration for the Court. Sometimes, Presidents seek to keep confidential the identity of their Court candidates. Such secrecy may allow a President to reflect on the qualifications of prospective nominees, and the background investigations to proceed, away from the glare of publicity, news media coverage, and outside political pressures. Other times, the White House may, at least in the early prenomination stage, reveal the names of Supreme Court candidates being considered. Such openness may be intended to serve various purposes—among them, to test public or congressional reaction to potential nominees, please political constituencies who would identify with identified candidates, or demonstrate the President's determination to conduct a comprehensive search for the most qualified person available.

An Administration need not wait until a vacancy occurs on the Court to begin investigating the backgrounds of potential nominees. Immediately after President George W. Bush was sworn into office in 2001, according to a book on Supreme Court nominations, "his staff began putting together a list of potential nominees and conducting extensive background research on them." The book continued

Officials believed [Chief Justice William H.] Rehnquist was likely to retire in the summer of 2001, and they were determined to be ready. Each young lawyer in the White House counsel's office, most of whom had clerked on the Supreme Court, was assigned a candidate and made responsible for writing a lengthy report about him or her. In the late spring, then-White House counsel Alberto Gonzalez and his deputy Tim Flanigan began secretly interviewing some of those possible replacements.

The advance work was designed to ensure that George W. Bush would be prepared when a Justice stepped down. The early in-depth research and interviews with prospective nominees were reportedly important in ensuring Bush would have coolheaded advice, removed from any external political pressure to select a particular nominee in the hours after a retirement.⁶⁵

Speed by Which a President Selects a Nominee Figure 2 shows the number of days that elapsed between the date on which it was publicly known that a Justice was leaving the Court (due to retirement or death) and the date on which the President publicly identified a nominee to replace the departing Justice.⁶⁶ The figure only shows, since 1975, those vacancies on the Court which required only a single nomination to be filled. Consequently, for example, the vacancy created by the death of Justice Scalia is not included in Figure 2 (since more than one nomination was made before it was filled). Overall, for the 14 vacancies included in Figure 2, approximately 20 days, on average, elapsed between the date on which it was publicly known that a Justice was leaving the Court and the date on which the President publicly identified a nominee to replace the Justice. For the same 14 vacancies, the median length of time between the two dates was 14 days. For the seven Justices currently serving on the Court who are included in Figure 2, the average number of days from a vacancy occurring to a President's public announcement of his or her nomination to the Court was 16 days (with a median of 12 days).

Figure 2. Number of Days from Vacancy Announcement of Departing Justice to President's Public Announcement Identifying Nominee for Vacancy

(Vacancies Since 1975 That Required Only One Nomination Prior To Being Filled)

Source: Congressional Research Service.

Notes: This figure shows, for select vacancies since the Gerald Ford presidency, the number of days that elapsed from the public vacancy announcement of a departing Justice to the President's public announcement identifying his nominee for the vacancy. The figure does not include three vacancies during this period that required multiple nominations by a President in order for the vacancy to be filled—specifically, the vacancies created by the departures of Justice Lewis Powell, Justice Sandra Day O'Connor, and Justice Antonin Scalia (see the text of the report for additional information).

For the purposes of this report, if a Justice died while serving on the Court, the date of his or her death is treated as the date on which a vacancy was publicly known or announced.

* John Roberts Jr. was initially nominated to the judgeship being vacated by Justice Sandra Day O'Connor. President G.W. Bush nominated Mr. Roberts 18 days after Justice O'Connor submitted her retirement letter to the President. Following the death of Chief Justice William Rehnquist, the Roberts nomination was withdrawn by President Bush and Mr. Roberts was subsequently renominated by President Bush to replace Chief Justice Rehnquist. Mr. Roberts was renominated 2 days after Chief Justice Rehnquist's death.

** William Rehnquist, who was already serving on the Court as an Associate Justice, was nominated by President Reagan to serve as the new Chief Justice once Chief Justice Burger stepped down from the Court. Justice Rehnquist's elevation to the Chief Justice position would itself create a vacancy for an Associate Justice, to which Mr. Scalia was nominated.

There has been variation in the length of time between when it was known there was or would be a vacancy on the Court and when a President publicly announced his intention to nominate a particular individual for the vacancy. For example, when a Justice steps down from the Court⁶⁷ or dies while in office, Presidents sometimes move relatively quickly, selecting their nominee within a week of the vacancy being announced. Presidents Reagan and George H. W. Bush, for instance, selected most of their Supreme Court nominees within days of the vacating Justices publicly announcing their retirements from the Court.⁶⁸

President Clinton, in contrast, took more time in selecting his two Supreme Court nominees, nominating Ruth Bader Ginsburg on June 22, 1993, nearly three months after the retirement announcement of Justice Byron White, and nominating Stephen Breyer on May 17, 1994, approximately five weeks after the retirement announcement of Justice Harry Blackmun.

Likewise, President George W. Bush's first two Supreme Court selections were not made immediately upon the heels of a Justice's retirement announcement: President Bush announced his choice of John Roberts to succeed Sandra Day O'Connor 18 days after she submitted her retirement letter to the President, and he announced his choice of Harriet Miers to succeed Justice O'Connor 28 days after withdrawing the aforementioned Roberts nomination.⁶⁹ President Bush did, however, move swiftly in selecting a nominee to succeed Chief Justice William Rehnquist, announcing his choice of Roberts for that office two days after the death of Chief Justice Rehnquist on September 3, 2005.⁷⁰

President Obama's three Supreme Court selections were made within approximately one month of an incumbent Justice departing the Court. He selected Sonia Sotomayor 25 days after Justice David Souter announced he was leaving the Court; Elena Kagan 31 days after Justice Stevens announced his retirement; and Merrick Garland 32 days following the death of Justice Scalia.

President Trump, in contrast to his immediate predecessor (President Obama), announced each of his nominations to the Court within two weeks of a vacancy occurring (or, in the case of the Scalia vacancy, within two weeks of assuming office in 2017). President Trump announced the nomination of Brett Kavanaugh 12 days after Justice Anthony Kennedy announced his retirement from the Court and announced the nomination of Amy Coney Barrett 8 days after Justice Ruth Bader Ginsburg's death created a vacancy on the Court. Similarly, President Trump announced the nomination of Neil Gorsuch to fill the vacancy on the Court created by the death of Justice Antonin Scalia 11 days after assuming office on January 20, 2017.

For the most recent vacancy, President Biden nominated Judge Ketanji Brown Jackson 29 days after Justice Stephen Breyer announced his intention to vacate his seat on the Court.⁷¹

Vacancies That Have Had Multiple Nominations As noted previously, Figure 2 includes only those vacancies on the Court, occurring since 1975, that did not have multiple nominations by a President in order for the vacancy to be filled. Specifically, since 1975, there have been three vacancies on the Court that had more than one nomination by a President in order for the vacancy to be filled—the most recent being the vacancy created on the Court by the death of Justice Scalia. The Powell Vacancy

The first vacancy during this period that had multiple nominations was the vacancy created by the departure of Justice Lewis Powell in 1987. President Reagan first nominated Robert Bork, an appellate judge on the D.C. Circuit, to fill the vacancy; Judge Bork was nominated five days after Justice Powell announced his retirement. The Bork nomination was ultimately rejected by the Senate and, as a result, President Reagan announced his intention to nominate Douglas H. Ginsburg, another appellate judge on the D.C. Circuit. President Reagan announced his intention to nominate Judge Ginsburg six days after the Bork nomination was rejected by the Senate. Judge Ginsburg was never formally nominated, and four days later Mr. Ginsburg withdrew his name from consideration,⁷² President Reagan nominated Anthony Kennedy (whose nomination was ultimately approved by the Senate).

Altogether, a total of 138 days, or approximately 4.5 months, elapsed from Justice Powell announcing his retirement to President Reagan nominating Anthony Kennedy to the vacancy.⁷³

The O'Connor Vacancy

The second vacancy that had multiple nominations to be filled was the vacancy created by the retirement of Justice Sandra Day O'Connor. Eighteen days elapsed from Justice O'Connor's announcement that she would step down from the Court (contingent upon the confirmation of her successor) to President G.W. Bush's nomination of John Roberts to replace her. The Roberts nomination was later withdrawn by the President (in order for Mr. Roberts to be re-nominated to fill the vacancy in the Chief Justice position arising from Justice Rehnquist's death); 28 days after the withdrawal of the Roberts nomination, President Bush nominated Harriet Miers to replace Justice O'Connor. The Miers nomination was later withdrawn by the President and four days later he nominated Samuel Alito (whose nomination was confirmed by the Senate).

Altogether, a total of 122 days, or approximately 4 months, elapsed from Justice O'Connor's announcement that she intended to retire to President G.W. Bush's nomination of Samuel Alito.

The Scalia Vacancy

The third vacancy during this period that had more than one nomination prior to the appointment of a new Justice is the vacancy created by the death of Justice Antonin Scalia on February 13, 2016. In contrast to the Powell and O'Connor vacancies discussed above, this is the sole vacancy during this period for which nominations to the Court will have been made by two different Presidents. Specifically, President Obama nominated Merrick Garland on March 16, 2016 (32 days after Justice Scalia's death). The Garland nomination was not acted upon by the Senate during the second session of the 114^th Congress and was returned to the President on January 3, 2017.⁷⁴ The Garland nomination was pending before the Senate for a total of 293 days, or approximately 10 months, prior to being returned to the President.

On January 31, 2017, President Trump, 11 days after he assumed office on January 20, 2017, announced his intention to nominate Neil Gorsuch to fill the vacancy created by the death of Justice Scalia.⁷⁵

Factors Affecting the Speed by Which a Nominee Is Selected Advance Notice of Vacancy

A President may be well positioned to make a quick announcement when a retiring Justice alerts the President beforehand (thus giving the President lead time, before the vacancy occurs, to consider whom to nominate as a successor).⁷⁶ Even when receiving no advance warning from an outgoing Justice, the President may already have in hand a "short list," prepared precisely for the event of a Court vacancy, of persons already evaluated and acceptable to the President for the appointment.⁷⁷

Strong Preference of President

If the President has a strong personal preference for a particular individual,⁷⁸ nominating the person quickly preempts the issue of whether someone else should be nominated. Rather than focus on a range of individuals who should be considered for the Supreme Court, the appointment process moves to the next major stage, to the question of whether that individual should be confirmed.

Sense of Urgency

Presidents also might be moved to nominate quickly in order to minimize the time during which there is a vacancy on the Court. If an actual vacancy is suddenly created—for example, due to an unexpected retirement, resignation, or death of a Justice—a President, as well as Senators, might be eager to bring the Court back to full strength as soon as possible. A similar sense of urgency might be felt if a Justice has announced the intention to step down from the Court by a date certain in the near future.

The length of time between the date of Justice Ruth Bader Ginsburg's death and the date of the 2020 presidential election likely contributed to a sense of urgency to fill the vacancy created by Ginsburg's death. Specifically, Judge Amy Coney Barrett was selected relatively quickly as the nominee for the Ginsburg vacancy (i.e., eight days from the vacancy occurring to Judge Barrett's selection). Along these lines, it was reported that the Republican majority leader's goal was to have the Barrett nomination approved "by late October."⁷⁹

When Vacancy Occurs

The speed with which a President chooses a nominee also, as noted above, can be affected by when a seat on the Court is vacated. Sometimes, Justices might announce their retirement when the Court recesses for the summer, in late June or early July, giving the President little or no advance notice. In such situations, a President might decide to nominate quickly, to allow the Senate confirmation process to begin as quickly as possible. A swiftly made nomination, in such a circumstance, affords the Senate Judiciary Committee and the Senate as long as three months (July through September) in which to consider the nomination before the start of the Court's term in early October, thereby increasing the chances of the Court being at full nine-member strength when it reconvenes.

Sometimes, when Justices give advance notice of their intention to retire, Presidents might be under relatively little pressure to nominate quickly. In spring 1993, for example, Justice Byron White announced he would step down when the Court adjourned for the summer. His advance notice gave President Clinton and the Senate together more than six months in which, respectively, to nominate and confirm a successor before the beginning of the Court's next term in October. A year later, in spring 1994, Justice Harry Blackmun announced his intention to retire at the end of the Court term then in progress, again affording the President and the Senate ample time to appoint a successor to a retiring Justice before the start of the next Court term.⁸⁰ Despite the long lead time afforded by Justice Blackmun's announcement, however, White House advisers reportedly believed it was "important to act quickly" to name a successor to Blackmun. To move quickly, it was reported, would serve to "avoid a repeat of the [previous] year's drawn out process" in which President Clinton engaged in a "very public, three-month search" before nominating Ruth Bader Ginsburg to the Court.⁸¹ After Justice Blackmun's announcement, President Clinton deliberated five weeks before announcing, on May 13, 1994, his selection of U.S. appellate court judge Stephen Breyer to be his Supreme Court nominee.

President Barack Obama also was provided considerable advance notice of an upcoming Court vacancy when Justice David Souter informed the President by letter on May 1, 2009, of his intention to step down when the Court recessed for the summer (the Court went into summer recess on June 29). Three and a half weeks later, on May 26, President Obama announced his intention to nominate a U.S. appellate judge, Sonia Sotomayor, to succeed Justice Souter. The selection by President Obama was, on the one hand, not as quickly made as some of the nominee selections of Presidents Reagan, George H. W. Bush, and George W. Bush. On the other hand, President Obama took less time than President Clinton did in making his three Court selections.

During the 25 days between Justice Souter's retirement notice and the selection of Judge Sotomayor, President Obama had enough time, in his words, to seek "the advice of Members of Congress on both sides of the aisle, including every member of the Senate Judiciary Committee."⁸² That he did not take additional time to decide whom to select might have been influenced by a concern for allowing the Senate to begin considering a Court nomination as soon as possible. The President and some Senate Democrats expressed the hope that the Senate would vote to confirm Judge Sotomayor not merely before the start of the Court's term in October, but before the Senate's August 2009 recess, in order to afford time for her to prepare for that term.⁸³ (The Senate ultimately confirmed the Sotomayor nomination on August 6, 2009.⁸⁴)

Presidents also may have considerable latitude in deciding when to nominate if an outgoing Justice schedules his or her retirement to take effect only when a successor is confirmed or assumes office. For example, Justice Sandra Day O'Connor, in a July 1, 2005, letter to President George W. Bush, announced her decision to retire from the Court "effective upon the nomination and confirmation" of her successor.⁸⁵ At the announcement of Justice O'Connor's retirement, President Bush declared he would "choose a nominee in a timely manner" so that the nominee would receive a Senate hearing and confirmation vote "before the new Supreme Court term begins."⁸⁶ Within three weeks he announced his selection of John Roberts to succeed Justice O'Connor.⁸⁷ The conditional nature of Justice O'Connor's planned retirement, however, meant that her seat on the Court would be occupied when the Court convened for its October 2005 term, whether or not her successor were confirmed by then.

Ultimately, Justice O'Connor remained on the Court for four months of the new Court term, retiring on January 31, 2006, when the third person nominated by President Bush to succeed her, Samuel Alito, was confirmed by the Senate. During the months that Justice O'Connor remained on the Court, awaiting the confirmation of her successor, the Associate Justice nomination of John Roberts was withdrawn so that President Bush could nominate Roberts to be Chief Justice (following the death of Chief Justice Rehnquist on September 3, 2005); a second nomination to succeed Justice O'Connor, that of White House Counsel Harriet Miers, was made, only to be withdrawn three weeks later; and, on November 10, 2005, a third person, Samuel Alito, was nominated to succeed Justice O'Connor. For a President, the need to select an Associate Justice nominee might be seen as less urgent than the appointment of a Chief Justice, particularly if, as was the case in 2005, the Chief Justice position is actually vacant and the Associate Justice vacancy is not actual, but prospective.

Most recently, in early 2022, Justice Stephen Breyer took a similar approach as Justice O'Connor, when he announced in a letter to President Biden that he intended to step down from the Court at the conclusion of its regular term, "assuming that by then [his] successor has been nominated and confirmed."⁸⁸ Subsequently, Justice Breyer's successor, Ketanji Brown Jackson, was nominated by President Biden on February 28, 2022, and confirmed by the Senate on April 7, 2022.

Potential Drawbacks of Quickly Selecting a Nominee

Selecting a Supreme Court nominee relatively quickly may have drawbacks. A President may be accused of charging ahead with a nominee without having first adequately consulted with the Senate, or without having taken the time necessary to determine who really would make the best nominee—either in terms of the nominee's professional qualifications or ideological disposition.⁸⁹ Also, quick announcements might not allow time for the FBI to conduct a comprehensive background investigation prior to nomination, leaving open the possibility of unfavorable information about the nominee coming to light later.⁹⁰

Some nominees who were selected relatively quickly by a President were ultimately not approved or considered by the Senate (for one or more of the reasons mentioned above). President Reagan, for example, announced his intention to nominate Robert Bork five days after Justice Powell announced his retirement. Six days after the Bork nomination failed in the Senate, President Reagan subsequently announced his intention to nominate Douglas Ginsburg (who later asked the President to withdraw his name from consideration for Powell's seat). But the relatively quick selection of a nominee by a President does not necessarily mean that the nomination will not be approved by the Senate. David Souter, for example, was nominated three days after Justice Brennan's retirement was publicly announced (and Clarence Thomas was nominated four days after Justice Marshall's retirement).

Recess Appointments to the Court

On 12 occasions (most of them in the 19^th century), Presidents have made temporary appointments to the Supreme Court without submitting nominations to the Senate. These occurred when Presidents exercised their power under the Constitution to make "recess appointments" when the Senate was not in session.⁹¹ Historically, when recesses between sessions of the Senate were much longer than they are today, recess appointments served the purpose of averting long vacancies on the Court when the Senate was unavailable to confirm a President's appointees. The terms of these recess appointments, however, were limited, expiring at the end of the next session of Congress (unlike the potentially lifetime appointments Court appointees receive when nominated and then confirmed by the Senate). Despite the temporary nature of these appointments, every person appointed during a recess of the Senate, except one, ultimately received a later appointment to the Court after being nominated by the President and confirmed by the Senate.⁹²

Recess appointments, when they do occur, may cause controversy, in large part because they bypass the Senate and its "advice and consent" role.⁹³ The last President to make a recess appointment to the Court was Dwight D. Eisenhower. Of the five persons whom he nominated to the Court, three initially received recess appointments and served as Justices before being confirmed by the Senate—Earl Warren (as Chief Justice) in 1953, William Brennan in 1956, and Potter Stewart in 1958.⁹⁴

Senate Resolution 334, 86^th Congress

The Senate, on August 29, 1960, adopted S. Res. 334 "expressing the sense of the Senate that the President should not make recess appointments to the Supreme Court, except to prevent or end a breakdown in the administration of the Court's business, and a recess appointee should not take his seat on the Court until the Senate has 'advised and consented' to the nomination."⁹⁵ The resolution was adopted by a vote of 48-37, largely along party lines.⁹⁶

Senate proponents of the resolution contended, among other things, that judicial independence would be affected if Supreme Court recess appointees, during the probationary period of their appointment, took positions to please the President (in order not to have the President withdraw their nominations) or to please the Senate (in order to gain confirmation of their nominations). It also was argued that Senate investigation of nominations of these recess appointees was made difficult by the oath preventing sitting Justices from testifying about matters pending before the Court.⁹⁷

Opponents said, among other things, that the resolution was an attempt to restrict the President's constitutional recess appointment powers. Opponents also argued that recess appointments were sometimes called for in order to keep the Court at full strength to handle the Court's large and complex case load, as well as to prevent evenly split rulings by its members.⁹⁸ Additionally, opponents argued that the resolution "not only went beyond the 'advise and consent' powers of Congress, but that it was a reflection against [Eisenhower], as well as Chief Justice Earl Warren, and Justices William Brennan Jr. and Potter Stewart, who were recess appointees during the Eisenhower Administration."⁹⁹

Because of the criticisms of judicial recess appointments in recent decades, the long passage of time since the last Supreme Court recess appointment in 1958, and the relatively short duration of contemporary Senate recesses (which might diminish the need for recess appointments to the Court), a President in the 21^st century might hesitate to make a recess appointment to the Court and do so only under unusual circumstances.¹⁰⁰ Additionally, recent Supreme Court jurisprudence involving the Recess Appointments Clause might, under certain circumstances, constitutionally limit a President's ability to make recess appointments to the Court.

