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Supreme Court Appointment Process:
President’s Selection of a Nominee
Barry J. McMillion
Analyst on the Federal Judiciary
October 19, 2015
Congressional Research Service
7-5700
www.crs.gov
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Supreme Court Appointment Process: President’s Selection of a Nominee

Summary
The appointment of a Supreme Court Justice is an event of major significance in American
politics. Each appointment is of consequence because of the enormous judicial power the
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
never at all, during a particular President’s years in office. Under the Constitution, Justices on the
Supreme Court receive what can amount to lifetime appointments which, by constitutional
design, helps ensure the Court’s independence from the President and Congress.
The procedure for appointing a Justice is provided for by the 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.” 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 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, 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 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.
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, 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.
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, 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 Justice’s plan to retire, as
well as when 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 Senate’s consent,
when the Senate was in recess. Such “recess appointments,” however, were temporary, with their
terms expiring at the end of the Senate’s next session. Recess appointments have, at times, been
considered controversial because they bypassed the Senate and its “advice and consent” 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).
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 Report R44236, Supreme Court
Appointment Process: Consideration by the Senate Judiciary Committee, by Barry J. 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.
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Contents
Background ..................................................................................................................................... 1
How Supreme Court Vacancies Occur ............................................................................................ 2
Death of a Sitting Justice ........................................................................................................... 3
Retirement or Resignation of a Sitting Justice .......................................................................... 3
Nomination of a Sitting Justice to Chief Justice Position ......................................................... 4
Advice and Consent ......................................................................................................................... 5
The Role of Senate Advice ........................................................................................................ 5
Advice from Other Sources ....................................................................................................... 7
Criteria for Selecting a Nominee ..................................................................................................... 7
Political Considerations ............................................................................................................ 8
Professional Qualifications ....................................................................................................... 8
Integrity and Impartiality ......................................................................................................... 11
Other Factors ........................................................................................................................... 12
Background Investigations ............................................................................................................ 13
Speed by Which a President Selects a Nominee ........................................................................... 14
Vacancies Requiring Multiple Nominations ........................................................................... 16
Factors Affecting the Speed by Which a Nominee Is Selected ............................................... 17
Advance Notice of Vacancy .............................................................................................. 17
Strong Preference of President .......................................................................................... 17
Sense of Urgency .............................................................................................................. 18
When Vacancy Occurs ...................................................................................................... 18
Potential Drawbacks of Quickly Selecting a Nominee ........................................................... 20
Recess Appointments to the Court ................................................................................................ 20
Senate Resolution 334 ............................................................................................................. 21

Figures
Figure 1. Type of Professional Experience of U.S. Supreme Court Nominees at Time of
Nomination ................................................................................................................................. 10
Figure 2. Number of Days from Vacancy Announcement of Departing Justice to
President’s Public Announcement Identifying Nominee for Vacancy ........................................ 16

Contacts
Author Contact Information .......................................................................................................... 22
Acknowledgments ......................................................................................................................... 22

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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
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.

1 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
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
nominations, see CRS Report R44234, Supreme Court Appointment Process: Senate Debate and Confirmation Vote, by
Barry J. McMillion.
2 U.S. Supreme Court, The Supreme Court of the United States (Washington: Published by the Supreme Court with the
cooperation of the Supreme Court Historical Society, revised September 2006), p. 10. (Hereafter cited as Supreme
Court, Supreme Court of the United States.)
3 Of the 43 individuals who have served as President of the United States, 6 (Presidents Andrew Johnson, Franklin
Pierce, James A. Garfield, William McKinley, Calvin Coolidge, and Gerald R. Ford) made one Supreme Court
nomination each, while 3 others (Presidents William Henry Harrison, Zachary Taylor, and Jimmy Carter) were unable
to make a single nomination to the Court since no vacancies occurred on the Court during their presidencies. Note that
President Andrew Johnson’s single nomination to the Court was not approved by the Senate.
4 For instance, nine vacancies occurred on the Court during a 5 ½-year period of Franklin D. Roosevelt’s presidency,
with all of FDR’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 Washington’s nominations—
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.
5 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
compromise reached between “one group of men [who] feared the abuse of the appointing power by the executive and
favored appointments by the legislative body,” and “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
President.” 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, New York: Greenwood Press,
1968), p. 33. (Hereafter cited as Harris, Advice and Consent of the Senate.)
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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
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. Only one Justice has ever been impeached (in an episode which occurred in 1804),