CRS Visual Information Specialist Amber Wilhelm assisted with the figures in this report.

Footnotes

1. This scope of this report involves the selection of a nominee to the Supreme Court by the President. For a report This scope of this report involves the selection of a nominee to the Supreme Court by the President. For a report
providing information and analysis related to consideration of nominations to the Court by the Senate Judiciary providing information and analysis related to consideration of nominations to the Court by the Senate Judiciary
Committee, see CRS Report R44236, Committee, see CRS Report R44236, Supreme Court Appointment Process: Consideration by the Senate Judiciary
Committee, by Barry J. McMillion. For a report providing information and analysis related to floor action on , by Barry J. McMillion. For a report providing information and analysis related to floor action on
nominations, see CRS Report R44234, nominations, see CRS Report R44234, Supreme Court Appointment Process: Senate Debate and Confirmation Vote, by , by
Barry J. McMillion.Barry J. McMillion.
2 2. U.S. Supreme Court, U.S. Supreme Court, The Supreme Court of the United States ( (Washington: Published by the Supreme Court with the Published by the Supreme Court with the
cooperation of the Supreme Court Historical Society, revised September 2006), p. 10. (Hereinafter cited as Supreme cooperation of the Supreme Court Historical Society, revised September 2006), p. 10. (Hereinafter cited as Supreme
Court, Court, Supreme Court of the United States.))
3 Of the 44 3. Of the 45 individuals who served as President of the United States prior to the start of the individuals who served as President of the United States prior to the start of the Bidensecond Trump presidency on presidency on
January 20, January 20, 2021, 62025, 7 (Presidents Andrew Johnson, (Presidents Andrew Johnson, Franklin Pierce, James A. Garfield, William McKinley, Calvin
Coolidge, and Gerald R. FordPierce, Garfield, McKinley, Coolidge, Ford, and Biden) made one Supreme Court nomination each, while 3 others (Presidents William Henry ) made one Supreme Court nomination each, while 3 others (Presidents William Henry
Harrison, Harrison, Zachary Taylor, and Taylor, and Jimmy Carter) were unable toCarter) did not make a single nomination make a single nomination to the Court sincesince there were no vacancies no vacancies
occurred on the Court during their presidencies. on the Court during their presidencies. Note that President Andrew JohnsonPresident Andrew Johnson’'s single nomination to the Court s single nomination to the Court
was not approved by the Senate. The remaining 35 Presidents made two or more nominations to the Supreme Court. As was not approved by the Senate. The remaining 35 Presidents made two or more nominations to the Supreme Court. As
of this writing, President of this writing, President BidenTrump has made no appointments to the Court has made no appointments to the Court.
4 during his second presidency. 4. For instance, nine vacancies occurred on the Court during a 5 ½-year period of Franklin D. Roosevelt For instance, nine vacancies occurred on the Court during a 5 ½-year period of Franklin D. Roosevelt’'s presidency, s presidency,
with all of FDRwith all of FDR’'s nine nominations to fill those vacancies confirmed by the Senate. The President with the largest s nine nominations to fill those vacancies confirmed by the Senate. The President with the largest
number of Supreme Court confirmations in one term (apart from the first eight of George Washingtonnumber of Supreme Court confirmations in one term (apart from the first eight of George Washington’'s nominations—s nominations—
all in his first term, and all confirmed) was William Howard Taft, who, during his four years in office, made six Court all in his first term, and all confirmed) was William Howard Taft, who, during his four years in office, made six Court
nominations, all of which were confirmed by the Senate.nominations, all of which were confirmed by the Senate.
5 5. The decision of the Framers at the Constitutional Convention of 1787 to have the President and the Senate share in the The decision of the Framers at the Constitutional Convention of 1787 to have the President and the Senate share in the
appointment of the Supreme Court Justices and other principal officers of the government, one scholar wrote, was a appointment of the Supreme Court Justices and other principal officers of the government, one scholar wrote, was a
compromise reached between compromise reached between “"one group of men [who] feared the abuse of the appointing power by the executive and one group of men [who] feared the abuse of the appointing power by the executive and
favored appointments by the legislative body,favored appointments by the legislative body,”" and and “"another group of more resolute men, eager to establish a strong another group of more resolute men, eager to establish a strong
national government with a vigorous administration, [who] favored the granting of the power of appointment to the national government with a vigorous administration, [who] favored the granting of the power of appointment to the
President.President.”" Joseph P. Harris, Joseph P. Harris, The Advice and Consent of the Senate: A Study of the Confirmation of Appointments by
the United States Senate ( (Berkeley, CA: University of California Press, 1953; reprint, University of California Press, 1953; reprint, New York: Greenwood Press, Greenwood Press,
1968), p. 33. (Hereinafter cited as Harris, 1968), p. 33. (Hereinafter cited as Harris, Advice and Consent of the Senate.))
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nomination received by the Senate has first been referred to and considered by the Judiciary
Committee before being acted on by the Senate as a whole.
For the President, the appointment of a Supreme Court Justice can be a notable measure by which
history will judge his Presidency.6 For the Senate, a decision to confirm is a solemn matter as
well, for it is the Senate alone, through its “Advice and Consent” function, without any formal
involvement of the House of Representatives, which acts as a safeguard on the President’s
judgment. Traditionally, the Senate has tended to be less deferential to the President in his choice
of Supreme Court Justices than in his appointment of persons to high executive branch positions.7
The more exacting standard usually applied to Supreme Court nominations reflects the special
importance of the Court, coequal to and independent of the presidency and Congress. Senators are
also mindful that, as noted earlier, Justices receive what can amount to lifetime appointments.8
Justice Breyer’s Announced Intention to Retire
On January 27, 2022, Justice Stephen Breyer announced his intention to vacate his seat on the
Supreme Court at the end of its current term (assuming his successor has been nominated and
confirmed).9 On February 28, 2022, President Biden formally nominated Judge Ketanji Brown
Jackson to fill the anticipated vacancy created by Justice Breyer’s announced retirement. The
information presented in this report is current through the confirmation of Justice Amy Coney
Barrett in 2020. For recent information related to the Jackson nomination, see CRS Insight
IN11878, President’s Selection of a Supreme Court Nominee: The Nomination of Judge Ketanji
Brown Jackson in Historical Context, by Barry J. McMillion.
How Supreme Court Vacancies Occur10
Under the Constitution, Justices on the Supreme Court hold office “during good Behaviour,”11 in
effect typically receiving lifetime appointments to the Court. Once confirmed, Justices may hold

6 6. Consider, for example, President John Adams Consider, for example, President John Adams’'s fateful nomination in 1801 of John Marshall. During his more than 34 s fateful nomination in 1801 of John Marshall. During his more than 34
years of service as Chief Justice, Marshall, years of service as Chief Justice, Marshall, “"more than any other individual in the history of the Court, determined the more than any other individual in the history of the Court, determined the
developing character of Americadeveloping character of America’'s Federal constitutional systems Federal constitutional system”" and and “"raised the Court from its lowly, if not raised the Court from its lowly, if not
discredited, position to a level of equality with the executive and legislative branches.discredited, position to a level of equality with the executive and legislative branches.”" Henry J. Abraham, Henry J. Abraham, Justices and
Presidents: A Political History of Appointments to the Supreme Court, , 3rd ed. (New York: 3^rd ed. (Oxford University Press, Oxford University Press,
1992), p. 83. (Hereinafter cited as Abraham, 1992), p. 83. (Hereinafter cited as Abraham, Justices and Presidents.) Looking back on his appointment a quarter .) Looking back on his appointment a quarter
century before, Adams in 1826 was quoted as saying, century before, Adams in 1826 was quoted as saying, “"My gift of John Marshall to the people of the United States was My gift of John Marshall to the people of the United States was
the proudest act of my life.the proudest act of my life.”" Charles Warren, Charles Warren, The Supreme Court in United States History, rev. edition, 2 vols. (Boston: , rev. edition, 2 vols. (Boston:
Little Brown, 1926), vol. 1, p. 178.Little Brown, 1926), vol. 1, p. 178.
7 “ 7. "By well-established custom, the Senate accords the President wide latitude in the selection of the members of his By well-established custom, the Senate accords the President wide latitude in the selection of the members of his
Cabinet, who are regarded as his chief assistants and advisers. It is recognized that unless he is given a free hand in the Cabinet, who are regarded as his chief assistants and advisers. It is recognized that unless he is given a free hand in the
choice of his Cabinet, he cannot be held responsible for the administration of the executive branch.choice of his Cabinet, he cannot be held responsible for the administration of the executive branch.”" Harris, Harris, Advice and
Consent of the Senate, p. 259., p. 259.
8 8. The Senate The Senate “"is perhaps most acutely attentive to its [advise and consent] duty when it considers a nominee to the is perhaps most acutely attentive to its [advise and consent] duty when it considers a nominee to the
Supreme Court. That this is so reflects not only the importance of our NationSupreme Court. That this is so reflects not only the importance of our Nation’'s highest tribunal, but also our s highest tribunal, but also our
recognition that while Members of the Congress and Presidents come and go ..., the tenure of a Supreme Court Justice recognition that while Members of the Congress and Presidents come and go ..., the tenure of a Supreme Court Justice
can span generations.can span generations.”" Sen. Daniel P. Moynihan, debate in Senate on Supreme Court nomination of Ruth Bader Sen. Daniel P. Moynihan, debate in Senate on Supreme Court nomination of Ruth Bader
Ginsburg, Ginsburg, Congressional Record, vol. 139, August 2, 1993, p. 18142., vol. 139, August 2, 1993, p. 18142.
9 Justice Breyer’s letter stating his intention to retire from the Court is available at https://www.supremecourt.gov/
publicinfo/press/Letter_to_President_January-27-2022.pdf.
10 9. This section of the report uses some text previously published in CRS Report RL33118, This section of the report uses some text previously published in CRS Report RL33118, Speed of Presidential and
Senate Actions on Supreme Court Nominations, 1900-2010, by R. Sam Garrett and Denis Steven Rutkus., by R. Sam Garrett and Denis Steven Rutkus.
11 U.S. Constitution, art. III, §1.
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office for as long as they live or until they voluntarily step down. Such job security in the federal
government is conferred solely on judges and, by constitutional design, is intended to insure the
independence of the federal judiciary, including the Supreme Court, from the President and
Congress.12
A President has no power to remove a Supreme Court Justice from office. A Justice may be
removed by Congress, but only through the process of impeachment by the House and conviction
by the Senate. Only one Justice has ever been impeached (in an episode which occurred in 1804),
and he remained in office after being acquitted by the Senate.13 Many Justices serve for 20 to 30
years and sometimes are still on the Court decades after the President who nominated them has
left office.14
Death of a Sitting Justice
The prospect of lifetime tenure, interesting work, and the prestige of the office often result in
Justices choosing to serve on the Court for as long as possible. Consequently, it has not been
unusual, historically, for Justices to die while in office. Specifically, of the 113 vacancies that
have occurred on the Court during the past 225 years, from the first vacancy in 1791 to the
vacancy created by Justice Ruth Bader Ginsburg’s death in 2020, 48 (or 42%) have arisen as the
result of the death of a sitting Justice.
Note, however, that over the past 60 years it has been relatively rare for vacancies on the Court to
be created by the death of a Justice.15 Since the mid-1950s, the most recent vacancy on the Court,

12 10.

U.S. Constitution, art. III, §1.

11. Alexander Hamilton, in Federalist Paper 78 ( Alexander Hamilton, in Federalist Paper 78 (“"The Judges as Guardians of the ConstitutionThe Judges as Guardians of the Constitution”"), maintained that, while ), maintained that, while
the judiciary was the judiciary was “"in continual jeopardy of being overpowered, awed, or influenced by its coordinate branches ... , in continual jeopardy of being overpowered, awed, or influenced by its coordinate branches ... ,
nothing can contribute so much to its firmness and independence as nothing can contribute so much to its firmness and independence as permanency in office..”" He added that if the courts He added that if the courts
“"are to be considered as the bulwarks of a limited Constitution against legislative encroachments, this consideration are to be considered as the bulwarks of a limited Constitution against legislative encroachments, this consideration
will afford a strong argument for the will afford a strong argument for the permanent tenure of judicial offices, since of judicial offices, since nothing will contribute so much as this
to that independent spirit in the judges.... .... ”" (Emphases added.) Benjamin Fletcher Wright, ed., (Emphases added.) Benjamin Fletcher Wright, ed., The Federalist by
Alexander Hamilton, James Madison, and John Jay ( (Cambridge, MA: Belknap Press of Harvard University Press, Belknap Press of Harvard University Press,
1966), p. 491 (first quote) and p. 494 (second quote). (Hereinafter cited as Wright, 1966), p. 491 (first quote) and p. 494 (second quote). (Hereinafter cited as Wright, The Federalist.).)
13 12. In 1804, the House of Representatives voted to impeach Justice Samuel Chase. The vote to impeach Chase, a staunch In 1804, the House of Representatives voted to impeach Justice Samuel Chase. The vote to impeach Chase, a staunch
Federalist and outspoken critic of Jeffersonian Republican policies, was strictly along party lines. In 1805, after a Federalist and outspoken critic of Jeffersonian Republican policies, was strictly along party lines. In 1805, after a
Senate trial, Chase was acquitted after votes in the Senate fell short of the necessary two-thirds majority on any of the Senate trial, Chase was acquitted after votes in the Senate fell short of the necessary two-thirds majority on any of the
impeachment articles approved by the House. impeachment articles approved by the House. “Chase’"Chase's impeachment and trial set a precedent of strict construction of s impeachment and trial set a precedent of strict construction of
the impeachment clause and bolstered the judiciarythe impeachment clause and bolstered the judiciary’'s claim of independence from political tampering.s claim of independence from political tampering.”" David G. David G.
Savage, Savage, Guide to the U.S. Supreme Court, , 4th ed. (Washington: 4^th ed. (Congressional Quarterly Inc., 2004), vol. 1, p. 258. Congressional Quarterly Inc., 2004), vol. 1, p. 258.
(Hereinafter cited as Savage, (Hereinafter cited as Savage, Guide to the U.S. Supreme Court.) In a few other instances, Justices have been the object .) In a few other instances, Justices have been the object
of preliminary House Judiciary Committee inquiries into allegations of conduct possibly constituting grounds for of preliminary House Judiciary Committee inquiries into allegations of conduct possibly constituting grounds for
impeachment, but in none of these instances was impeachment recommended by the committee. In another instance, impeachment, but in none of these instances was impeachment recommended by the committee. In another instance,
Justice Abe Fortas, on May 14, 1969, resigned from the Court three days after a House Member stated he had prepared Justice Abe Fortas, on May 14, 1969, resigned from the Court three days after a House Member stated he had prepared
articles of impeachment against the Justice, and one day after another House Member proposed that the House articles of impeachment against the Justice, and one day after another House Member proposed that the House
Judiciary Committee begin a preliminary investigation into allegations that the Justice was guilty of various ethical Judiciary Committee begin a preliminary investigation into allegations that the Justice was guilty of various ethical
violations. See Charles Gardner Geyh, violations. See Charles Gardner Geyh, When Courts & Congress Collide ( (Ann Arbor, MI: The University of Michigan The University of Michigan
Press, 2009), pp. 119-125; Lee Epstein et al., Press, 2009), pp. 119-125; Lee Epstein et al., The Supreme Court Compendium: : Data, Decisions & Developments, , 4th
ed. (Washington: 4^th ed. (Congressional Quarterly Inc., 2007), p. 428. (Hereinafter cited as Epstein, Congressional Quarterly Inc., 2007), p. 428. (Hereinafter cited as Epstein, Supreme Court
Compendium.); and U.S. Congress, House of Representatives, ); and U.S. Congress, House of Representatives, Hinds’' Precedents of the House of Representatives of the
United States, prepared by Asher C. Hinds, clerk at the Speaker, prepared by Asher C. Hinds, clerk at the Speaker’'s table (Washingtons table (Washington,: GPO, 1907), vol. 3, GPO, 1907), vol. 3, sec. 2508.
14§2508. 13. A Supreme Court booklet published in 2006 noted that since the formation of the Court in 1790, there had been only A Supreme Court booklet published in 2006 noted that since the formation of the Court in 1790, there had been only
17 Chief Justices and 98 Associate Justices, 17 Chief Justices and 98 Associate Justices, “"with Justices serving for an average of 15 years.with Justices serving for an average of 15 years.”" Supreme Court, Supreme Court,
Supreme Court of the United States, p. 10. p. 10.
15 Prior to 1900, in contrast to more recent years, 14. In contrast, prior to 1900 it was more common for vacancies to arise on the Court as a result of it was more common for vacancies to arise on the Court as a result of
the death of a sitting Justice. Of the 51 vacancies on the Court that arose between 1791 and 1899, 30 (or 59%) arose in the death of a sitting Justice. Of the 51 vacancies on the Court that arose between 1791 and 1899, 30 (or 59%) arose in
this manner.this manner.
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created by the passing of Justice Ginsburg, is only the third instance during this period of a
vacancy created by the death of a Justice. Prior to the deaths of Justice Ginsburg (in 2020),
Justice Scalia (in 2016), and Chief Justice Rehnquist (in 2005), the last sitting Justice to die while
serving on the Court was Justice Robert Jackson (in 1954).
Retirement or Resignation of a Sitting Justice
Since 1954, voluntary retirement has been by far the most common way in which Justices have
left the bench (20, or 80%, of 25 vacancies occurring after 1954 resulted from retirements).
In contrast to retirement, resignation (i.e., leaving the bench before becoming eligible for
retirement compensation) is rare.16 In recent history, two Justices have resigned from the Court.
Justice Arthur Goldberg resigned in 1965 to assume the post of U.S. Ambassador to the United
Nations.17 Justice Abe Fortas resigned four years later, in 1969, after protracted criticism over
controversial consulting work while on the bench and a failed nomination to be elevated from
Associate Justice to Chief Justice.18 When Justices retire or resign, the President is usually
notified by formal letter.19
Pursuant to a law enacted in 1939, a Justice (or any other federal judge receiving a lifetime
appointment) may also retire if “unable because of permanent disability to perform the duties of
his office,” by furnishing the President a certificate of disability.20 Prior to 1939, specific
legislation from Congress was required to provide retirement benefits to a Justice departing the
Court because of disability who otherwise would be ineligible for such benefits, due to
insufficient age and length of service. In such circumstances in 1910, for instance, Congress took
legislative action granting a pension to Justice William H. Moody. As the Washington Post
reported at the time, although illness had kept Justice Moody from the bench for “almost a year,”
he was not yet eligible for retirement.21

16 15. Under 28 U.S.C. §371, Supreme Court Justices, like other Article III (tenure Under 28 U.S.C. §371, Supreme Court Justices, like other Article III (tenure “"during good Behaviourduring good Behaviour”") federal ) federal
judges, may judges, may retire, and be entitled to receive retirement compensation, in one of two ways—either by taking , and be entitled to receive retirement compensation, in one of two ways—either by taking “"senior senior
status”status" or by or by “"retiring from office.retiring from office.”" Beginning at age 65, they are entitled to receive retirement compensation, if having Beginning at age 65, they are entitled to receive retirement compensation, if having
served a minimum 10 years as an Article III judge, their age and overall Article III judicial experience totals 80 years. served a minimum 10 years as an Article III judge, their age and overall Article III judicial experience totals 80 years.
(Hence, under this (Hence, under this “"Rule of 80,Rule of 80,”" a Justice of age 65 must have served 15 years to become eligible for retirement a Justice of age 65 must have served 15 years to become eligible for retirement
compensation; a Justice of age 66, 14 years; a Justice of age 67, 13 years; etc.) Judges who take senior status retire compensation; a Justice of age 66, 14 years; a Justice of age 67, 13 years; etc.) Judges who take senior status retire
from regular active service but retain their judicial office and the salary of the office, subject to annual certification of from regular active service but retain their judicial office and the salary of the office, subject to annual certification of
their having performed certain judicial or administrative duties in the preceding year. Judges who retire from office their having performed certain judicial or administrative duties in the preceding year. Judges who retire from office
completely relinquish their judicial office with the right to a frozen lifetime annuity equal to the salary of the office at completely relinquish their judicial office with the right to a frozen lifetime annuity equal to the salary of the office at
the time of retirement. In contrast, a Justicethe time of retirement. In contrast, a Justice’'s s resignation entails voluntarily relinquishing his or her judicial office entails voluntarily relinquishing his or her judicial office
without meeting the age and service requirements of the Rule of 80 (and thus being ineligible to receive retirement without meeting the age and service requirements of the Rule of 80 (and thus being ineligible to receive retirement
compensation). See U.S. Administrative Office of the United States Courts, compensation). See U.S. Administrative Office of the United States Courts, Senior Status and Retirement for Article III
Judges, April 1999 (Judges Information Series, No. 4), pp. vii-viii., April 1999 (Judges Information Series, No. 4), pp. vii-viii.
17 16. Carroll Kilpatrick, Carroll Kilpatrick, “"Goldberg is Named to Stevenson Post,Goldberg is Named to Stevenson Post,”" Washington Post, July 21, 1965, p. A1., July 21, 1965, p. A1.
18 17. On the controversies surrounding Justice Fortas On the controversies surrounding Justice Fortas’'s nomination and resignation, see Artemus Ward, s nomination and resignation, see Artemus Ward, Deciding to
Leave: The Politics of Retirement from the United States Supreme Court ( (Albany: State University of New York Press, State University of New York Press,
2003), pp. 171-175. (Hereinafter cited as Ward, 2003), pp. 171-175. (Hereinafter cited as Ward, Deciding to Leave); and Philip Warden and Aldo Beckman, ); and Philip Warden and Aldo Beckman, “"Fortas Fortas
Agrees to Quit, Nixon Aide Says,Agrees to Quit, Nixon Aide Says,”" Chicago Tribune, May 15, 1969, p. 7., May 15, 1969, p. 7.
19 18. See, for example, the letter submitted by Justice David See, for example, the letter submitted by Justice David H. Souter to President Obama, announcing Justice SouterSouter to President Obama, announcing Justice Souter’s
's intention to retire, at http://www.supremecourt.gov/publicinfo/press/DHSLetter.pdfintention to retire, at http://www.supremecourt.gov/publicinfo/press/DHSLetter.pdf.
20. 19. The law provides that a Justice retiring under these provisions shall receive for the remainder of his lifetime The law provides that a Justice retiring under these provisions shall receive for the remainder of his lifetime “"the the
salary he is receiving at the date of retirementsalary he is receiving at the date of retirement”" or, if his service was less than 10 years, one-half of that salary. Act of or, if his service was less than 10 years, one-half of that salary. Act of
August 5, 1939, ch. 433, 53 Stat. 1204-1205; 28 U.S.C. §372(a).August 5, 1939, ch. 433, 53 Stat. 1204-1205; 28 U.S.C. §372(a).
21 “ 20. "Moody Will Retire,Moody Will Retire,”" Washington Post, June 15, 1910, p. 1., June 15, 1910, p. 1.
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Nomination of a Sitting Justice to Chief Justice Position
When a Chief Justice vacancy arises, the President may choose to nominate a sitting Associate
Justice for the Court’s top post.22 If the Chief Justice nominee is confirmed, he or she must, to
assume the new position, resign as Associate Justice, requiring a new nominee from the President
to fill the newly vacated Associate Justice seat.
The scenario described above is a relatively rare occurrence. From 1900 to the present, Presidents
attempted to elevate Associate Justices to Chief Justice four times, with the Senate confirming the
nominees on three occasions. Most recently, in 1986, President Ronald Reagan nominated then-
Associate Justice William H. Rehnquist to be Chief Justice after Chief Justice Burger announced
he was stepping down from the Court.23 Consequently, President Reagan also nominated Antonin
Scalia to fill the Associate Justice vacancy that would ultimately be created by Justice
Rehnquist’s elevation to Chief Justice.
Advice and Consent
As discussed above, the need for a Supreme Court nominee arises when a vacancy occurs on the
Court due to the death, retirement, or resignation of a Justice (or when a Justice announces his or
her intention to retire or resign).24 It then becomes the President’s constitutional responsibility to
select a successor to the vacating Justice,25 as well as the constitutional responsibility of the
Senate to exercise its role in providing “advice and consent” to the President.26
The Role of Senate Advice
Constitutional scholars have differed as to how much importance the Framers of the Constitution
attached to the word “advice” in the phrase “advice and consent.” The Framers, some have
maintained, contemplated the Senate performing an advisory, or recommending, role to the
President prior to his selection of a nominee, in addition to a confirming role afterwards.27 Others,

22 21. Alternately, a President might nominate an individual not currently serving on the Court to fill the vacant Chief Alternately, a President might nominate an individual not currently serving on the Court to fill the vacant Chief
Justice position. Most recently, President G.W. Bush nominated John Justice position. Most recently, President G.W. Bush nominated John G. Roberts Jr.Roberts Jr., as Chief Justice to fill the vacancy as Chief Justice to fill the vacancy
created by the death of Chief Justice Rehnquist. At the time of his nomination, Mr. Roberts was not serving as an created by the death of Chief Justice Rehnquist. At the time of his nomination, Mr. Roberts was not serving as an
Associate Justice on the Court.Associate Justice on the Court.
23 22. The other Associate Justices nominated for Chief Justice during the period were Edward The other Associate Justices nominated for Chief Justice during the period were Edward D. White (1910), Harlan White (1910), Harlan F.
Stone (1941), and Abe Fortas (1968). As noted previously, Justice FortasStone (1941), and Abe Fortas (1968). As noted previously, Justice Fortas’'s nomination failed to receive Senate s nomination failed to receive Senate
confirmation.confirmation.
24 23. As noted above, a Supreme Court vacancy also would occur if a Justice were removed by Congress through the As noted above, a Supreme Court vacancy also would occur if a Justice were removed by Congress through the
impeachment process, but no Justice has ever been removed from the Court in this way. For a comprehensive review of impeachment process, but no Justice has ever been removed from the Court in this way. For a comprehensive review of
how and why past Supreme Court Justices have left the Court, see Ward, how and why past Supreme Court Justices have left the Court, see Ward, Deciding To Leave, pp. 25-223. Ward, in , pp. 25-223. Ward, in
introduction at p. 7, explained that his book, among other things, examines the extent to which Justices, in their introduction at p. 7, explained that his book, among other things, examines the extent to which Justices, in their
retirement decisions, have been retirement decisions, have been “"motivated by strategic, partisan, personal, and institutional concerns.motivated by strategic, partisan, personal, and institutional concerns.”
25" 24. For a book-length examination of how several recent Presidents have selected nominees to serve on the Supreme For a book-length examination of how several recent Presidents have selected nominees to serve on the Supreme
Court, see David Alistair Yalof, Court, see David Alistair Yalof, Pursuit of Justices: Presidential Politics and the Selection of Supreme Court Nominees
(Chicago: (University of Chicago Press, 1999). (Hereinafter cited as Yalof, University of Chicago Press, 1999). (Hereinafter cited as Yalof, Pursuit of Justices.) See also Greenburg, .) See also Greenburg,
Supreme Conflict, which examined in depth the processes followed by the Administrations of Presidents Ronald , which examined in depth the processes followed by the Administrations of Presidents Ronald
Reagan, George H. W. Bush, Reagan, George H. W. Bush, William J.Bill Clinton, and George W. Bush in selecting Supreme Court nominees; and Clinton, and George W. Bush in selecting Supreme Court nominees; and
Christine L. Nemacheck, Christine L. Nemacheck, Strategic Selection: Presidential Nomination of Supreme Court Justices from Herbert Hoover
Through George W. Bush ( (Charlottesville, VA: University of Virginia Press, 2007).University of Virginia Press, 2007).
26 25. Article II, Section 2, clause 2 of the U.S. Constitution. Article II, Section 2, clause 2 of the U.S. Constitution.
27 26. See, for example, John Ferling, See, for example, John Ferling, “"The Senate and Federal Judges: The Intent of the Founding Fathers,The Senate and Federal Judges: The Intent of the Founding Fathers,”" Capitol
Studies, vol. 2, Winter 1974, p. 66: , vol. 2, Winter 1974, p. 66: “"Since the convention acted at a time when nearly every state constitution, and the Since the convention acted at a time when nearly every state constitution, and the
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by contrast, have insisted that the Senate’s “advice and consent” role was meant to be strictly that
of determining, after the President’s selection had been made, whether to approve the President’s
choice.28 Bridging these opposing schools of thought, another scholar asserted that the “more
sensible reading of the term ‘advice’ is that it means that the Senate is constitutionally entitled to
give advice to a president on whom as well as what kinds of persons he should nominate to
certain posts, but this advice is not binding.”29 Historically, the degree to which Senate advice has
been sought or used has varied, depending on the President.
It is a common, though not universal, practice for Presidents, as a matter of courtesy, to consult
with Senate party leaders as well as with members of the Senate Judiciary Committee before
choosing a nominee.30 Senators who candidly inform a President of their objections to a
prospective nominee may help in identifying shortcomings in that candidate or the possibility of a
confirmation battle in the Senate, which the President might want to avoid. Conversely, input
from the Senate might draw new Supreme Court candidates to the President’s attention, or
provide additional reasons to nominate a person who already is on the President’s list of
prospective nominees.31

Articles of Confederation, permitted a legislative voice in the selection of judges, it is inconceivable that the delegates Articles of Confederation, permitted a legislative voice in the selection of judges, it is inconceivable that the delegates
could have intended something less than full Senate participation in the appointment process.could have intended something less than full Senate participation in the appointment process.”
28" 27. See, for example, Harris, See, for example, Harris, Advice and Consent of the Senate, p. 34: , p. 34: “"The debates in the Convention do not support the The debates in the Convention do not support the
thesis since advanced that the framers of the Constitution intended that the President should secure the advice—that is, thesis since advanced that the framers of the Constitution intended that the President should secure the advice—that is,
the recommendations—of the Senate or of individual members, before making a nomination.the recommendations—of the Senate or of individual members, before making a nomination.”
29" 28. Michael J. Gerhardt, Michael J. Gerhardt, The Federal Appointments Process ( (Durham, NC: Duke University Press, 2003), p. 33. Duke University Press, 2003), p. 33.
(Hereinafter cited as Gerhardt, (Hereinafter cited as Gerhardt, The Federal Appointment Process.) The Constitution, Gerhardt added, ) The Constitution, Gerhardt added, “"does not does not
mandate any formal prenomination role for the Senate to consult with the president; nor does it impose any obligation mandate any formal prenomination role for the Senate to consult with the president; nor does it impose any obligation
on the president to consult with the Senate prior to nominating people to confirmable posts. The Constitution does, on the president to consult with the Senate prior to nominating people to confirmable posts. The Constitution does,
however, make it clear that the president or his nominees may have to pay a price if he ignores the Senatehowever, make it clear that the president or his nominees may have to pay a price if he ignores the Senate’'s advice.s advice.”
Ibid.
30 “" Ibid. 29. "To a certain extent, presidents have always looked to the Senate for recommendations and subsequently relied on a To a certain extent, presidents have always looked to the Senate for recommendations and subsequently relied on a
nominee’nominee's backers there to help move the nomination through the Senate.s backers there to help move the nomination through the Senate.”" George L. Watson and John A. Stookey, George L. Watson and John A. Stookey,
Shaping America: The Politics of Supreme Court Appointments ( (New York, HarperCollins College Publishers, 1995), HarperCollins College Publishers, 1995),
p. 78. (Hereinafter cited as Watson and Stookey, p. 78. (Hereinafter cited as Watson and Stookey, Shaping America.).)
31 30. President Clinton President Clinton’'s search for a successor to retiring Justice Harry s search for a successor to retiring Justice Harry A. Blackmun, during the spring of 1994, is Blackmun, during the spring of 1994, is
illustrative of a President seeking and receiving Senate advice. According to one report, the President, as he came close illustrative of a President seeking and receiving Senate advice. According to one report, the President, as he came close
to a decision after holding his options to a decision after holding his options “"close to the vestclose to the vest”" for more than a month, for more than a month, “"began for the first time to consult began for the first time to consult
with leading senators about his top candidates for the Court seat and solicited advice about prospects for easy with leading senators about his top candidates for the Court seat and solicited advice about prospects for easy
confirmation.confirmation.”" The advice he received included The advice he received included “"sharp Republican opposition to one of his leading choices, Interior sharp Republican opposition to one of his leading choices, Interior
Secretary Bruce Babbitt.Secretary Bruce Babbitt.”" Gwen Ifill, Gwen Ifill, “"Clinton Again Puts Off Decision on Nominee for Court,Clinton Again Puts Off Decision on Nominee for Court,”" The New York Times, ,
May 11, 1994, p. A16. May 11, 1994, p. A16.
In 2005, the Administration of President George W. Bush engaged in a level of consultation with Senators over In 2005, the Administration of President George W. Bush engaged in a level of consultation with Senators over
prospective Supreme Court nominations that White House officials called unprecedented. Prior to the Presidentprospective Supreme Court nominations that White House officials called unprecedented. Prior to the President’s
's nominations to the Court of John nominations to the Court of John G. Roberts Jr.Roberts, Harriet , Harriet E. Miers, and Samuel Miers, and Samuel A. Alito Jr., the President and his aides Alito Jr., the President and his aides
reportedly consulted with, and sought input from, the vast majority of the Senatereportedly consulted with, and sought input from, the vast majority of the Senate’'s Members. Prior to announcing the s Members. Prior to announcing the
Miers nomination, for instance, it was reported that Miers nomination, for instance, it was reported that “"the President and his staff talked with more than 80 Senators.the President and his staff talked with more than 80 Senators.”
" Deb Riechmann, Deb Riechmann, “"Bush Expected to Name High Court Nominee,Bush Expected to Name High Court Nominee,”" Associated Press Online, September 30, 2005, Associated Press Online, September 30, 2005, at
http://www.nexis.com. According to a White House spokesman, the more than 80 Senators included all 18 members of http://www.nexis.com. According to a White House spokesman, the more than 80 Senators included all 18 members of
the Senate Judiciary Committee and over two-thirds of Senate Democrats. Steve Holland, the Senate Judiciary Committee and over two-thirds of Senate Democrats. Steve Holland, “"Bush Completes Bush Completes
Consultations, Nears Court Decision,Consultations, Nears Court Decision,”" Reuters News, September 30, 2005, Reuters News, September 30, 2005, at http://global.factiva.comhttp://global.factiva.com. .
Likewise, in 2009, President Barack Obama consulted Senators prior to selecting Sonia Sotomayor to succeed outgoing Likewise, in 2009, President Barack Obama consulted Senators prior to selecting Sonia Sotomayor to succeed outgoing
Justice David Souter. Announcing the nomination of Judge Sotomayor to the Court, President Obama said the selection Justice David Souter. Announcing the nomination of Judge Sotomayor to the Court, President Obama said the selection
process had been process had been “"rigorous and extensiverigorous and extensive”" and included seeking and included seeking “"the advice of Members of Congress on both sides of the advice of Members of Congress on both sides of
the aisle, including every member of the Senate Judiciary Committee.the aisle, including every member of the Senate Judiciary Committee.”" U.S. President (Obama, Barack H.), U.S. President (Obama, Barack H.), “"Remarks Remarks
on the Nomination of Sonia Sotomayor To Be a Supreme Court Associate Justice,on the Nomination of Sonia Sotomayor To Be a Supreme Court Associate Justice,”" Daily Compilation of Presidential
Documents, May 26, 2009, DCPD-200900402, p. 1., May 26, 2009, DCPD-200900402, p. 1.
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As a rule, Presidents are also careful to consult with a candidate’s home-state Senators, especially
if they are of the same political party as the President. The reason for such care is due to the long-
standing custom of “senatorial courtesy,” whereby Senators, in the interests of collegiality, are
inclined, though not bound, to support a Senate colleague who opposes a presidential nominee
from that Member’s state. While usually invoked by home-state Senators to block lower federal
court nominees whom they find unacceptable, the custom of “senatorial courtesy” has sometimes
also played a part in the defeat of Supreme Court nominations.32
Besides giving private advice to the President, Senators may also counsel a President publicly. A
Senator, for example, may use a Senate floor statement or issue a statement to the news media
indicating support for, or opposition to, a potential Court nominee, or type or quality of nominee,
for the purpose of attracting the President’s attention and influencing the President’s choice.33
Advice from Other Sources
Advice, it should be noted, may come to Presidents not only from the Senate but from many other
sources. One key source of influence may be high-level advisers within the President’s
Administration.34 Others who may provide advice include House Members, party leaders, interest

32 “

More recently, President Biden stated that he sought the advice of Senators from both political parties in considering nominees for the Breyer vacancy. He explained, "I've invited senators of both parties to offer their ideas and points of view, and I've met with a number of them. As a result, because I truly respect not only the consent—I know they give consent, but it says—the Constitution [also] says 'advice and consent,' and I sought the advice of Democrats and Republicans." The White House, "Remarks by President Biden on his Nomination of Judge Ketanji Brown Jackson to Serve as Associate Justice of the U.S. Supreme Court," February 25, 2022, https://bidenwhitehouse.archives.gov/briefing-room/speeches-remarks/2022/02/25/remarks-by-president-biden-on-his-nomination-of-judge-ketanji-brown-jackson-to-serve-as-associate-justice-of-the-u-s-supreme-court.