6 Consider, for example, President John Adams’s fateful nomination in 1801 of John Marshall. During his more than 34
years of service as Chief Justice, Marshall, “more than any other individual in the history of the Court, determined the
developing character of America’s Federal constitutional system” and “raised the Court from its lowly, if not
discredited, position to a level of equality with the executive and legislative branches.” Henry J. Abraham, Justices and
Presidents: A Political History of Appointments to the Supreme Court, 3rd ed. (New York: Oxford University Press,
1992), p. 83. (Hereafter cited as Abraham, Justices and Presidents.) Looking back on his appointment a quarter century
before, Adams in 1826 was quoted as saying, “My gift of John Marshall to the people of the United States was the
proudest act of my life.” Charles Warren, The Supreme Court in United States History, rev. edition, 2 vols. (Boston:
Little Brown, 1926), vol. 1, p. 178.
7 “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
choice of his Cabinet, he cannot be held responsible for the administration of the executive branch.” Harris, Advice and
Consent of the Senate, p. 259.
8 The Senate “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 Nation’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
can span generations.” Sen. Daniel P. Moynihan, debate in Senate on Supreme Court nomination of Ruth Bader
Ginsburg, Congressional Record, vol. 139, August 2, 1993, p. 18142.
9 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.
10 U.S. Constitution, art. III, §1.
11 Alexander Hamilton, in Federalist Paper 78 (“The Judges as Guardians of the Constitution”), maintained that, while
the judiciary was “in continual jeopardy of being overpowered, awed, or influenced by its coordinate branches ... ,
nothing can contribute so much to its firmness and independence as permanency in office.” He added that if the courts
“are to be considered as the bulwarks of a limited Constitution against legislative encroachments, this consideration
will afford a strong argument for the permanent tenure of judicial offices, since nothing will contribute so much as this
to that independent spirit in the judges.... ” (Emphases added.) Benjamin Fletcher Wright, ed., The Federalist by
Alexander Hamilton, James Madison, and John Jay (Cambridge, MA: Belknap Press of Harvard University Press,
1966), p. 491 (first quote) and p. 494 (second quote). (Hereafter cited as Wright, The Federalist.)
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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
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. For example, death in office was common on the Court during the
first half of the 20th century—14 (or 41%) of 34 vacancies between 1900 and 1950 occurred as a
result of a Justice dying while serving on the Court. Additionally, all five Court vacancies
occurring between 1946 and 1954 were due to the death of a sitting Justice.14 Since 1954,
however, only 1 of 23 vacancies occurring on the Court was the result of a Justice dying while
still in office.15
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 87%, of 23 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.

12 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
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. “Chase’s impeachment and trial set a precedent of strict construction of
the impeachment clause and bolstered the judiciary’s claim of independence from political tampering.” David G.
Savage, Guide to the U.S. Supreme Court, 4th ed. (Washington: Congressional Quarterly Inc., 2004), vol. 1, p. 258.
(Hereafter cited as Savage, Guide to the U.S. Supreme Court.) In a few other instances, Justices have been the object 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,
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
Judiciary Committee begin a preliminary investigation into allegations that the Justice was guilty of various ethical
violations. See Charles Gardner Geyh, When Courts & Congress Collide (Ann Arbor, MI: The University of Michigan
Press, 2009), pp. 119-125; Lee Epstein et al., The Supreme Court Compendium: Data, Decisions & Developments, 4th
ed. (Washington: Congressional Quarterly Inc., 2007), p. 428. (Hereafter cited as Epstein, Supreme Court
Compendium.); 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’s table (Washington, GPO, 1907), vol. 3, sec. 2508.
13 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, “with Justices serving for an average of 15 years.” Supreme Court,
Supreme Court of the United States, p. 10. More recently, the Congressional Research Service, accounting for all
Justices who have completed their Court service (including the most recent vacating Justice, John Paul Stevens),
calculated an average length of service on the Court of 16.8 years. Of the nine Justices serving as of June 30, 2015, five
(Justices Scalia, Kennedy, Thomas, Ginsburg, and Breyer) have served more than the historical average of 16.8 years.
14 The five Justices whose deaths created vacancies during this period, in chronological order, were Chief Justice
Harlan F. Stone, Justice Frank Murphy, Justice Wiley B. Rutledge, Chief Justice Fred M. Vinson, and Justice Robert H.
Jackson.
15 Chief Justice William H. Rehnquist died on September 3, 2005.
16 Under 28 U.S.C. §371, Supreme Court Justices, like other Article III (tenure “during good Behaviour”) federal
judges, may retire, and be entitled to receive retirement compensation, in one of two ways—either by taking “senior
status” or by “retiring from office.” 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.
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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
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.
Note, however, that the scenario described above is a relatively rare occurrence. During the 1900-
2009 period, 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