31. "Numerous instances of the application of senatorial courtesy are on record, with the practice at least partially Numerous instances of the application of senatorial courtesy are on record, with the practice at least partially
accounting for rejection of several nominations to the Supreme Court.accounting for rejection of several nominations to the Supreme Court.”" Henry J. Abraham, Henry J. Abraham, Justices, Presidents and
Senators: A History of the U.S. Supreme Court Appointments from Washington to Clinton, new and rev. ed. (, new and rev. ed. (New
York: Rowman & Littlefield Publishers, 1999), pp. 19-20. (Hereinafter cited as Abraham, Rowman & Littlefield Publishers, 1999), pp. 19-20. (Hereinafter cited as Abraham, Justices, Presidents and
Senators.) Senatorial courtesy, Abraham wrote, appeared to have been the sole factor in President Grover Cleveland.) Senatorial courtesy, Abraham wrote, appeared to have been the sole factor in President Grover Cleveland’s
's unsuccessful nominations of William B. Hornblower (1893) and Wheeler H. Peckham (1894), both of New York. Each unsuccessful nominations of William B. Hornblower (1893) and Wheeler H. Peckham (1894), both of New York. Each
was rejected by the Senate after Senator David B. Hill (D-NY) invoked senatorial courtesy.was rejected by the Senate after Senator David B. Hill (D-NY) invoked senatorial courtesy.
33 32. In 1987, for instance, some Senators publicly warned President Reagan that he could expect problems in the Senate if In 1987, for instance, some Senators publicly warned President Reagan that he could expect problems in the Senate if
he nominated U.S. appellate court judge Robert he nominated U.S. appellate court judge Robert H. Bork to replace vacating Justice Lewis Bork to replace vacating Justice Lewis F. Powell. Among them, Powell. Among them,
Sen. Robert C. Byrd (D-WV) said the Reagan Administration would be Sen. Robert C. Byrd (D-WV) said the Reagan Administration would be “"inviting problemsinviting problems”" by nominating Bork. The by nominating Bork. The
chair of the Senate Judiciary Committee, chair of the Senate Judiciary Committee, Joseph R. Biden Jr.Joe Biden (D-DE), said that, while Bork was a (D-DE), said that, while Bork was a “"brilliant man,brilliant man,”" it did it did
“"not mean that there should be six or seven or eight or even five Borksnot mean that there should be six or seven or eight or even five Borks”" on the Court. Helen Dewar and Howard Kurtz, on the Court. Helen Dewar and Howard Kurtz,
“"Byrd Threatens Stall on Court Confirmation,Byrd Threatens Stall on Court Confirmation,”" The Washington Post, June 30, 1987, p. A7. In what was regarded as a , June 30, 1987, p. A7. In what was regarded as a
thinly veiled reference to a possible Bork nomination, Senate Majority Whip Alan Cranston (D-CA) called on Senate thinly veiled reference to a possible Bork nomination, Senate Majority Whip Alan Cranston (D-CA) called on Senate
Democrats to form a Democrats to form a “"solid phalanxsolid phalanx”" to block an to block an “"ideological court coupideological court coup”" by President Reagan. Al Kamen and Ruth by President Reagan. Al Kamen and Ruth
Marcus, Marcus, “"Nomination to Test Senate Role in Shaping of Supreme Court,Nomination to Test Senate Role in Shaping of Supreme Court,”" The Washington Post, July 1, 1987, p. A9. , July 1, 1987, p. A9.
President Reagan, nonetheless, nominated Judge Bork, only to have the nomination meet widespread Senate opposition President Reagan, nonetheless, nominated Judge Bork, only to have the nomination meet widespread Senate opposition
and ultimate Senate rejection.and ultimate Senate rejection.
34 33. Modern Presidents, one scholar wrote, Modern Presidents, one scholar wrote, “"are often forced to arbitrate among factions within their own administrations, are often forced to arbitrate among factions within their own administrations,
each pursuing its own interests and agendas.each pursuing its own interests and agendas.”" In recent Administrations, he maintained, the final choice of a nominee In recent Administrations, he maintained, the final choice of a nominee
“"has usually reflected one advisorhas usually reflected one advisor’'s hard-won victory over his rivals, without necessarily accounting for the presidents hard-won victory over his rivals, without necessarily accounting for the president’s
's other political interests.other political interests.”" Yalof, Yalof, Pursuit of Justices, p. 3. During the G.H.W. Bush presidency, for example, several of , p. 3. During the G.H.W. Bush presidency, for example, several of
the Presidentthe President’'s advisors disagreed as to their first preference for the Brennan vacancy. Of potential nominees, s advisors disagreed as to their first preference for the Brennan vacancy. Of potential nominees,
“"eventually the names were winnowed to two: David Souter and Edith Jones of the Fifth Circuit Court of Appeals. eventually the names were winnowed to two: David Souter and Edith Jones of the Fifth Circuit Court of Appeals. ‘'The The
one that was really pushing very strongly for [Souter] was [White House Counsel] Boyden [Gray]one that was really pushing very strongly for [Souter] was [White House Counsel] Boyden [Gray]’', ... when President , ... when President
Bush took a straw poll of his judicial selection team (Sununu, Gray, Thornburgh, and Vice President Dan Quayle), the Bush took a straw poll of his judicial selection team (Sununu, Gray, Thornburgh, and Vice President Dan Quayle), the
result was a split decision. Thornburg recalls that he and Gray supported Souter, while Sununu and Quayle preferred result was a split decision. Thornburg recalls that he and Gray supported Souter, while Sununu and Quayle preferred
Jones.Jones.”" Barbara A. Perry and Henry J. Abraham, Barbara A. Perry and Henry J. Abraham, “"From Oral History to Oral Argument: George BushFrom Oral History to Oral Argument: George Bush’'s Supreme Court s Supreme Court
Appointments,Appointments,”" in in 41: Inside the Presidency of George H.W. Bush, ed. Michael Nelson and Barbara A. Perry (, ed. Michael Nelson and Barbara A. Perry (Ithaca:
Cornell University Press, 2014), pp. 170-171 (hereinafter cited as Perry and Abraham, Cornell University Press, 2014), pp. 170-171 (hereinafter cited as Perry and Abraham, Oral History to Oral Argument).).
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groups,35 news media commentators, and, periodically, Justices already on the Court.36 Presidents
are free to consult with, and receive advice from, whomever they choose.
Criteria for Selecting a Nominee
While the precise criteria used in selecting a Supreme Court nominee vary from President to
President, two general motivations appear to underlie the choices of almost every President. One
is the desire to have the nomination serve the President’s political interests (in the partisan and
electoral senses of the word “political,” as well as in the public policy sense); the second is to
demonstrate that a search was successfully made for a nominee having the highest professional
qualifications.
Political Considerations
Virtually every President is presumed to take into account a wide range of political considerations
when faced with the responsibility of filling a Supreme Court vacancy. For instance, most
Presidents, it is assumed, will be inclined to select a nominee whose political or ideological views
appear compatible with their own. Specifically, “Presidents are, for the most part, results-
oriented. This means that they want Justices on the Court who will vote to decide cases consistent
with the president’s policy preferences.”37
The President also may consider whether a prospective nomination will be pleasing to the
constituencies upon whom he especially relies for political support or whose support he would
like to attract.38 For political or other reasons, nominee attributes such as party affiliation,
ideological orientation, geographic origin, ethnicity, religion, and gender may be of particular
importance to a President.39 A President also might take into account whether the existing

35 34. For example, President Trump, in selecting Brett Kavanaugh to fill the vacancy created by Justice Anthony For example, President Trump, in selecting Brett Kavanaugh to fill the vacancy created by Justice Anthony
Kennedy’Kennedy's retirement, reportedly s retirement, reportedly “"made his pick from a list of more than two dozen potential nominees drawn up with made his pick from a list of more than two dozen potential nominees drawn up with
help from conservative legal activists at the Federalist Society and The Heritage Foundation.help from conservative legal activists at the Federalist Society and The Heritage Foundation.”" Scott Horsley, Scott Horsley, “"Trump Trump
Taps Brett Kavanaugh As His Taps Brett Kavanaugh As His 2nd2^nd Supreme Court Pick, Supreme Court Pick,”" National Public Radio, July 9, 2018, , July 9, 2018, at https://www.npr.org/https://www.npr.org/
2018/07/09/624727227/trump-to-name-his-second-supreme-court-pick2018/07/09/624727227/trump-to-name-his-second-supreme-court-pick.
36. 35. For numerous examples of Justices advising Presidents regarding Supreme Court appointments, both in the For numerous examples of Justices advising Presidents regarding Supreme Court appointments, both in the 19th and
20th19^th and 20^th centuries, see Abraham, centuries, see Abraham, Justices, Presidents and Senators, pp. 21-23; see also in Abraham, pp. 21-23; see also in Abraham’'s earlier work, s earlier work, Justices
and Presidents, pp. 186-187 (Chief Justice William Howard Taft, pp. 186-187 (Chief Justice William Howard Taft’'s influence over President Warren G. Harding); pp. s influence over President Warren G. Harding); pp.
233-234 (Justice Felix Frankfurter233-234 (Justice Felix Frankfurter’'s advice to President Franklin D. Roosevelt); p. 243 (former Chief Justice Charles s advice to President Franklin D. Roosevelt); p. 243 (former Chief Justice Charles
Evans HughesEvans Hughes’'s and former Justice Owen s and former Justice Owen J. Roberts’Roberts's advice to President Harry S Truman); and pp. 305-306 (Chief s advice to President Harry S Truman); and pp. 305-306 (Chief
Justice Warren BurgerJustice Warren Burger’'s advice to President Richard M. Nixon). s advice to President Richard M. Nixon).
37 36. Watson and Stookey, Watson and Stookey, Shaping America, pp. 58-59., pp. 58-59.
38 37. Judge Amy Coney Judge Amy Coney BarretBarrett, for example, reportedly may have been selected by President Trump in part because of her , for example, reportedly may have been selected by President Trump in part because of her
potential political appeal to some of the voters to whom President Trump himself was appealing during his 2020 potential political appeal to some of the voters to whom President Trump himself was appealing during his 2020
reelection bid. Along these lines, it has been reported that reelection bid. Along these lines, it has been reported that “"Trump and his allies are itching for another fight over Trump and his allies are itching for another fight over
Barrett’Barrett's [religious] faith, seeing it as a windfall that would backfire on Democrats. Catholic voters in Pennsylvania, in s [religious] faith, seeing it as a windfall that would backfire on Democrats. Catholic voters in Pennsylvania, in
particular, are viewed as a pivotal demographic in the swing state that Biden, also a Catholic, is trying to recapture.particular, are viewed as a pivotal demographic in the swing state that Biden, also a Catholic, is trying to recapture.”
Zeke Miller, Lisa Mascaro, and Mary Clare Jalonick, “" Zeke Miller et al., "Trump taps Trump taps ‘'eminently qualifiedeminently qualified’' Barrett for Supreme Court, Barrett for Supreme Court,”
" Associated Press, September 26, 2020, Associated Press, September 26, 2020, at https://apnews.com/article/us-supreme-court-michael-pence-archive-courts-https://apnews.com/article/us-supreme-court-michael-pence-archive-courts-
donald-trump-e2678a13cf3d2383300db6f1416664d6donald-trump-e2678a13cf3d2383300db6f1416664d6.
39. 38. Considerations of geographic representation, for example, influenced President George Washington in 1789, to Considerations of geographic representation, for example, influenced President George Washington in 1789, to
divide his first six appointments to the Court between three nominees from the North and three from the South. See divide his first six appointments to the Court between three nominees from the North and three from the South. See
Watson and Stookey, Watson and Stookey, Shaping America, p. 60, and Abraham, , p. 60, and Abraham, Justices, Presidents, and Senators, pp. 59-60. In terms of , pp. 59-60. In terms of
demographic representation, President Reagan in 1981, for example, was sensitive to the absence of any female demographic representation, President Reagan in 1981, for example, was sensitive to the absence of any female
Justices on the Court. In announcing his choice of Sandra Day OJustices on the Court. In announcing his choice of Sandra Day O’'Connor to replace vacating Justice Potter Stewart, Connor to replace vacating Justice Potter Stewart,
President Reagan noted that President Reagan noted that “"during my campaign for the Presidency, I made a commitment that one of my first appointments to the Supreme Court vacancy would be the most qualified woman that I could possibly find." U.S. President (Reagan), "Remarks Announcing the Intention To Nominate Sandra Day O'during my campaign for the Presidency, I made a commitment that one of my first
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“balance” among the Court’s members (in a political party, ideological, demographic, or other
sense) should be maintained or altered.40 The prospects for a potential nominee receiving Senate
confirmation are another consideration. Even if a controversial nominee is believed to be
confirmable, an assessment must be made as to whether the benefits of confirmation will be
worth the costs of the political battle to be waged.41
Professional Qualifications
Most Presidents also want their Supreme Court nominees to have unquestionably outstanding
legal qualifications. Presidents look for a high degree of merit in their nominees not only in
recognition of the demanding nature of the work that awaits someone appointed to the Court,42
but also because of the public’s expectations that a Supreme Court nominee be highly qualified.43
With such expectations of excellence, Presidents often present their nominees as the best person,
or among the best persons, available.44 Many nominees, as a result, have distinguished themselves

appointments to the Supreme Court vacancy would be the most qualified woman that I could possibly find.” U.S.
President (Reagan), “Remarks Announcing the Intention To Nominate Sandra Day O’Connor To Be an Associate Connor To Be an Associate
Justice of the Supreme Court of the United States, July 7, 1981,Justice of the Supreme Court of the United States, July 7, 1981,”" Public Papers of the Presidents of the United States,
Ronald Reagan, 1981 ( (Washington: GPO, 1982), p. 596. GPO, 1982), p. 596.
40President Biden made a similar commitment during the Democratic presidential primary in 2020, promising to appoint the first Black woman to the Court. Gillian Brockell, "Joe Biden is making a Supreme Court promise. Ronald Reagan did, too," Washington Post, February 26, 2020, https://www.washingtonpost.com/history/2020/02/26/joe-biden-ronald-reagan-woman-supreme-court. 39. According to one report, for example, President Trump nominated Brett Kavanaugh to the Court as he sought According to one report, for example, President Trump nominated Brett Kavanaugh to the Court as he sought “"to to
shift the nationshift the nation’'s highest court further to the [ideological] right.s highest court further to the [ideological] right.”" Associated Press, Associated Press, “"Trump announces nomination of Trump announces nomination of
Judge Brett Kavanaugh for Supreme Court,Judge Brett Kavanaugh for Supreme Court,”" July 10, 2018, https://www.mprnews.org/story/2018/07/09/trump-names- July 10, 2018, https://www.mprnews.org/story/2018/07/09/trump-names-
supreme-court-pick-brett-kavanaugh. Additionally, it was reported at the time of the Barrett nomination that it set supreme-court-pick-brett-kavanaugh. Additionally, it was reported at the time of the Barrett nomination that it set
“"another milestone in Trumpanother milestone in Trump’'s rightward shift of the top U.S. judicial body.s rightward shift of the top U.S. judicial body.”" Steve Holland Steve Holland, Lawrence Hurley, and
Andrew Chung, “ et al., "Trump picks Barrett as he moves to tilt U.S. Supreme Court rightward,Trump picks Barrett as he moves to tilt U.S. Supreme Court rightward,”" Reuters, September 26, 2020, Reuters, September 26, 2020,
at https://www.reuters.com/article/us-usa-court-trump/trump-picks-barrett-as-he-moves-to-tilt-u-s-supreme-court-https://www.reuters.com/article/us-usa-court-trump/trump-picks-barrett-as-he-moves-to-tilt-u-s-supreme-court-
rightward-idUSKBN26H0GIrightward-idUSKBN26H0GI.
41 While the “. 40. While the "desire to appoint justices sympathetic to their own ideological and policy views may drive most desire to appoint justices sympathetic to their own ideological and policy views may drive most
presidents in selecting judges,presidents in selecting judges,”" the field of potentially acceptable nominees for most the field of potentially acceptable nominees for most presidentsPresidents, according to Watson , according to Watson
and Stookey, is narrowed down by at least five and Stookey, is narrowed down by at least five “"subsidiary motivationssubsidiary motivations”"—(1) rewarding personal or political support, —(1) rewarding personal or political support,
(2) representing certain interests, (3) cultivating political support, (4) ensuring a safe nominee, and (5) picking the most (2) representing certain interests, (3) cultivating political support, (4) ensuring a safe nominee, and (5) picking the most
qualified nominee. Watson and Stookey, qualified nominee. Watson and Stookey, Shaping America, p. 59., p. 59.
42 41. Commenting on the nature of the Court Commenting on the nature of the Court’'s work, and the degree of qualification required of those who serve on the s work, and the degree of qualification required of those who serve on the
Court, the ABA states the following: Court, the ABA states the following: “"The significance, range and complexity of the issues considered by the justices, The significance, range and complexity of the issues considered by the justices,
as well as the finality and nation-wide impact of the Supreme Courtas well as the finality and nation-wide impact of the Supreme Court’'s decisions, are among the factors that require the s decisions, are among the factors that require the
appointment of a nominee of exceptional ability.appointment of a nominee of exceptional ability.”" American Bar Association, American Bar Association, ABA Standing Committee on the Federal
Judiciary: What It Is and How it Works, p. 10, , p. 10, at http://www.americanbar.org/content/dam/aba/uncategorized/GAO/http://www.americanbar.org/content/dam/aba/uncategorized/GAO/
Backgrounder.authcheckdam.pdfBackgrounder.authcheckdam.pdf.
43. 42. One of the One of the “"unwritten codes,unwritten codes,”" two scholars on the judiciary have written, two scholars on the judiciary have written, “"is that a judicial appointment is different is that a judicial appointment is different
from run-of-the-mill patronage. Thus, although the political rules may allow a president to reward an old ally with a from run-of-the-mill patronage. Thus, although the political rules may allow a president to reward an old ally with a
seat on the bench, even here tradition has created an expectation that the would-be judge have some reputation for seat on the bench, even here tradition has created an expectation that the would-be judge have some reputation for
professional competence, the more so as the judgeship in question goes from the trial court to the appeals court to the professional competence, the more so as the judgeship in question goes from the trial court to the appeals court to the
Supreme Court level.Supreme Court level.”" Robert A. Carp and Ronald A. Stidham, Robert A. Carp and Ronald A. Stidham, Judicial Process in America, , 3rd ed. (Washington: CQ
3^rd ed. (CQ Press, 1996), pp. 240-241.Press, 1996), pp. 240-241.
44 43. President Gerald R. Ford, for example, said he believed his nominee, U.S. appellate court judge John Paul Stevens, President Gerald R. Ford, for example, said he believed his nominee, U.S. appellate court judge John Paul Stevens,
“"to be best qualified to serve as an Associate Justice of the Supreme Court.to be best qualified to serve as an Associate Justice of the Supreme Court.”" U.S. President (Ford), U.S. President (Ford), “"Remarks Remarks
Announcing Intention To Nominate John Paul Stevens To Be an Associate Justice of the Supreme Court, Announcing Intention To Nominate John Paul Stevens To Be an Associate Justice of the Supreme Court,
November 28, 1975,November 28, 1975,”" Public Papers of the Presidents of the United States, Gerald R. Ford, 1975, Book II , Book II
(Washington: (GPO, 1977), p. 1917. And President Obama, for example, stated that his nominee, U.S. appellate court GPO, 1977), p. 1917. And President Obama, for example, stated that his nominee, U.S. appellate court
judge Merrick Garland, is judge Merrick Garland, is “"widely recognizedwidely recognized”" as as “"one of Americaone of America’'s sharpest legal mindss sharpest legal minds”" and someone who is and someone who is
“"uniquely prepareduniquely prepared”" to serve as a Justice on the Supreme Court. U.S. President (Obama), to serve as a Justice on the Supreme Court. U.S. President (Obama), “"Remarks by the President Remarks by the President
Announcing Judge Merrick Garland as his Nominee to the Supreme Court,Announcing Judge Merrick Garland as his Nominee to the Supreme Court,”" March 16, 2016, Office of the Press March 16, 2016, Office of the Press
Secretary, The White House. President Trump characterized his Secretary, The White House. President Trump characterized his first nominee to the Court, Neil Gorsuch, as having nominee to the Court, Neil Gorsuch, as having
“"outstanding legal skills, a brilliant mind, [and] tremendous discipline ...outstanding legal skills, a brilliant mind, [and] tremendous discipline ...”" U.S. President (Trump), U.S. President (Trump), “"Full Transcript and Full Transcript and
Video: Trump Picks Neil Gorsuch for Supreme Court,Video: Trump Picks Neil Gorsuch for Supreme Court,”" New York Times, January 31, 2017. Most recently, , January 31, 2017. Most recently, President
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in the law (as lower court judges, legal scholars, or private practitioners) or have served as
Members of Congress, as federal administrators, or as governors.45 Although neither the
Constitution nor federal law requires that a Supreme Court Justice be a lawyer, every person
nominated to the Court thus far has been.46
After the President formally submits a nomination to the Senate (but prior to committee hearings
on the nomination), the nominee is evaluated by the American Bar Association’s Standing
Committee on the Federal Judiciary. The committee stresses that an evaluation focuses strictly on
the candidate’s “professional qualifications: integrity, professional competence and judicial
temperament” and does “not take into account [his or her] philosophy, political affiliation or
ideology.”47
Figure 1 reports, from 1945 to the present, the type of professional position or occupation held by
an individual at the time of his or her nomination to the Supreme Court.48 So, for example, at the
time of his nomination by President Truman in 1945, Harold H. Burton was serving as a U.S.
Senator from Ohio. Since 1945, the most common type of professional experience at the time of
his or her nomination has been service as a federal appellate court judge (25, or 64%, of 39
nominees),49 followed by service as an official in the executive branch (8, or 21%, of 39