(...continued)
(Hence, under this “Rule of 80,” 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
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
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 Justice’s resignation 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
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.
17 Carroll Kilpatrick, “Goldberg is Named to Stevenson Post,” Washington Post, July 21, 1965, p. A1.
18 On the controversies surrounding Justice Fortas’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,
2003), pp. 171-175. (Hereafter cited as Ward, Deciding to Leave); and Philip Warden and Aldo Beckman, “Fortas
Agrees to Quit, Nixon Aide Says,” Chicago Tribune, May 15, 1969, p. 7.
19 See, for example, the letter submitted by Justice David H. Souter to President Obama, announcing Justice Souter’s
intention to retire, at http://www.supremecourt.gov/publicinfo/press/DHSLetter.pdf.
20 The law provides that a Justice retiring under these provisions shall receive for the remainder of his lifetime “the
salary he is receiving at the date of retirement” 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).
21 “Moody Will Retire,” Washington Post, June 15, 1910, p. 1.
22 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 G. Roberts, Jr., 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 Associate Justice on the Court.
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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,
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 recently 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.

23 The other Associate Justices nominated for Chief Justice during the period were Edward D. White (1910), Harlan F.
Stone (1941), and Abe Fortas (1968). As noted previously, Justice Fortas’s nomination failed to receive Senate
confirmation.
24 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
how and why past Supreme Court Justices have left the Court, see Ward, Deciding To Leave, pp. 25-223. Ward, in
introduction at p. 7, explained that his book, among other things, examines the extent to which Justices, in their
retirement decisions, have been “motivated by strategic, partisan, personal, and institutional concerns.”
25 For a book-length examination of how several recent Presidents have selected nominees to serve on the Supreme
Court, see David Alistair Yalof, Pursuit of Justices: Presidential Politics and the Selection of Supreme Court Nominees
(Chicago: University of Chicago Press, 1999). (Hereafter cited as Yalof, Pursuit of Justices.) See also Greenburg,
Supreme Conflict, which examined in depth the processes followed by the Administrations of Presidents Ronald
Reagan, George H. W. Bush, William J. Clinton, and George W. Bush in selecting Supreme Court nominees; and
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).
26 Article II, Section 2, clause 2 of the U.S. Constitution.
27 See, for example, John Ferling, “The Senate and Federal Judges: The Intent of the Founding Fathers,” Capitol
Studies, vol. 2, Winter 1974, p. 66: “Since the convention acted at a time when nearly every state constitution, and the
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.”
28 See, for example, Harris, Advice and Consent of the Senate, p. 34: “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,
the recommendations—of the Senate or of individual members, before making a nomination.”
29 Michael J. Gerhardt, The Federal Appointments Process (Durham, NC: Duke University Press, 2003), p. 33.
(Hereafter cited as Gerhardt, The Federal Appointment Process.) The Constitution, Gerhardt added, “does not mandate
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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
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 need 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