Trump described Brett Kavanaugh as having “impeccable credentials, unsurpassed qualifications, and a proven
commitment to equal justice under the law.” President Donald Trump, “Remarks by President Trump Announcing
Judge Brett M. Kavanaugh as the Nominee for Associate Justice of the Supreme Court of the United States,” The White
House – Briefings and Statements, July 9, 2018, at https://www.whitehouse.gov/briefings-statements/remarks-
president-trump-announcing-judge-brett-m-kavanaugh-nominee-associate-justice-supreme-court-united-states.
45during President Biden's announcement of Ketanji Brown Jackson as his nominee to fill the anticipated Breyer vacancy, the President characterized Jackson as having "extraordinary qualifications" and a "uniquely qualified and wide-ranging background." The White House, "Remarks by President Biden on his Nomination of Judge Ketanji Brown Jackson to Serve as Associate Justice of the U.S. Supreme Court," February 25, 2022, https://bidenwhitehouse.archives.gov/briefing-room/speeches-remarks/2022/02/25/remarks-by-president-biden-on-his-nomination-of-judge-ketanji-brown-jackson-to-serve-as-associate-justice-of-the-u-s-supreme-court. 44. For lists of the professional, educational, and political backgrounds of every Justice serving on the Court from 1790 For lists of the professional, educational, and political backgrounds of every Justice serving on the Court from 1790
to 2007, see Epstein, to 2007, see Epstein, Supreme Court Compendium, pp. 291-341.pp. 291-341.
46 45. A legal scholar notes that while the Constitution A legal scholar notes that while the Constitution “"does not preclude a president from nominating nonlawyers to key does not preclude a president from nominating nonlawyers to key
Justice Department posts or federal judgeships,Justice Department posts or federal judgeships,”" the delegates to the constitutional convention and the ratifiers the delegates to the constitutional convention and the ratifiers “"did did
occasionally express their expectation that a president would nominate qualified people to federal judgeships and occasionally express their expectation that a president would nominate qualified people to federal judgeships and
other important governmental offices; but those comments were expressions of hope and concern about the other important governmental offices; but those comments were expressions of hope and concern about the
consequences of and the need to devise a check against a presidentconsequences of and the need to devise a check against a president’'s failure to nominate qualified people, particularly s failure to nominate qualified people, particularly
in the absence of any constitutionally required minimal criteria for certain positions.in the absence of any constitutionally required minimal criteria for certain positions.”" Gerhardt, Gerhardt, The Federal
Appointments Process, p. 35., p. 35.
47 46. American Bar Association American Bar Association, The ABA Standing Committee on the Federal Judiciary: What It Is and How It Works, p. , p.
1, at 1, http://www.abanet.org/scfedjud/federal_judiciary09.pdfhttp://www.abanet.org/scfedjud/federal_judiciary09.pdf. . The role of the ABA in evaluating the PresidentThe role of the ABA in evaluating the President’s
's nominee is discussed further in CRS Report R44236, nominee is discussed further in CRS Report R44236, Supreme Court Appointment Process: Consideration by the
Senate Judiciary Committee, by Barry J. McMillion., by Barry J. McMillion.
48 47. Consequently, the table does not indicate every occupation or profession held by a nominee. Justice Vinson, for Consequently, the table does not indicate every occupation or profession held by a nominee. Justice Vinson, for
example, was serving as Secretary of the Treasury at the time of his nomination to the Court—but his professional example, was serving as Secretary of the Treasury at the time of his nomination to the Court—but his professional
experiences prior to his nomination also included service as a U.S. representative from Kentucky, a county prosecutor, experiences prior to his nomination also included service as a U.S. representative from Kentucky, a county prosecutor,
and work as an attorney in private practice.and work as an attorney in private practice.
49 Of the 25 48. Of the 26 nominees who were serving as U.S. circuit court judges at the time of being nominated to the Supreme nominees who were serving as U.S. circuit court judges at the time of being nominated to the Supreme
Court, the average number of years of service as a circuit court judge prior to a President announcing their nomination Court, the average number of years of service as a circuit court judge prior to a President announcing their nomination
was 7.was 7.31 years (the median was 6.9 years). The five nominees who served as circuit court judges for the least amount of years (the median was 6.9 years). The five nominees who served as circuit court judges for the least amount of
time prior to having their nomination to the Court announced by a President were David Souter (time prior to having their nomination to the Court announced by a President were David Souter (who served less than 3 served less than 3
months,months and was nominated by President G.H.W. Bush) nominated by President G.H.W. Bush),; G. Harrold Carswell (7 months, President Nixon) G. Harrold Carswell (7 months, President Nixon), Charles E.
Whittaker (9; Ketanji Brown Jackson (8 months, President months, President Eisenhower), John Marshall Harlan IIBiden); Charles Whittaker (9 months, President Eisenhower) (9 months, President Eisenhower), and Douglas
H. Ginsburg (1 year, President Reagan; and John Marshall Harlan II (9 months, President Eisenhower). Of the five, Carswell ). Of the five, Carswell and Ginsburg werewas the sole nominee not confirmed. not confirmed. The five nominees The five nominees
who served as circuit court judges for the greatest amount of time prior to having their nomination to the Court who served as circuit court judges for the greatest amount of time prior to having their nomination to the Court
announced by a President were Merrick Garland (19 years, nominated by President Obama), Samuel Alito Jr. (15.5 announced by a President were Merrick Garland (19 years, nominated by President Obama), Samuel Alito Jr. (15.5
years, G.W. Bush), Stephen Breyer (13.4 years, Clinton), Warren years, G.W. Bush), Stephen Breyer (13.4 years, Clinton), Warren E. Burger (13.2 years, Nixon), and Ruth Bader Burger (13.2 years, Nixon), and Ruth Bader
Ginsburg (13.0 years, Clinton).
The most recent nominee to the Court, Amy Coney Barrett, served approximately 2.9 years as a circuit court judge
prior to her nomination.
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nominees).50 Overall, at least since 1945, it has been relatively rare for a nominee, at the time of
nomination, to be serving as a state judge, working as an attorney in private practice, or holding
elective office.
Note that the percentage of nominees serving as U.S. appellate court judges at the time of
nomination is even greater during relatively recent presidencies. From 1981 to the present, for
example, 15 (or 83%) of 18 nominees were serving as appellate judges immediately prior to
nomination.51 In contrast, since 1981, no nominees to the Court were engaged in private practice
or serving in elective office at the time of nomination.

50Ginsburg (13.0 years, Clinton). 49. The eight executive branch nominees include one who had served as White House Counsel (Harriet Miers), two as The eight executive branch nominees include one who had served as White House Counsel (Harriet Miers), two as
solicitor general of the United States (Elena Kagan, Thurgood Marshall), two as deputy or assistant attorneys general solicitor general of the United States (Elena Kagan, Thurgood Marshall), two as deputy or assistant attorneys general
(William Rehnquist, Byron White) and three as Cabinet (William Rehnquist, Byron White) and three as Cabinet secretariesSecretaries (Arthur Goldberg (Arthur Goldberg—, Secretary of LaborSecretary of Labor,; Tom Clark, Attorney General; and Tom
Clark—Attorney General, Frederick Vinson Frederick Vinson—, Secretary of the Treasury).Secretary of the Treasury).
51 50. One scholar has observed that One scholar has observed that “"[r]ather than following historical practice and nominating prominent politicians to the [r]ather than following historical practice and nominating prominent politicians to the
Court, presidents over the last several decades have used the courts, especially the federal circuit courts, as a primary Court, presidents over the last several decades have used the courts, especially the federal circuit courts, as a primary
and nearly exclusive recruiting pool.... Recent service on a U.S. court of appeals is certainly no guarantee of and nearly exclusive recruiting pool.... Recent service on a U.S. court of appeals is certainly no guarantee of
confirmation or an easy confirmation process, but recent presidents apparently believe that it contributes to confirmation or an easy confirmation process, but recent presidents apparently believe that it contributes to
confirmation success.confirmation success.”" Terri L. Peretti, Terri L. Peretti, “"Where have all the politicians gone? Recruiting for the modern Supreme Where have all the politicians gone? Recruiting for the modern Supreme
Court,Court,”" Judicature, vol. 91, no. 3, November-December 2007, pp. 112, 117., vol. 91, no. 3, November-December 2007, pp. 112, 117.
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Figure 1. Type of Professional Experience of U.S. Supreme Court Nominees at Time
of Nomination
(1945-Present)

Source: Congressional Research Service.
Notes: This figure identifies, for nominees to the U.S. Supreme Court from 1945 to the present, the type of
professional experience at the time of nomination to the Court.
* Nomination returned to or withdrawn by the President or rejected by the Senate.
** President announced intention to nominate but did not formally submit nomination to Senate.
*** Received recess appointment to the Court during the preceding calendar year. The year listed is the year in
which the nomination was approved by the Senate.
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A President’s search for professional excellence in a nominee rarely proceeds without also taking
political factors into account. Rather, “more typically,” a President “seeks the best person from
among a list of those who fulfill certain of these other [political] criteria and, of course, who share
a president’s vision of the nation and the Court.”52
Integrity and Impartiality
Closely related to the expectation that a Supreme Court nominee have excellent professional
qualifications are the ideals of integrity and impartiality in a nominee. Most Presidents
presumably will be aware of the historical expectation, dating back to Alexander Hamilton’s
pronouncements in the Federalist Papers, that a Justice be a person of integrity who is able to
approach cases and controversies impartially, without personal prejudice.53 In that same spirit, a
bipartisan study commission on judicial selection in 1996 declared that it was “most important” to
appoint judges who were not only learned in the law and conscientious in their work ethic but
who also possessed “what lawyers describe as ‘judicial temperament.’” This term, the
commission explained, “essentially has to do with a personality that is evenhanded, unbiased,
impartial, courteous yet firm, and dedicated to a process, not a result.”54 Accordingly, Presidents
sometimes will cite the integrity or fairness of Supreme Court nominees to buttress the case for
their appointment to the Court.55
Other Factors
Any given President also might single out other qualities as particularly important for a Supreme
Court nominee to have, as President Barack Obama did in 2009, when announcing his nomination
of Judge Sonia Sotomayor to the Court. In prefatory remarks to that announcement, President
Obama cited selection criteria similar to those mentioned by other recent Presidents, such as
“mastery of the law,” the “ability to hone in on the key issues and provide clear answers to
complex legal questions,” and “a commitment to impartial justice.”

52 Watson and Stookey, Shaping America, p. 64. Recently, for example, prior to the 2016 general election, Donald
Trump released a list of individuals he would consider nominating, if elected, to the Supreme Court. He stated “These
individuals were selected, first and foremost, based on constitutional principles, with input from respected conservative
leaders.” Donald J. Trump for President, press release, September 23, 2016, available at
https://www.donaldjtrump.com/press-releases/donald-j.-trump-adds-to-list-of-potential-supreme-court-justice-picks.
53 In Federalist Paper 78 (“Judges as Guardians of the Constitution”), Hamilton extolled the “ 51.

Watson and Stookey, Shaping America, p. 64. Recently, for example, prior to the 2016 general election, Donald Trump released a list of individuals he would consider nominating, if elected, to the Supreme Court. He stated "These individuals were selected, first and foremost, based on constitutional principles, with input from respected conservative leaders." Donald J. Trump for President, press release, September 23, 2016, https://www.donaldjtrump.com/press-releases/donald-j.-trump-adds-to-list-of-potential-supreme-court-justice-picks.

52.

President Biden, for example, stated that during his search for a nominee to fill the Breyer vacancy, he sought "someone with extraordinary character, who will bring to the Supreme Court an independent mind, uncompromising integrity" and "a strong moral compass." The White House, "Remarks by President Biden on his Nomination of Judge Ketanji Brown Jackson to Serve as Associate Justice of the U.S. Supreme Court," February 25, 2022, https://bidenwhitehouse.archives.gov/briefing-room/speeches-remarks/2022/02/25/remarks-by-president-biden-on-his-nomination-of-judge-ketanji-brown-jackson-to-serve-as-associate-justice-of-the-u-s-supreme-court.

53. In Federalist Paper 78 ("Judges as Guardians of the Constitution"), Hamilton extolled the "benefits of the integrity benefits of the integrity
and moderation of the Judiciary,and moderation of the Judiciary,”" which, he said, commanded which, he said, commanded “"the esteem and applause of all the virtuous and the esteem and applause of all the virtuous and
disinterested.disinterested.”" Further, he maintained, there could Further, he maintained, there could “"be but few menbe but few men”" in society who would in society who would “"unite the requisite integrity unite the requisite integrity
with the requisite knowledgewith the requisite knowledge”" to to “"qualify them for the stations of judges.qualify them for the stations of judges.”" Wright, Wright, The Federalist, p. 495 (first quote) , p. 495 (first quote)
and p. 496 (second quote).and p. 496 (second quote).
54 54. Miller Center of Public Affairs, Miller Center of Public Affairs, Improving the Process of Appointing Federal Judges: A Report of the Miller Center
Commission on the Selection of Federal Judges ( (Charlottesville, VA: University of Virginia, May 1996), p. 10.University of Virginia, May 1996), p. 10.
55 55. In 2005, for example, in announcing the nomination of Samuel In 2005, for example, in announcing the nomination of Samuel A. Alito Jr. to be an Associate Justice, President Alito Jr. to be an Associate Justice, President
George W. Bush said he was confident that the Senate would be impressed not only by Judge AlitoGeorge W. Bush said he was confident that the Senate would be impressed not only by Judge Alito’s “'s "distinguished distinguished
record”record" but also by his but also by his “"measured judicial temperament and his tremendous personal integrity.measured judicial temperament and his tremendous personal integrity.”" U.S. President (Bush, U.S. President (Bush,
George W.), George W.), “"Remarks Announcing the Nomination of Samuel Remarks Announcing the Nomination of Samuel A. Alito Jr., To Be an Associate Justice of the United Alito Jr., To Be an Associate Justice of the United
States Supreme Court,States Supreme Court,”" Weekly Compilation of Presidential Documents, vol. 41, November 7, 2005, p. 1626. In vol. 41, November 7, 2005, p. 1626. In
describing Merrick Garland, President Obama stated that Judge Garland describing Merrick Garland, President Obama stated that Judge Garland “"brings to his work a spirit of decency, brings to his work a spirit of decency,
modesty, integrity, even-handedness, and excellence.modesty, integrity, even-handedness, and excellence.”" U.S. President (Obama), U.S. President (Obama), “"Remarks by the President Announcing Remarks by the President Announcing
Judge Merrick Garland as his Nominee to the Supreme Court,Judge Merrick Garland as his Nominee to the Supreme Court,”" March 16, 2016, Office of the Press Secretary, The March 16, 2016, Office of the Press Secretary, The
White House. A recent nominee to the Court, Neil Gorsuch, was described by President Trump as having been White House. A recent nominee to the Court, Neil Gorsuch, was described by President Trump as having been “"taught taught
the value of independence, hard work and public service.the value of independence, hard work and public service.”" U.S. President (Trump), U.S. President (Trump), “"Full Transcript and Video: Trump Full Transcript and Video: Trump
Picks Neil Gorsuch for Supreme Court,Picks Neil Gorsuch for Supreme Court,”" New York Times, January 31, 2017., January 31, 2017.
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He added, however, that such qualities, while “essential” for anyone sitting on the Supreme
Court, “alone are insufficient,” and that “[w]e need something more.”56 An additional requisite
quality, President Obama said, was “experience,” which he explained was
Experience being tested by obstacles and barriers, by hardship and misfortune, experience
insisting, persisting, and ultimately, overcoming those barriers. It is experience that can
give a person a common touch and a sense of compassion, an understanding of how the
world works and how ordinary people live. And that is why it is a necessary ingredient in
the kind of Justice we need on the Supreme Court.57
A President, as well, may consider additional factors when the Supreme Court vacancy to be
filled is that of the Chief Justice. Besides requiring that a candidate be politically acceptable, have
excellent legal qualifications, and enjoy a reputation for integrity, a President might be concerned
that his nominee have proven leadership qualities necessary to effectively perform the tasks
specific to the position of Chief Justice. Such leadership qualities, in the President’s view, could
include administrative and human relations skills, with the latter especially important in fostering
collegiality among the Court’s members.58
The President also might look for distinction or eminence in a Chief Justice nominee sufficient to
command the respect of the Court’s other Justices, as well as to further public respect for the
Court. A President, too, might be concerned with the age of the Chief Justice nominee, requiring,
for instance, that the nominee be at least of a certain age (to insure an adequate degree of maturity
and experience relative to the other Justices) but not above a certain age (to allow for the likely
ability to serve as a leader on the Court for a substantial number of years).59
Background Investigations
An important part of the selection process involves investigating the background of prospective
nominees. In recent years the investigative effort generally has followed two primary tracks—one
concerned with the public record and professional credentials of a person under consideration, the
other with the candidate’s private background. The private background investigation, which
includes examination of a candidate’s personal financial affairs, is conducted by the Federal
Bureau of Investigation (FBI). The investigation into a candidate’s public record and professional

56 56. U.S. President (Obama, Barack H.), U.S. President (Obama, Barack H.), “"Remarks on the Nomination of Sonia Sotomayor To Be a Supreme Court Remarks on the Nomination of Sonia Sotomayor To Be a Supreme Court
Associate Justice,Associate Justice,”" Daily Compilation of Presidential Documents, May 26, 2009, DCPD-200900402, p. 1., May 26, 2009, DCPD-200900402, p. 1.
57 57. Ibid. President Obama Ibid. President Obama’'s announcement of his nomination of Merrick Garland included similar statements about the s announcement of his nomination of Merrick Garland included similar statements about the
need for a certain type of experience beyond a nomineeneed for a certain type of experience beyond a nominee’'s outstanding legal qualifications. President Obama stated s outstanding legal qualifications. President Obama stated “"At At
the same time, Chief Judge Garland is more than just a brilliant legal mind. Hethe same time, Chief Judge Garland is more than just a brilliant legal mind. He’'s someone who has a keen s someone who has a keen
understanding that justice is about more than abstract legal theory; more than some footnote in a dusty casebook. His understanding that justice is about more than abstract legal theory; more than some footnote in a dusty casebook. His
life experience ... informs his view that the law is more than an intellectual exercise. He understands the way law life experience ... informs his view that the law is more than an intellectual exercise. He understands the way law
affects the daily reality of peopleaffects the daily reality of people’'s lives.s lives.”" U.S. President (Obama), U.S. President (Obama), “"Remarks by the President Announcing Judge Remarks by the President Announcing Judge
Merrick Garland as his Nominee to the Supreme Court,Merrick Garland as his Nominee to the Supreme Court,”" March 16, 2016, Office of the Press Secretary, The White March 16, 2016, Office of the Press Secretary, The White
House.
58House. 58. The White House, "Remarks by President Biden on his Nomination of Judge Ketanji Brown Jackson to Serve as Associate Justice of the U.S. Supreme Court," February 25, 2022, https://bidenwhitehouse.archives.gov/briefing-room/speeches-remarks/2022/02/25/remarks-by-president-biden-on-his-nomination-of-judge-ketanji-brown-jackson-to-serve-as-associate-justice-of-the-u-s-supreme-court. 59. See, for example, Greenburg, See, for example, Greenburg, Supreme Conflict, pp. 238-243 (discussing the assessment of the Administration of , pp. 238-243 (discussing the assessment of the Administration of
President George W. Bush in 2005 that John President George W. Bush in 2005 that John G. Roberts’Roberts's leadership abilities and interpersonal skills were important s leadership abilities and interpersonal skills were important
qualities needed in a person under consideration for appointment to be Chief Justice).qualities needed in a person under consideration for appointment to be Chief Justice).
59 60. The selection of Earl Warren for Chief Justice by President Eisenhower, for example, was due in part to Mr. The selection of Earl Warren for Chief Justice by President Eisenhower, for example, was due in part to Mr.
Warren’Warren's relatively young age (62) at the time of appointment. According to one report, President Eisenhower s relatively young age (62) at the time of appointment. According to one report, President Eisenhower
indicated indicated “"that he had been looking over other [potential nominees], but felt they were too old for the post. Naturally, that he had been looking over other [potential nominees], but felt they were too old for the post. Naturally,
he said, he wanted a man who was healthy, strong, who had not had any serious illnesses, and who was relatively he said, he wanted a man who was healthy, strong, who had not had any serious illnesses, and who was relatively
young.young.”" Edward T. Folliard, Edward T. Folliard, “"Ike Names Warren to High Bench,Ike Names Warren to High Bench,”" The Washington Post, October 1, 1953, p. 2, col. 1., October 1, 1953, p. 2, col. 1.
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abilities ordinarily is headed by high Justice Department officials, White House aides, or both,
working together.
The investigative process may be preliminary in nature when the objective is to identify potential
candidates and consider their relative merits based on information already known or readily
available. The investigations become more intensive as the initial list is narrowed. The object then
becomes to learn as much as possible about the prospective nominees—to accurately gauge their
qualifications and their compatibility with the President’s specific requirements for a nominee,
and, simultaneously, to flag anything in their backgrounds that might be disqualifying or
jeopardize their chances for Senate confirmation. For help in evaluating the backgrounds of Court
candidates, Presidents sometimes also have enlisted the assistance of private lawyers,60 legal
scholars,61 or, on rare occasions, the American Bar Association (ABA).62 Near the culmination of
this investigative effort, the President might want to personally meet with one or more of the
candidates before finally deciding whom to nominate.63
During the prenomination phase, Presidents vary in the degree to which they publicly reveal the
names of individuals under consideration for the Court. Sometimes, Presidents seek to keep
confidential the identity of their Court candidates. Such secrecy may allow a President to reflect
on the qualifications of prospective nominees, and the background investigations to proceed,
away from the glare of publicity, news media coverage, and outside political pressures. Other
times, the White House may, at least in the early prenomination stage, reveal the names of
Supreme Court candidates being considered. Such openness may be intended to serve various
purposes—among them, to test public or congressional reaction to potential nominees, please

60 61. Perhaps the most extensive use of private attorneys for this purpose was made by President Clinton in the spring of Perhaps the most extensive use of private attorneys for this purpose was made by President Clinton in the spring of
1993 during his consideration of candidates to fill the Supreme Court seat of retiring Justice Byron White. President 1993 during his consideration of candidates to fill the Supreme Court seat of retiring Justice Byron White. President
Clinton, it was reported, utilized a team of 75 lawyers in the Washington, DC, area, who Clinton, it was reported, utilized a team of 75 lawyers in the Washington, DC, area, who “"pore[d] over briefs,pore[d] over briefs,”
" analyzed analyzed “"mountains of opinions and speechesmountains of opinions and speeches”" and and “"comb[ed] through financial records,comb[ed] through financial records,”" of the of the “"final contendersfinal contenders”" for for
the Court appointment—from whom the President ultimately selected U.S. appellate court judge Ruth Bader Ginsburg. the Court appointment—from whom the President ultimately selected U.S. appellate court judge Ruth Bader Ginsburg.
The team funneled their analyses to the White House counsel, The team funneled their analyses to the White House counsel, “"who, along with other aides, advised the president who, along with other aides, advised the president
during the search for a justice.during the search for a justice.”" Under the team Under the team’'s ground rules, its work was performed on a confidential basis, with s ground rules, its work was performed on a confidential basis, with
contact between its lawyers and White House aides prohibited. Private attorneys were relied on in this way at least contact between its lawyers and White House aides prohibited. Private attorneys were relied on in this way at least
partly because, at that early point in the Clinton presidency, a judicial search team for the Administration was not yet in partly because, at that early point in the Clinton presidency, a judicial search team for the Administration was not yet in
place in the Department of Justice. Daniel Klaidman, place in the Department of Justice. Daniel Klaidman, “"Who Are ClintonWho Are Clinton’'s Vetters, and Why the Big Secret?s Vetters, and Why the Big Secret?”" Legal
Times, vol. 16, June 21, 1993, pp. 1, 22-23., vol. 16, June 21, 1993, pp. 1, 22-23.
61 “ 62. "During President Gerald R. FordDuring President Gerald R. Ford’'s search to fill a high court vacancy, Attorney General Edward Levi discreetly s search to fill a high court vacancy, Attorney General Edward Levi discreetly
asked a small group of distinguished constitutional scholars to review opinions and other legal writings of a number of asked a small group of distinguished constitutional scholars to review opinions and other legal writings of a number of
candidates.candidates.”" Ibid. (Klaidman), p. 23. Ibid. (Klaidman), p. 23.
62 63. Three Presidents—Dwight D. Eisenhower in 1957, Richard M. Nixon in 1971, and Gerald R. Ford in 1975— Three Presidents—Dwight D. Eisenhower in 1957, Richard M. Nixon in 1971, and Gerald R. Ford in 1975—
requested the ABArequested the ABA’'s Standing Committee on Federal Judiciary to evaluate the names of prospective Supreme Court s Standing Committee on Federal Judiciary to evaluate the names of prospective Supreme Court
candidates. Typically, however, the ABA committee is not invited by an Administration to evaluate candidates under candidates. Typically, however, the ABA committee is not invited by an Administration to evaluate candidates under
consideration for nomination to the Court. Instead, the committee performs its evaluation role later, after the President consideration for nomination to the Court. Instead, the committee performs its evaluation role later, after the President
has selected a nominee, providing its evaluation of the nominee to the Senate Judiciary Committee prior to the start of has selected a nominee, providing its evaluation of the nominee to the Senate Judiciary Committee prior to the start of
confirmation hearings. See generally CRS Report 96-446, confirmation hearings. See generally CRS Report 96-446, The American Bar Association’'s Standing Committee on
Federal Judiciary: A Historical Overview, by Denis Steven Rutkus (out of print, available to congressional clients upon , by Denis Steven Rutkus (out of print, available to congressional clients upon
request from author; hereinafter cited as CRS Report 96-446, request from author; hereinafter cited as CRS Report 96-446, ABA Historical Overview), for a narrative tracing the ), for a narrative tracing the
evolution of the ABA committeeevolution of the ABA committee’'s role from the 1940s to 1995, and specifically pp. 8-9, 31-32, and 35 regarding its s role from the 1940s to 1995, and specifically pp. 8-9, 31-32, and 35 regarding its
role in advising Eisenhower, Nixon, and Ford, respectively.role in advising Eisenhower, Nixon, and Ford, respectively.
63 It has not been uncommon, at least during recent times, 64. In recent times, it has not been uncommon for a President to personally interview for a President to personally interview theirhis final candidates final candidates
before selecting a nominee. For example, President G.W. Bush interviewed five potential nominees to replace Sandra before selecting a nominee. For example, President G.W. Bush interviewed five potential nominees to replace Sandra
Day ODay O’'Connor.Connor.”" Greenburg, Greenburg, Supreme Conflict, p. 314. Similarly, Elena Kagan, nominated to the Court in 2010 by , p. 314. Similarly, Elena Kagan, nominated to the Court in 2010 by
President Obama, was reportedly one of four candidates whom the President interviewed (and President Obama, was reportedly one of four candidates whom the President interviewed (and “"was one of Mr. was one of Mr.
Obama’Obama's runners-ups runners-up”" the year before when he nominated Sonia Sotomayor to the Court). Peter Baker and Jeff Zeleny, the year before when he nominated Sonia Sotomayor to the Court). Peter Baker and Jeff Zeleny,
The New York Times, May 10, 2010, p. 1., May 10, 2010, p. 1.
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political constituencies who would identify with identified candidates, or demonstrate the
President’s determination to conduct a comprehensive search for the most qualified person
available.
An Administration, of course, need not wait until a vacancy occurs on the Court to begin
investigating the backgrounds of potential nominees. Immediately after President George W.
Bush was sworn into office in 2001, according to a book on Supreme Court nominations, “his
staff began putting together a list of potential nominees and conducting extensive background
research on them.” The book continued
Officials believed [Chief Justice William H.] Rehnquist was likely to retire in the summer
of 2001, and they were determined to be ready. Each young lawyer in the White House
counsel’s office, most of whom had clerked on the Supreme Court, was assigned a
candidate and made responsible for writing a lengthy report about him or her. In the late
spring, then-White House counsel Alberto Gonzalez and his deputy Tim Flanigan began
secretly interviewing some of those possible replacements.
The advance work was designed to ensure that George W. Bush would be prepared when a Justice
stepped down. The early in-depth research and interviews with prospective nominees were
reportedly important in ensuring Bush would have coolheaded advice, removed from any external
political pressure to select a particular nominee in the hours after a retirement.64
Speed by Which a President Selects a Nominee
Figure 2 shows the number of days that elapsed between the date on which it was publicly
known that a Justice was leaving the Court (due to retirement or death) and the date on which the
President publicly identified a nominee to replace the departing Justice.65 Note that the figure
only shows those vacancies on the Court, since 1975, which required only a single nomination to
be filled. Consequently, for example, the vacancy created by the death of Justice Scalia is not
included in Figure 2 (since more than one nomination was made to fill it).
Overall, for the 13 vacancies included in Figure 2, approximately 19 days, on average, elapsed
between the date on which it was publicly known that a Justice was leaving the Court and the date
on which the President publicly identified a nominee to replace the Justice. For the same 13
vacancies, the median length of time between the two dates was 12 days.
For the most recent vacancy, President Trump nominated Judge Amy Coney Barrett 8 days after
the vacancy was created by the death of Justice Ruth Bader Ginsburg.

64 Greenburg, Supreme Conflict, p. 241.
65 65.

Greenburg, Supreme Conflict, p. 241.

66. There is no constitutional requirement that a departing Justice give the President advance notice of his or her There is no constitutional requirement that a departing Justice give the President advance notice of his or her
intention to step down from the Court. Nonetheless, a President sometimes learns in advance from a Justice that he or intention to step down from the Court. Nonetheless, a President sometimes learns in advance from a Justice that he or
she plans to publicly announce, on a future date, that he or she is leaving the Court. For example, Justice Harry she plans to publicly announce, on a future date, that he or she is leaving the Court. For example, Justice Harry A.
Blackmun told President Clinton through an informal conversation of his decision to retire more than four months Blackmun told President Clinton through an informal conversation of his decision to retire more than four months
before the Justicebefore the Justice’'s decision became public on April 6, 1994. In contrast, Justice Os decision became public on April 6, 1994. In contrast, Justice O’'Connor did not appear to have Connor did not appear to have
given President G.W. Bush any advance notice when she publicly announced her retirement via formal letter on July 1, given President G.W. Bush any advance notice when she publicly announced her retirement via formal letter on July 1,
2005. Although some Presidents learn in advance of a Justice2005. Although some Presidents learn in advance of a Justice’'s intention to retire or resign, the dates used in the s intention to retire or resign, the dates used in the
calculations calculations forfor Figure 2 are those in which it was are those in which it was publicly known that a Justice was stepping down from the Court (or known that a Justice was stepping down from the Court (or
departing the Court as a result of his or her death). Additionally, the date a President publicly announced whom he departing the Court as a result of his or her death). Additionally, the date a President publicly announced whom he
intended to nominate to replace a departing Justice might be different from the date that the nomineeintended to nominate to replace a departing Justice might be different from the date that the nominee’'s nomination was s nomination was
formally submitted by the President to the Senate. For the purposes of this report, the date a President publicly formally submitted by the President to the Senate. For the purposes of this report, the date a President publicly
announced whom he intends to nominate, rather than the date the nomination was formally submitted to the Senate, is announced whom he intends to nominate, rather than the date the nomination was formally submitted to the Senate, is
used as the end point in measuring the number of days it has taken for a President to select a nominee.used as the end point in measuring the number of days it has taken for a President to select a nominee.
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For the seven Justices currently serving on the Court who are included in Figure 2, the average
number of days from a vacancy occurring to a President’s public announcement of his or her
nomination to the Court was 17 days (with a median of 12 days).
Figure 2. Number of Days from Vacancy Announcement of Departing Justice to
President’s Public Announcement Identifying Nominee for Vacancy
(Vacancies Since 1975 That Required Only One Nomination Prior To Being Filled)

Source: Congressional Research Service.
Notes: This figure shows, for select vacancies since the Gerald Ford presidency, the number of days that
elapsed from the public vacancy announcement of a departing Justice to the President’s public announcement
identifying his nominee for the vacancy. The figure does not include three vacancies during this period that
required multiple nominations by a President in order for the vacancy to be fil ed—specifically, the vacancies
created by the departures of Justice Lewis Powell, Justice Sandra Day O’Connor, and Justice Antonin Scalia (see
the text of the report for additional information).
For the purposes of this report, if a Justice died while serving on the Court, the date of his or her death is
treated as the date on which a vacancy was publicly known or announced.
* John G. Roberts Jr. was initially nominated to the judgeship being vacated by Justice Sandra Day O’Connor.
President G.W. Bush nominated Mr. Roberts 18 days after Justice O’Connor submitted her retirement letter to
the President. Fol owing the death of Chief Justice Wil iam Rehnquist, the Roberts nomination was withdrawn by
President Bush and Mr. Roberts was subsequently renominated by President Bush to replace Chief Justice
Rehnquist. Mr. Roberts was renominated 2 days after Chief Justice Rehnquist’s death.
** Wil iam Rehnquist, who was already serving on the Court as an Associate Justice, was nominated by President
Reagan to serve as the new Chief Justice once Chief Justice Burger stepped down from the Court. Justice
Rehnquist’s elevation to the Chief Justice position would itself create a vacancy for an Associate Justice, to which
Mr. Scalia was nominated.
There has been variation in the length of time between when it was known there was or would be
a vacancy on the Court and when a President publicly announced his intention to nominate a
particular individual for the vacancy. For example, when a Justice steps down from the Court66 or
dies while in office, Presidents sometimes move relatively quickly, selecting their nominee within

66 67. In some cases a Justice may not step down immediately but instead announce his or her intention to step down on a In some cases a Justice may not step down immediately but instead announce his or her intention to step down on a
specified date in the future.specified date in the future.
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a week of the vacancy being announced. Presidents Reagan and George H. W. Bush, for instance,
selected most of their Supreme Court nominees within days of the vacating Justices publicly
announcing their retirements from the Court.67
President Clinton, in contrast, took more time in selecting his two Supreme Court nominees,
nominating Ruth Bader Ginsburg on June 22, 1993, nearly three months after the retirement
announcement of Justice Byron R. White, and nominating Stephen G. Breyer on May 17, 1994,
approximately five weeks after the retirement announcement of Justice Harry A. Blackmun.
Likewise, President George W. Bush’s first two Supreme Court selections were not made
immediately upon the heels of a Justice’s retirement announcement: President Bush announced
his choice of John G. Roberts Jr. to succeed Sandra Day O’Connor 18 days after she submitted
her retirement letter to the President, and he announced his choice of Harriet E. Miers to succeed
Justice O’Connor 28 days after withdrawing the aforementioned Roberts nomination.68 President
Bush did, however, move much more swiftly in selecting a nominee to succeed Chief Justice
William H. Rehnquist, announcing his choice of John G. Roberts Jr. for that office two days after
the death of Chief Justice Rehnquist on September 3, 2005.69
President Obama’s three Supreme Court selections were made within approximately one month
of an incumbent Justice departing the Court. He selected Sonia Sotomayor 25 days after Justice
David Souter announced he was leaving the Court; Elena Kagan 31 days after Justice Stevens
announced his retirement; and Merrick Garland 32 days following the death of Justice Scalia.
President Trump, in contrast to his immediate predecessor (President Obama), announced each of
his nominations to the Court within two weeks of a vacancy occurring (or, in the case of the
Scalia vacancy, within two weeks of assuming office in 2017). President Trump announced the
nomination of Brett Kavanaugh 12 days after Justice Anthony Kennedy announced his retirement
from the Court and announced the nomination of Amy Coney Barrett 8 days after Justice Ruth
Bader Ginsburg’s death created a vacancy on the Court. Similarly, President Trump announced