(...continued)
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, however,
make it clear that the president or his nominees may have to pay a price if he ignores the Senate’s advice.” Ibid.
30 “To a certain extent, presidents have always looked to the Senate for recommendations and subsequently relied on a
nominee’s backers there to help move the nomination through the Senate.” George L. Watson and John A. Stookey,
Shaping America: The Politics of Supreme Court Appointments (New York, HarperCollins College Publishers, 1995),
p. 78. (Hereafter cited as Watson and Stookey, Shaping America.)
31 President Clinton’s search for a successor to retiring Justice Harry A. 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
to a decision after holding his options “close to the vest” for more than a month, “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
confirmation.” The advice he received included “sharp Republican opposition to one of his leading choices, Interior
Secretary Bruce Babbitt.” Gwen Ifill, “Clinton Again Puts Off Decision on Nominee for Court,” The New York Times,
May 11, 1994, p. A16.
In 2005, the Administration of President George W. Bush took pains to engage in a level of consultation with Senators
over prospective Supreme Court nominations that White House officials called unprecedented. Prior to the President’s
nominations to the Court of John G. Roberts Jr., Harriet E. Miers, and Samuel A. Alito Jr., the President and his aides
reportedly consulted with, and sought input from, the vast majority of the Senate’s Members. Prior to announcing the
Miers nomination, for instance, it was reported that “the President and his staff talked with more than 80 Senators.”
Deb Riechmann, “Bush Expected to Name High Court Nominee,” 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
the Senate Judiciary Committee and over two-thirds of Senate Democrats. Steve Holland, “Bush Completes
Consultations, Nears Court Decision,” Reuters News, September 30, 2005, at http://global.factiva.com.
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
process had been “rigorous and extensive” and included seeking “the advice of Members of Congress on both sides of
the aisle, including every member of the Senate Judiciary Committee.” U.S. President (Obama, Barack H.), “Remarks
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
32 “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.” 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
York: Rowman & Littlefield Publishers, 1999), pp. 19-20. (Hereafter cited as Abraham, Justices, Presidents and
Senators.) Senatorial courtesy, Abraham wrote, appeared to have been the sole factor in President Grover Cleveland’s
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.
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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
groups, 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.

33 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 H. Bork to replace vacating Justice Lewis F. Powell. Among them,
Sen. Robert C. Byrd (D-WV) said the Reagan Administration would be “inviting problems” by nominating Bork. The
chair of the Senate Judiciary Committee, Joseph R. Biden Jr. (D-DE), said that, while Bork was a “brilliant man,” it did
“not mean that there should be six or seven or eight or even five Borks” on the Court. Helen Dewar and Howard Kurtz,
“Byrd Threatens Stall on Court Confirmation,” The Washington Post, 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
Democrats to form a “solid phalanx” to block an “ideological court coup” by President Reagan. Al Kamen and Ruth
Marcus, “Nomination to Test Senate Role in Shaping of Supreme Court,” The Washington Post, July 1, 1987, p. A9.
President Reagan, nonetheless, nominated Judge Bork, only to have the nomination meet widespread Senate opposition
and ultimate Senate rejection.
34 Modern Presidents, one scholar wrote, “are often forced to arbitrate among factions within their own administrations,
each pursuing its own interests and agendas.” In recent Administrations, he maintained, the final choice of a nominee
“has usually reflected one advisor’s hard-won victory over his rivals, without necessarily accounting for the president’s
other political interests.” Yalof, Pursuit of Justices, p. 3. During the G.H.W. Bush presidency, for example, several of
the President’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. ‘The
one that was really pushing very strongly for [Souter] was [White House Counsel] Boyden [Gray]’, ... when President
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
Jones.” Barbara A. Perry and Henry J. Abraham, “From Oral History to Oral Argument: George Bush’s Supreme Court
Appointments,” in 41: Inside the Presidency of George H.W. Bush, ed. Michael Nelson and Barbara A. Perry (Ithaca:
Cornell University Press, 2014), pp. 170-71. (Hereafter cited as Perry and Abraham, Oral History to Oral Argument).
35 For numerous examples of Justices advising Presidents regarding Supreme Court appointments, both in the 19th and
20th centuries, see Abraham, Justices, Presidents and Senators, pp. 21-23; see also in Abraham’s earlier work, Justices
and Presidents, pp. 186-187 (Chief Justice William Howard Taft’s influence over President Warren G. Harding); pp.
233-234 (Justice Felix Frankfurter’s advice to President Franklin D. Roosevelt); p. 243 (former Chief Justice Charles
Evans Hughes’s and former Justice Owen J. Roberts’s advice to President Harry S Truman); and pp. 305-306 (Chief
Justice Warren Burger’s advice to President Richard M. Nixon).
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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. For political or other reasons, such nominee attributes as party affiliation,
geographic origin, ethnicity, religion, and gender may also be of particular importance to the
President.37 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 altered.
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.38
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,39
but also because of the public’s expectations that a Supreme Court nominee be highly qualified.40