67 In a “ 68. In a "surprise announcementsurprise announcement”" on June 17, 1986, President Reagan announced the retirement of Chief Justice Warren on June 17, 1986, President Reagan announced the retirement of Chief Justice Warren
Burger, as well as his selection of Associate Justice William Rehnquist as BurgerBurger, as well as his selection of Associate Justice William Rehnquist as Burger’'s replacement, and his intention to s replacement, and his intention to
nominate, upon Rehnquistnominate, upon Rehnquist’'s confirmation as Chief Justice, Judge Antonin Scalia as an Associate Justice. Elder Witt, s confirmation as Chief Justice, Judge Antonin Scalia as an Associate Justice. Elder Witt,
“"Rehnquist to Be Chief Justice, Reagan Names Scalia to Court,Rehnquist to Be Chief Justice, Reagan Names Scalia to Court,”" Congressional Quarterly, June 21, 1986, p. 1399. Of , June 21, 1986, p. 1399. Of
the vacancies included the vacancies included in Figure 2, this is the only instance of an anticipated future vacancy on the Court being this is the only instance of an anticipated future vacancy on the Court being
publicly announced on the same date as a President announcing his nominee for that same vacancy.publicly announced on the same date as a President announcing his nominee for that same vacancy.
President G.H.W. Bush took President G.H.W. Bush took only severaljust days to announce nominees to fill the two vacancies that occurred during his days to announce nominees to fill the two vacancies that occurred during his
presidency. According to one source, presidency. According to one source, “"in Souter, the president saw a perfect nominee for the times: a brilliant jurist in Souter, the president saw a perfect nominee for the times: a brilliant jurist
who represented the best of American virtues and exhibited no vices or controversial positions on judicial issues.... who represented the best of American virtues and exhibited no vices or controversial positions on judicial issues....
Souter’Souter's obscurity became the deciding factor in his favor and gave him the nod over Jones, [another finalist] whose s obscurity became the deciding factor in his favor and gave him the nod over Jones, [another finalist] whose
opinions on the federal bench were more controversial. With a stunned candidate at his side, Bush announced Souteropinions on the federal bench were more controversial. With a stunned candidate at his side, Bush announced Souter’s
's nomination on the same day he met him for the first time, a mere seventy-two hours after Brennan announced his nomination on the same day he met him for the first time, a mere seventy-two hours after Brennan announced his
retirement from the bench.retirement from the bench.”" Perry and Abraham, Perry and Abraham, Oral History to Oral Argument, pp. 172-173., pp. 172-173.
As for the nomination of Clarence Thomas, Judge Thomas had been included on the list of potential nominees for the As for the nomination of Clarence Thomas, Judge Thomas had been included on the list of potential nominees for the
Brennan vacancy (to which Souter was nominated)—this may have contributed to the speed by which he was Brennan vacancy (to which Souter was nominated)—this may have contributed to the speed by which he was
nominated for the Marshall vacancy. As recounted by former attorney general Thornburg, by the time a second vacancy nominated for the Marshall vacancy. As recounted by former attorney general Thornburg, by the time a second vacancy
occurred, Judge Thomas occurred, Judge Thomas “"had a degree of seasoning on the D.C. Circuit ... we [the selection team] went through the had a degree of seasoning on the D.C. Circuit ... we [the selection team] went through the
usual suspects and I think the consensus was that Clarence was the choice.usual suspects and I think the consensus was that Clarence was the choice.”" Ibid., p. 175. Ibid., p. 175.
68 69. The vacancy created by the retirement of Sandra Day O The vacancy created by the retirement of Sandra Day O’'Connor is not included Connor is not included in Figure 2. The OThe O’'Connor vacancy Connor vacancy
was one of three Supreme Court vacancies since 1975 that required multiple nominations for the vacancy to be filled. was one of three Supreme Court vacancies since 1975 that required multiple nominations for the vacancy to be filled.
See the text below the figure for a discussion of the OSee the text below the figure for a discussion of the O’'Connor vacancy.Connor vacancy.
69 70. Likewise, as discussed in the text below, President G.W. Bush moved swiftly in selecting a third nominee to succeed Likewise, as discussed in the text below, President G.W. Bush moved swiftly in selecting a third nominee to succeed
Justice OJustice O’'Connor, announcing his choice of Samuel Connor, announcing his choice of Samuel A. Alito Jr. for that office on October 31, 2005, four days after the Alito Jr. for that office on October 31, 2005, four days after the
Miers nomination to that office was withdrawn.Miers nomination to that office was withdrawn.
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the nomination of Neil Gorsuch to fill the vacancy on the Court created by the death of Justice
Antonin Scalia 11 days after assuming office on January 20, 2017.
Vacancies That Have Had Multiple Nominations
As noted previously, Figure 2 includes only those vacancies on the Court, occurring since 1975,
that did not have multiple nominations by a President in order for the vacancy to be filled.
Specifically, since 1975, there have been three vacancies on the Court that had more than one
nomination by a President in order for the vacancy to be filled—the most recent being the
vacancy created on the Court by the death of Justice Scalia.
The Powell Vacancy
The first vacancy during this period that had multiple nominations was the vacancy created by the
departure of Justice Lewis Powell in 1987. President Reagan first nominated Robert Bork, an
appellate judge on the D.C. Circuit, to fill the vacancy; Judge Bork was nominated five days after
Justice Powell announced his retirement. The Bork nomination was ultimately rejected by the
Senate and, as a result, President Reagan announced his intention to nominate Douglas H.
Ginsburg, another appellate judge on the D.C. Circuit. President Reagan announced his intention
to nominate Judge Ginsburg six days after the Bork nomination was rejected by the Senate. Judge
Ginsburg was never formally nominated, and four days later Mr. Ginsburg withdrew his name
from consideration,70 President Reagan nominated Anthony Kennedy (whose nomination was
ultimately approved by the Senate).
Altogether, a total of 138 days, or approximately 4.5 months, elapsed from Justice Powell
announcing his retirement to President Reagan nominating Anthony Kennedy to the vacancy.71
The O’Connor Vacancy
The second vacancy that had multiple nominations to be filled was the vacancy created by the
retirement of Justice Sandra Day O’Connor. Eighteen days elapsed from Justice O’Connor’s
announcement that she would step down from the Court (contingent upon the confirmation of her
successor) to President G.W. Bush’s nomination of John Roberts Jr. to replace her. The Roberts
nomination was later withdrawn by the President (in order for Mr. Roberts to be re-nominated to
fill the vacancy in the Chief Justice position arising from Justice Rehnquist’s death); 28 days after
the withdrawal of the Roberts nomination, President Bush nominated Harriet Miers to replace
Justice O’Connor. The Miers nomination was later withdrawn by the President and four days later
he nominated Samuel Alito (whose nomination was confirmed by the Senate).
Altogether, a total of 122 days, or approximately 4 months, elapsed from Justice O’Connor’s
announcement that she intended to retire to President G.W. Bush’s nomination of Samuel Alito.

70 71. Overall, for the nine vacancies included in Figure 2 that were filled by a Republican President, the average length of time from a vacancy occurring (or being publicly announced) to a President naming a nominee to fill the vacancy was approximately one week (7 days), while for the five vacancies filled by Democratic Presidents the average length of time was approximately six weeks (42 days). Among vacancies included in the table that were filled by a Republican President, the longest length of time from a vacancy occurring (or being publicly announced) to a President naming a nominee was 19 days for the Stewart vacancy in 1981 (filled by Sandra Day O'Connor), while the longest length of time among vacancies filled by a Democratic President was 87 days for the White vacancy in 1993 (filled by Ruth Bader Ginsburg). For a discussion of political and institutional factors that influence how quickly a President selects a nominee for a vacancy, see the section below titled "Factors Affecting the Speed by Which a Nominee Is Selected." 72. After it was disclosed that Judge Ginsburg occasionally smoked marijuana while a college student in the 1960s and After it was disclosed that Judge Ginsburg occasionally smoked marijuana while a college student in the 1960s and
on a few occasions in the 1970s, Judge Ginsburg requested that his nomination be withdrawn. George Archibald and on a few occasions in the 1970s, Judge Ginsburg requested that his nomination be withdrawn. George Archibald and
Mary Belcher, Mary Belcher, “"Ginsburg Confesses He Used Marijuana,Ginsburg Confesses He Used Marijuana,”" The Washington Post, November 6, 1987.November 6, 1987. See also Steven See also Steven
V. Roberts, V. Roberts, “"Ginsburg Withdraws Name As Supreme Court Nominee, Citing Marijuana Ginsburg Withdraws Name As Supreme Court Nominee, Citing Marijuana ‘'Clamor,Clamor,’”'" The New York
Times, November 8, 1987., November 8, 1987.
71 73. This total includes any days in which the Bork nomination was pending, as well as days in which the prospective This total includes any days in which the Bork nomination was pending, as well as days in which the prospective
nomination of Judge Ginsburg was pending prior to the Kennedy nomination.nomination of Judge Ginsburg was pending prior to the Kennedy nomination.
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The Scalia Vacancy
The third vacancy during this period that had more than one nomination prior to the appointment
of a new Justice is the vacancy created by the death of Justice Antonin Scalia on February 13,
2016. In contrast to the Powell and O’Connor vacancies discussed above, this is the sole vacancy
during this period for which nominations to the Court will have been made by two different
Presidents. Specifically, President Obama nominated Merrick Garland on March 16, 2016 (32
days after Justice Scalia’s death). The Garland nomination was not acted upon by the Senate
during the second session of the 114th Congress and was returned to the President on January 3,
2017.72 The Garland nomination was pending before the Senate for a total of 293 days, or
approximately 10 months, prior to being returned to the President.
On January 31, 2017, President Trump, 11 days after he assumed office on January 20, 2017,
announced his intention to nominate Neil Gorsuch to fill the vacancy created by the death of
Justice Scalia.73
Factors Affecting the Speed by Which a Nominee Is Selected
Advance Notice of Vacancy
A President may be well positioned to make a quick announcement when a retiring Justice alerts
the President beforehand (thus giving the President lead time, before the vacancy occurs, to
consider whom to nominate as a successor).74 Even when receiving no advance warning from an
outgoing Justice, the President may already have in hand a “short list,” prepared precisely for the
event of a Court vacancy, of persons already evaluated and acceptable to the President for the
appointment.75
Strong Preference of President
If the President has a strong personal preference for a particular individual,76 nominating the
person quickly preempts the issue of whether someone else should be nominated. Rather than

72 74. Senator Mitch McConnell, the Republican Majority Leader, stated, on February 13, 2016, that Senator Mitch McConnell, the Republican Majority Leader, stated, on February 13, 2016, that “"the American people the American people
should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled
until we have a new President.until we have a new President.”" Consequently, the Senate did not act on the Garland nomination. See Senator Consequently, the Senate did not act on the Garland nomination. See Senator
McConnell, McConnell, “"Justice Antonin Scalia,Justice Antonin Scalia,”" Press Release, February 13, 2016. In contrast, Senator Harry Reid argued that, February 13, 2016. In contrast, Senator Harry Reid argued that,
the decision not to consider President Obamathe decision not to consider President Obama’'s nominee amounted to a s nominee amounted to a “"full-blown effort to delegitimize President full-blown effort to delegitimize President
Barack Obama, the presidency, and undermine our basic system of checks and balances.Barack Obama, the presidency, and undermine our basic system of checks and balances.”" See Alan Fram, Associated See Alan Fram, Associated
Press, Press, “"The SenateThe Senate’'s top Democrat says Republicans are trying to delegitimize Barack Obamas top Democrat says Republicans are trying to delegitimize Barack Obama’'s presidency by trying to s presidency by trying to
prevent him from filling the Supreme Court vacancy,prevent him from filling the Supreme Court vacancy,”" U.S. News & World Report, February 22, 2016., February 22, 2016.
73 75. The Associated Press, The Associated Press, “"Trump Taps Conservative Judge Neil Gorsuch for Supreme Court,Trump Taps Conservative Judge Neil Gorsuch for Supreme Court,”" The New York Times, ,
January 31, 2017, January 31, 2017, at https://www.nytimes.com/aponline/2017/01/31/us/politics/ap-us-trump-supreme-court.htmlhttps://www.nytimes.com/aponline/2017/01/31/us/politics/ap-us-trump-supreme-court.html.
74. 76. Alternatively, as in the case of President Trump Alternatively, as in the case of President Trump’'s nomination of Neil Gorsuch, the vacancy existed for a period of s nomination of Neil Gorsuch, the vacancy existed for a period of
time prior to an individual being elected President—thus, giving a potential President lead time in terms of whom to time prior to an individual being elected President—thus, giving a potential President lead time in terms of whom to
consider for a vacancy on the Court.consider for a vacancy on the Court.
75 77. According to one account, for example, the selection process for a possible vacancy occurring during the Obama According to one account, for example, the selection process for a possible vacancy occurring during the Obama
presidency presidency “"got its start in the weeks after Mr. Obamagot its start in the weeks after Mr. Obama’'s election [in 2008] when he gathered advisers in a conference s election [in 2008] when he gathered advisers in a conference
room in downtown Chicago one day. The court was on his mind. room in downtown Chicago one day. The court was on his mind. ‘'Just because we donJust because we don’'t have a vacancy right now t have a vacancy right now
doesn’doesn't mean we shouldnt mean we shouldn’'t work on it,t work on it,’' he told the group, according to participants. he told the group, according to participants. ‘'The day we get a vacancy, we The day we get a vacancy, we
want to have a short list of people ready.want to have a short list of people ready.’”'" Peter Baker and Adam Nagourney, Peter Baker and Adam Nagourney, “"Sotomayor Pick a Product of Lessons Sotomayor Pick a Product of Lessons
From Past Battles,From Past Battles,”" The New York Times, May 28, 2009, , May 28, 2009, at http://www.nytimes.com/2009/05/28/us/politics/http://www.nytimes.com/2009/05/28/us/politics/
28select.html?pagewanted=all&_r=0.
76 For example, following Justice Souter’s retirement announcement, President Obama “from the beginning ... had been
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focus on a range of individuals who should be considered for the Supreme Court, the appointment
process moves to the next major stage, to the question of whether that individual should be
confirmed.
Sense of Urgency
Presidents also might be moved to nominate quickly in order to minimize the time during which
there is a vacancy on the Court. If an actual vacancy is suddenly created—for example, due to an
unexpected retirement, resignation, or death of a Justice—a President, as well as Senators, might
be eager to bring the Court back to full strength as soon as possible. A similar sense of urgency
might be felt if a Justice has announced the intention to step down from the Court by a date
certain in the near future.
Most recently, the length of time between the date of Justice Ruth Bader Ginsburg’s death and the
date of the 2020 presidential election likely contributed to a sense of urgency to fill the vacancy
created by Ginsburg’s death. Specifically, Judge Amy Coney Barrett was selected relatively
quickly as the nominee for the Ginsburg vacancy (i.e., eight days from the vacancy occurring to
Judge Barret’s selection). Along these lines, it was reported that the Republican majority leader’s
goal was to have the Barret nomination approved “by late October.”77
When Vacancy Occurs
The speed with which a President chooses a nominee also, as noted above, can be affected by
when a seat on the Court is vacated. Sometimes, Justices might announce their retirement when
the Court recesses for the summer, in late June or early July, giving the President little or no
advance notice. In such situations, a President might decide to nominate quickly, to allow the
Senate confirmation process to begin as quickly as possible. A swiftly made nomination, in such a
circumstance, affords the Senate Judiciary Committee and the Senate as long as three months
(July through September) in which to consider the nomination before the start of the Court’s term
in early October, thereby increasing the chances of the Court being at full nine-member strength
when it reconvenes.
Sometimes, when Justices give advance notice of their intention to retire, Presidents might be
under relatively little pressure to nominate quickly. In the spring of 1993, for example, Justice
Byron R. White announced he would step down when the Court adjourned for the summer. His
advance notice gave President Clinton and the Senate together more than six months in which,
respectively, to nominate and confirm a successor before the beginning of the Court’s next term
in October. A year later, in the spring of 1994, Justice Harry A. Blackmun announced his
intention to retire at the end of the Court term then in progress, again affording the President and
the Senate ample time to appoint a successor to a retiring Justice before the start of the next Court
term.78 Despite the long lead time afforded by Justice Blackmun’s announcement, however,

28select.html?pagewanted=all&_r=0. 78. For example, following Justice Souter's retirement announcement, President Obama "from the beginning ... had been focused on Judge [Sonia] Sotomayor, a federal appeals court judge from New York. She had a compelling life story, focused on Judge [Sonia] Sotomayor, a federal appeals court judge from New York. She had a compelling life story,
Ivy League credentials and a track record on the bench.... And by the time the [appointment] opportunity arrived, it Ivy League credentials and a track record on the bench.... And by the time the [appointment] opportunity arrived, it
became her nomination to lose.became her nomination to lose.”" Ibid. Ibid.
77 79. See Sarah Binder, See Sarah Binder, “"Yes, Senate Republicans could still confirm Barrett before the election,Yes, Senate Republicans could still confirm Barrett before the election,”" Washington Post, ,
October 5, 2020, October 5, 2020, at https://www.washingtonpost.com/politics/2020/10/05/yes-senate-republicans-could-still-confirm-https://www.washingtonpost.com/politics/2020/10/05/yes-senate-republicans-could-still-confirm-
barrett-before-election/barrett-before-election/.
78. 80. Justice Blackmun reportedly had given even more advance notice to the President, having privately informed him, on Justice Blackmun reportedly had given even more advance notice to the President, having privately informed him, on
or about January 1, 1994, of his intention to retire before the start of the next Court term in October 1994. See Douglas or about January 1, 1994, of his intention to retire before the start of the next Court term in October 1994. See Douglas
Jehl, Jehl, “"Mitchell Viewed as Top Candidate for High Court,Mitchell Viewed as Top Candidate for High Court,”" The New York Times, April 7, 1994, p. A1; Tony Mauro, April 7, 1994, p. A1; Tony Mauro,
“"How Blackmun Hid Retirement Plans,How Blackmun Hid Retirement Plans,”" New Jersey Law Journal, April 25, 1994, p. 18, , April 25, 1994, p. 18, at http://www.nexis.comhttp://www.nexis.com. .
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White House advisers reportedly believed it was “important to act quickly” to name a successor
to Blackmun. To move quickly, it was reported, would serve to “avoid a repeat of the [previous]
year’s drawn out process” in which President Clinton engaged in a “very public, three-month
search” before nominating Ruth Bader Ginsburg to the Court.79 After Justice Blackmun’s
announcement, President Clinton deliberated five weeks before announcing, on May 13, 1994, his
selection of U.S. appellate court judge Stephen G. Breyer to be his Supreme Court nominee.
President Barack Obama also was provided considerable advance notice of an upcoming Court
vacancy when Justice David H. Souter informed the President by letter on May 1, 2009, of his
intention to step down when the Court recessed for the summer (the Court went into summer
recess on June 29). Three and a half weeks later, on May 26, President Obama announced his
intention to nominate a U.S. appellate judge, Sonia Sotomayor, to succeed Justice Souter. The
selection by President Obama was, on the one hand, not as quickly made as some of the nominee
selections of Presidents Reagan, George H. W. Bush, and George W. Bush. On the other hand,
President Obama took less time than President Clinton did in making his three Court selections.
During the 25 days between Justice Souter’s retirement notice and the selection of Judge
Sotomayor, President Obama had enough time, in his words, to seek “the advice of Members of
Congress on both sides of the aisle, including every member of the Senate Judiciary
Committee.”80 That he did not take additional time to decide whom to select might have been
influenced by a concern for allowing the Senate to begin considering a Court nomination as soon
as possible. The President and some Senate Democrats expressed the hope that the Senate would
vote to confirm Judge Sotomayor not merely before the start of the Court’s term in October, but
before the Senate’s August 2009 recess, in order to afford time for her to prepare for that term.81
(The Senate ultimately confirmed the Sotomayor nomination on August 6, 2009.)82
Presidents also may have considerable latitude in deciding when to nominate if an outgoing
Justice schedules his or her retirement to take effect only when a successor is confirmed or
assumes office. The most recent instance of that occurred when Justice Sandra Day O’Connor, in
a July 1, 2005, letter to President George W. Bush, announced her decision to retire from the
Court “effective upon the nomination and confirmation” of her successor.83 At the announcement
of Justice O’Connor’s retirement, President Bush declared he would “choose a nominee in a
timely manner” so that the nominee would receive a Senate hearing and confirmation vote
“before the new Supreme Court term begins.”84 Within three weeks he announced his selection of

Later, on the eve of his public retirement announcement, on April 6, 1994, Justice Blackmun was reported to have told Later, on the eve of his public retirement announcement, on April 6, 1994, Justice Blackmun was reported to have told
friends friends “"he wanted to make sure there would be ample time for a successor to be confirmed by the Senate and prepare he wanted to make sure there would be ample time for a successor to be confirmed by the Senate and prepare
for the start of a new term in October.for the start of a new term in October.”" Ruth Marcus, Ruth Marcus, “"Blackmun Set To Leave High Court,Blackmun Set To Leave High Court,”" The Washington Post, ,
April 6, 1994, p. A1.April 6, 1994, p. A1.
79 81. Ibid. (Marcus), pp. A1, A7. Ibid. (Marcus), pp. A1, A7.
80 82. U.S. President (Obama, Barack H.), U.S. President (Obama, Barack H.), “"Remarks on the Nomination of Sonia Sotomayor To Be a Supreme Court Remarks on the Nomination of Sonia Sotomayor To Be a Supreme Court
Associate Justice,Associate Justice,”" Daily Compilation of Presidential Documents, May 26, 2009, DCPD-200900402, p. 1., May 26, 2009, DCPD-200900402, p. 1.
81 83. See CRS Report RL33118, See CRS Report RL33118, Speed of Presidential and Senate Actions on Supreme Court Nominations, 1900-2010, by , by
R. Sam Garrett and Denis Steven Rutkus (under heading R. Sam Garrett and Denis Steven Rutkus (under heading “"Activity During 2009Activity During 2009”).
82"). 84. A year later, President Obama was provided even more advance notice of an upcoming Court vacancy when Justice A year later, President Obama was provided even more advance notice of an upcoming Court vacancy when Justice
John Paul Stevens, in an April 9, 2010, letter, informed the President of his intention to step down when the Court John Paul Stevens, in an April 9, 2010, letter, informed the President of his intention to step down when the Court
recessed for the summer. President Obama announced his selection of a nominee to succeed Justice Stevens, Elena recessed for the summer. President Obama announced his selection of a nominee to succeed Justice Stevens, Elena
Kagan, on May 10, 2010, taking 31 days to make and announce his selection (compared with the 25 days taken the year Kagan, on May 10, 2010, taking 31 days to make and announce his selection (compared with the 25 days taken the year
before to make and announce his selection of Sonia Sotomayor to succeed outgoing Justice Souter).before to make and announce his selection of Sonia Sotomayor to succeed outgoing Justice Souter).
83 85. Sandra Day O Sandra Day O’'Connor, letter to President George W. Bush, July 1, 2005, Connor, letter to President George W. Bush, July 1, 2005, available at
http://www.supremecourtus.gov/publicinfo/press/pr_07-01-05.htmlhttp://www.supremecourtus.gov/publicinfo/press/pr_07-01-05.html.
84. 86. U.S. President (Bush, George W.), U.S. President (Bush, George W.), “"Resignation of Justice Sandra Day OResignation of Justice Sandra Day O’'Connor from the Supreme Court of the Connor from the Supreme Court of the
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John G. Roberts Jr. to succeed Justice O’Connor.85 The conditional nature of Justice O’Connor’s
planned retirement, however, meant that her seat on the Court would be occupied when the Court
convened for its October 2005 term, whether or not her successor were confirmed by then.
Ultimately, Justice O’Connor remained on the Court for four months of the new Court term,
retiring only on January 31, 2006, when the third person nominated by President Bush to succeed
her, Samuel A. Alito Jr., was confirmed by the Senate. During the months that Justice O’Connor
remained on the Court, awaiting the confirmation of her successor, the Associate Justice
nomination of John G. Roberts Jr. was withdrawn so that President Bush could nominate Roberts
to be Chief Justice (following the death of Chief Justice Rehnquist on September 3, 2005); a
second nomination to succeed Justice O’Connor, that of White House Counsel Harriet E. Miers,
was made, only to be withdrawn three weeks later; and, on November 10, 2005, a third person,
Samuel A. Alito Jr., was nominated to succeed Justice O’Connor. For a President, the need to
select an Associate Justice nominee might be seen as less urgent than the appointment of a Chief
Justice, particularly if, as was the case in 2005, the Chief Justice position is actually vacant and
the Associate Justice vacancy is not actual, but prospective.
Potential Drawbacks of Quickly Selecting a Nominee
Selecting a Supreme Court nominee relatively quickly, however, may sometimes have drawbacks.
A President may be accused of charging ahead with a nominee without having first adequately
consulted with the Senate, or without having taken the time necessary to determine who really
would make the best nominee—either in terms of the nominee’s professional qualifications or
ideological disposition.86 Also, quick announcements might not allow time for the FBI to conduct
a comprehensive background investigation prior to nomination, leaving open the possibility of
unfavorable information about the nominee coming to light later.87

United States,” Weekly Compilation of Presidential Documents, vol. 41, July 4, 2005, p. 1108.
85 While President Bush announced his selection of Roberts to be an Associate Justice nominee on July 19, 2005, he
formally transmitted his nomination of Roberts to the Senate 10 days later.
86United States," Weekly Compilation of Presidential Documents, vol. 41, July 4, 2005, p. 1108. 87.

While President Bush announced his selection of Roberts to be an Associate Justice nominee on July 19, 2005, he formally transmitted his nomination of Roberts to the Senate 10 days later.

88.

Stephen Breyer, letter to President Joseph R. Biden, January 27, 2022, https://www.supremecourt.gov/publicinfo/press/Letter_to_President_January-27-2022.pdf.

89. President G.W. Bush, for example, faced criticism for his selection of Harriet Miers to fill the vacancy created by President G.W. Bush, for example, faced criticism for his selection of Harriet Miers to fill the vacancy created by
Justice OJustice O’Connor’'Connor's retirement. Prior to Ms. Mierss retirement. Prior to Ms. Miers’'s request that her nomination be withdrawn, there had been s request that her nomination be withdrawn, there had been
“"increasingly heated debate over the depth of her conservative beliefs and her qualifications,increasingly heated debate over the depth of her conservative beliefs and her qualifications,”" and her nomination and her nomination “"had had
been severely criticized by senators of all political stripes—by conservatives who doubted her commitment to their been severely criticized by senators of all political stripes—by conservatives who doubted her commitment to their
cause, especially her feelings about abortion, and by moderates and liberals, who said they knew too little about her, cause, especially her feelings about abortion, and by moderates and liberals, who said they knew too little about her,
especially since she had never been a judge.especially since she had never been a judge.”" David Stout and Timothy Williams, David Stout and Timothy Williams, “"Miers Ends Supreme Court Bid Miers Ends Supreme Court Bid
After Failing to Win Support,After Failing to Win Support,”" The New York Times, October 27, 2005, , October 27, 2005, at http://www.nytimes.com/2005/10/27/http://www.nytimes.com/2005/10/27/
politics/politicsspecial1/27cnd-scotus.html?pagewanted=all&_r=0politics/politicsspecial1/27cnd-scotus.html?pagewanted=all&_r=0.
87 It is “. 90. It is "precisely when presidents fail to require thorough checks,precisely when presidents fail to require thorough checks,”" two scholars have written, two scholars have written, “"that trouble is likely.that trouble is likely.”
" As illustrative, they cite the FBI investigation of President Richard M. NixonAs illustrative, they cite the FBI investigation of President Richard M. Nixon’'s Supreme Court nominee Clement s Supreme Court nominee Clement F.
Haynsworth Jr. in 1969. Haynsworth Jr. in 1969. “"Unfortunately for both Haynsworth and the president, the cursory FBI check left unrevealed Unfortunately for both Haynsworth and the president, the cursory FBI check left unrevealed
questions of financial dealings and conflicts of interest that would eventually doom the nomination. Without learning questions of financial dealings and conflicts of interest that would eventually doom the nomination. Without learning
from the first mistake, the Nixon Administration rushed headlong into another hurried selection, Harrold Carswell, from the first mistake, the Nixon Administration rushed headlong into another hurried selection, Harrold Carswell,
without full knowledge of flaws that would prove fatal in his background. A similar failure occurred as the Reagan without full knowledge of flaws that would prove fatal in his background. A similar failure occurred as the Reagan
Administration rushed to bring forth a nominee in the wake of the Bork defeat. In this instance, the rushed investigation Administration rushed to bring forth a nominee in the wake of the Bork defeat. In this instance, the rushed investigation
failed to uncover the marijuana episodes of Douglas Ginsburg, which led to another presidential setback in the failed to uncover the marijuana episodes of Douglas Ginsburg, which led to another presidential setback in the
appointment process.appointment process.”" Watson and Stookey, Watson and Stookey, Shaping America, p. 82. More recently, a supplemental background , p. 82. More recently, a supplemental background
investigation bv the FBI occurred during the Brett Kavanaugh nomination to the Court after the Senate had already investigation bv the FBI occurred during the Brett Kavanaugh nomination to the Court after the Senate had already
started its consideration of the nomination. Noor Wazwaz et al., started its consideration of the nomination. Noor Wazwaz et al., “"Trump Orders Limited FBI Investigation To Trump Orders Limited FBI Investigation To
Supplement Kavanaugh Background Check,Supplement Kavanaugh Background Check,”" National Public Radio, September 28, 2018, , September 28, 2018, at https://www.npr.org/https://www.npr.org/
2018/09/28/652486413/judiciary-committee-set-to-vote-on-kavanaugh-friday-with-eyes-on-undecided-jeff.2018/09/28/652486413/judiciary-committee-set-to-vote-on-kavanaugh-friday-with-eyes-on-undecided-jeff. Prior to Prior to
Senate consideration of the nomination, President Trump had Senate consideration of the nomination, President Trump had “"moved quickly to select his nominee [Kavanaugh], just moved quickly to select his nominee [Kavanaugh], just
12 days after Kennedy announced his retirement.12 days after Kennedy announced his retirement.”" Scott Horsley, Scott Horsley, “"Trump Taps Brett Kavanaugh As His 2^nd Supreme Court Pick," NPR, July 9, 2018, Trump Taps Brett Kavanaugh As His 2nd Supreme
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Some nominees who were selected relatively quickly by a President were ultimately not approved
or considered by the Senate (for one or more of the reasons mentioned above). President Reagan,
for example, announced his intention to nominate Robert Bork five days after Justice Powell
announced his retirement. Six days after the Bork nomination failed in the Senate, President
Reagan subsequently announced his intention to nominate Douglas H. Ginsburg (who later asked
the President to withdraw his name from consideration for Powell’s seat). But the relatively quick
selection of a nominee by a President does not necessarily mean that the nomination will not be
approved by the Senate. David Souter, for example, was nominated three days after Justice
Brennan’s retirement was publicly announced (and Clarence Thomas was nominated four days
after Justice Marshall’s retirement).
Recess Appointments to the Court
On 12 occasions (most of them in the 19th century), Presidents have made temporary
appointments to the Supreme Court without submitting nominations to the Senate. These
occurred when Presidents exercised their power under the Constitution to make “recess
appointments” when the Senate was not in session.88 Historically, when recesses between sessions
of the Senate were much longer than they are today, recess appointments served the purpose of
averting long vacancies on the Court when the Senate was unavailable to confirm a President’s
appointees. The terms of these recess appointments, however, were limited, expiring at the end of
the next session of Congress (unlike the potentially lifetime appointments Court appointees
receive when nominated and then confirmed by the Senate). Despite the temporary nature of
these appointments, every person appointed during a recess of the Senate, except one, ultimately
received a later appointment to the Court after being nominated by the President and confirmed
by the Senate.89
Recess appointments, when they do occur, may cause controversy, in large part because they
bypass the Senate and its “advice and consent” role.90 The last President to make a recess
appointment to the Court was Dwight D. Eisenhower. Of the five persons whom he nominated to
the Court, three initially received recess appointments and served as Justices before being
confirmed by the Senate—Earl Warren (as Chief Justice) in 1953, William Brennan in 1956, and
Potter Stewart in 1958.91

Court Pick,” NPR, July 9, 2018, at https://www.npr.org/2018/07/09/624727227/trump-to-name-his-second-supreme-https://www.npr.org/2018/07/09/624727227/trump-to-name-his-second-supreme-
court-pick. Judge Kavanaugh was later confirmed by the Senate on October 6, 2018.court-pick. Judge Kavanaugh was later confirmed by the Senate on October 6, 2018.
88 91. Specifically, Article II, Section 2, Clause 3 of the U.S. Constitution empowers the President Specifically, Article II, Section 2, Clause 3 of the U.S. Constitution empowers the President “"to fill up all Vacancies to fill up all Vacancies
that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next
Session.Session.”
89" 92. For a list and discussion of the 12 recess appointments to the Court, see Henry B. Hogue, For a list and discussion of the 12 recess appointments to the Court, see Henry B. Hogue, “"The Law: Recess The Law: Recess
Appointments to Article III Courts,Appointments to Article III Courts,”" Presidential Studies Quarterly, vol. 34, September 2004, pp. 656-673. For more , vol. 34, September 2004, pp. 656-673. For more
information on judicial recess appointments, CRS Report RL31112, information on judicial recess appointments, CRS Report RL31112, Recess Appointments of Federal Judges, by Louis , by Louis
Fisher (out of print, available to congressional clients upon request from author).Fisher (out of print, available to congressional clients upon request from author).
90 93. There was, for example, some opposition to the use of a recess appointment to seat Earl Warren as Chief Justice: There was, for example, some opposition to the use of a recess appointment to seat Earl Warren as Chief Justice:
“"Certain segments of the legal community felt strongly that the timing of [WarrenCertain segments of the legal community felt strongly that the timing of [Warren’'s] appointment, with Congress in s] appointment, with Congress in
recess, was entirely inappropriate. These segments felt that the Constitution did not contemplate the seating of any recess, was entirely inappropriate. These segments felt that the Constitution did not contemplate the seating of any
federal judge (especially the Chief Justice of the United States) in advance of Senate confirmation. To be of another federal judge (especially the Chief Justice of the United States) in advance of Senate confirmation. To be of another
opinion would surely result in the subjection of the nomineeopinion would surely result in the subjection of the nominee’'s interim behavior to floor debates and committee scrutiny s interim behavior to floor debates and committee scrutiny
that, in turn, would jeopardize his independence of action.that, in turn, would jeopardize his independence of action.”" John P. Frank and Julie Zatz, John P. Frank and Julie Zatz, “"The Appointment of Earl The Appointment of Earl
Warren as Chief Justice of the United States,Warren as Chief Justice of the United States,”" Arizona State Law Journal, vol. 23, p. 731 (Fall 1991)., vol. 23, p. 731 (Fall 1991).
91 94. Following their recess appointments to the Court, Justices Warren and Brennan were later confirmed by the Senate Following their recess appointments to the Court, Justices Warren and Brennan were later confirmed by the Senate
by voice vote (thus, there were no recorded by voice vote (thus, there were no recorded “nays”"nays" in opposition to either nomination). Justice Stewart, however, in opposition to either nomination). Justice Stewart, however,
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Senate Resolution 334, 86th Congress
The Senate, on August 29, 1960, adopted S. Res. 334 “expressing the sense of the Senate that the
President should not make recess appointments to the Supreme Court, except to prevent or end a
breakdown in the administration of the Court’s business, and a recess appointee should not take
his seat on the Court until the Senate has ‘advised and consented’ to the nomination.”92 The
resolution was adopted by a vote of 48-37, largely along party lines.93
Senate proponents of the resolution contended, among other things, that judicial independence
would be affected if Supreme Court recess appointees, during the probationary period of their
appointment, took positions to please the President (in order not to have the President withdraw
their nominations) or to please the Senate (in order to gain confirmation of their nominations). It
also was argued that Senate investigation of nominations of these recess appointees was made
difficult by the oath preventing sitting Justices from testifying about matters pending before the
Court.94
Opponents, however, said, among other things, that the resolution was an attempt to restrict the
President’s constitutional recess appointment powers. Opponents also argued that recess
appointments were sometimes called for in order to keep the Court at full strength to handle the
Court’s large and complex case load, as well as to prevent evenly split rulings by its members.95
Additionally, opponents argued that the resolution “not only went beyond the ‘advise and
consent’ powers of Congress, but that it was a reflection against [Eisenhower], as well as Chief
Justice Earl Warren, and Justices William J. Brennan Jr. and Potter Stewart, who were recess
appointees during the Eisenhower Administration.”96

received 17 nay votes at the time of his confirmation in 1959 (following his recess appointment in 1958). According to received 17 nay votes at the time of his confirmation in 1959 (following his recess appointment in 1958). According to
one source, one source, “"all Senators who voted against the confirmation were Southern Democrats.... Southern opposition did not all Senators who voted against the confirmation were Southern Democrats.... Southern opposition did not
center on Stewart directly but concentrated on such Southern concerns as the [1954] segregation decision and statescenter on Stewart directly but concentrated on such Southern concerns as the [1954] segregation decision and states’
' rights, plus a belief that making recess appointments to important office lessened the Senaterights, plus a belief that making recess appointments to important office lessened the Senate’'s power to s power to ‘'advise and advise and
consent.consent.’” “'" "1959 Presidential Nominations,1959 Presidential Nominations,”" 1959 CQ Almanac ( (Washington, DC: CQ Press, 1959), p. 664.CQ Press, 1959), p. 664.
92 “ 95. "Supreme Court Appointments,Supreme Court Appointments,”" Congressional Quarterly, September 2, 1960, p. 1520 (hereinafter cited as , September 2, 1960, p. 1520 (hereinafter cited as
“"Supreme Court AppointmentsSupreme Court Appointments”).
93"). 96. Of Democratic Senators voting, 48 of 52 supported the resolution, while all 33 Republican Senators voting were Of Democratic Senators voting, 48 of 52 supported the resolution, while all 33 Republican Senators voting were
opposed. opposed. “"Senate Adopts Foreign Aid, Medical Care Conference Reports; Increases Aid Amount on Supplemental; Senate Adopts Foreign Aid, Medical Care Conference Reports; Increases Aid Amount on Supplemental;
Adopts Court Resolution,Adopts Court Resolution,”" Congressional Quarterly, September 2, 1960, p. 1540., September 2, 1960, p. 1540.
94 97. Senator Philip Senator Philip A. Hart of Michigan, for example, argued that the Senate was Hart of Michigan, for example, argued that the Senate was “"dreadfully handicappeddreadfully handicapped”" in considering in considering
nominations to the Court that were the result of recess appointments. nominations to the Court that were the result of recess appointments. “"Supreme Court Appointments,Supreme Court Appointments,”" p. 1520. p. 1520.
95 “ 98. "Opposition to Recess Appointments to the Supreme Court,Opposition to Recess Appointments to the Supreme Court,”" debate in Senate on S.Res. 334, debate in Senate on S.Res. 334, Congressional Record, ,
vol. 106, August 29, 1960, pp. 18130-18145. See also CRS Report RL31112, vol. 106, August 29, 1960, pp. 18130-18145. See also CRS Report RL31112, Recess Appointments of Federal Judges, ,
by Louis Fisher, pp. 16-18 (out of print, available to congressional clients upon request from author).by Louis Fisher, pp. 16-18 (out of print, available to congressional clients upon request from author).
96 “Supreme Court Appointments,” p. 1520.
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Because of the criticisms of judicial recess appointments in recent decades, the long passage of
time since the last Supreme Court recess appointment in 1958, and the relatively short duration of
contemporary Senate recesses (which might diminish the need for recess appointments to the
Court), a President in the 21st century might hesitate to make a recess appointment to the Court
and do so only under unusual circumstances.97 Additionally, recent Supreme Court jurisprudence
involving the Recess Appointments Clause might, under certain circumstances, constitutionally
limit a President’s ability to make recess appointments to the Court.

Author Information

Barry J. McMillion

Analyst in American National Government


Acknowledgments
Denis Steven Rutkus, former Specialist on the Federal Judiciary, worked on a prior version of this report
and Amber Wilhelm, Visual Information Specialist in the Office of Publishing, worked on the figures
included in this report.

Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan
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under the direction of Congress. Information in a CRS Report should not be relied upon for purposes other
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copy or otherwise use copyrighted material.


97 99.

"Supreme Court Appointments," p. 1520.

100. A notable, relatively recent instance in which the possibility of a recess appointment to the Court was raised occurred A notable, relatively recent instance in which the possibility of a recess appointment to the Court was raised occurred
on July 28, 1987, when Senate Minority Leader Robert Dole (R-KS) observed that President Reagan had the on July 28, 1987, when Senate Minority Leader Robert Dole (R-KS) observed that President Reagan had the
constitutional prerogative to recess appoint U.S. appellate court judge Robert constitutional prerogative to recess appoint U.S. appellate court judge Robert H. Bork to the Court. Earlier that month Bork to the Court. Earlier that month
Judge Bork had been nominated to the Court, and, at the time of Senator DoleJudge Bork had been nominated to the Court, and, at the time of Senator Dole’'s statement, the chair of Senate Judiciary s statement, the chair of Senate Judiciary
Committee, Sen. Committee, Sen. Joseph R. Biden Jr.Joe Biden (D-DE), had scheduled confirmation hearings to begin on September 15. With (D-DE), had scheduled confirmation hearings to begin on September 15. With
various Republican Senators accusing Senate Democrats of delaying the Bork hearings, Senator Dole offered as various Republican Senators accusing Senate Democrats of delaying the Bork hearings, Senator Dole offered as “"food food
for thoughtfor thought”" the possibility of President Reagan making a recess appointment of Judge Bork during Congress the possibility of President Reagan making a recess appointment of Judge Bork during Congress’'s August s August
recess. Michael Fumento, recess. Michael Fumento, “"Reagan Has Power To Seat Bork While Senate Stalls: Dole,Reagan Has Power To Seat Bork While Senate Stalls: Dole,”" The Washington Times, July , July
28, 1987, p. A3; also, Edward Walsh, 28, 1987, p. A3; also, Edward Walsh, “Reagan’"Reagan's Power To Make Recess Appointment Is Noted,s Power To Make Recess Appointment Is Noted,”" The Washington
Post, July 28, 1987, p. A8. Judge Bork, however, did not receive a recess appointment and, as a Supreme Court , July 28, 1987, p. A8. Judge Bork, however, did not receive a recess appointment and, as a Supreme Court
nominee, was rejected by the Senate in a 58-42 vote on October 23, 1987.nominee, was rejected by the Senate in a 58-42 vote on October 23, 1987.
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