36 Watson and Stookey, Shaping America, pp. 58-59.
37 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
Watson and Stookey, Shaping America, p. 60, and Abraham, Justices, Presidents, and Senators, pp. 59-60. 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 O’Connor to replace vacating Justice Potter Stewart, 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’Connor To Be an Associate 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.
38 While the “desire to appoint justices sympathetic to their own ideological and policy views may drive most
presidents in selecting judges,” the field of potentially acceptable nominees for most presidents, according to Watson
and Stookey, is narrowed down by at least five “subsidiary motivations”—(1) rewarding personal or political support,
(2) representing certain interests, (3) cultivating political support, (4) ensuring a safe nominee, and (5) picking the most
qualified nominee. Watson and Stookey, Shaping America, p. 59.
39 Commenting on the nature of the Court’s work, and the degree of qualification required of those who serve on the
Court, the ABA states the following: “The significance, range and complexity of the issues considered by the justices,
as well as the finality and nation-wide impact of the Supreme Court’s decisions, are among the factors that require the
appointment of a nominee of exceptional ability.” American Bar Association, ABA Standing Committee on the Federal
Judiciary: What It Is and How it Works, p. 10, online at http://www.americanbar.org/content/dam/aba/uncategorized/
GAO/Backgrounder.authcheckdam.pdf.
40 One of the “unwritten codes,” two scholars on the judiciary have written, “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
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
Supreme Court level.” Robert A. Carp and Ronald A. Stidham, Judicial Process in America, 3rd ed. (Washington: CQ
Press, 1996), pp. 240-241.
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With such expectations of excellence, Presidents often present their nominees as the best person,
or among the best persons, available.41 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.42 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.43
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.”44
Figure 1 reports, from 1945 to the present, the type of occupation held by an individual at the
time of his or her nomination to the Supreme Court.45 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 occupation engaged in by a nominee at the time of
his or her nomination has been service as a judge on a U.S. court of appeals (21, or 60%, of 35
nominees),46 followed by service as an official in the executive branch (8, or 23%, of 35

41 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.” U.S. President (Ford), “Remarks
Announcing Intention To Nominate John Paul Stevens To Be an Associate Justice of the Supreme Court,
November 28, 1975,” Public Papers of the Presidents of the United States, Gerald R. Ford, 1975, Book II
(Washington: GPO, 1977), p. 1917.
42 For lists of the professional, educational, and political backgrounds of every Justice serving on the Court from 1790
to 2007, see Epstein, Supreme Court Compendium, pp. 291-341.
43 A legal scholar notes that while the Constitution “does not preclude a president from nominating nonlawyers to key
Justice Department posts or federal judgeships,” the delegates to the constitutional convention and the ratifiers “did
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
consequences of and the need to devise a check against a president’s failure to nominate qualified people, particularly
in the absence of any constitutionally required minimal criteria for certain positions.” Gerhardt, The Federal
Appointments Process, p. 35.
44 American Bar Association, The ABA Standing Committee on the Federal Judiciary: What It Is and How It Works, p.
1, at http://www.abanet.org/scfedjud/federal_judiciary09.pdf. The role of the ABA in evaluating the President’s
nominee is discussed further in CRS Report R44236, Supreme Court Appointment Process: Consideration by the
Senate Judiciary Committee, by Barry J. McMillion.
45 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
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.
46 Of the 21 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
was 6.6 years (the median was 5.1 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 (served less than 3
months, nominated by President G.H.W. Bush), G. Harrold Carswell (7 months, President Nixon), Charles E.
Whittaker (9 months, President Eisenhower), John Marshall Harlan II (9 months, President Eisenhower), and Douglas
H. Ginsburg (1 year, President Reagan). Of the five, Carswell and Ginsburg were not confirmed. The five nominees
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 Samuel Alito Jr. (15.5 years, President G.W. Bush), Stephen Breyer (13.4 years,
Clinton), Warren E. Burger (13.2 years, Nixon), Ruth Bader Ginsburg (13.0 years, Clinton), and Anthony M. Kennedy
(12.6 years, Reagan).
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nominees).47 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.
Figure 1. Type of Professional Experience of U.S. Supreme Court Nominees at Time
of Nomination
(1945-Present)

Source: Congressional Research Service.

47 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
(William Rehnquist, Byron White) and three as Cabinet secretaries (Arthur Goldberg—Secretary of Labor, Tom
Clark—Attorney General, Frederick Vinson—Secretary of the Treasury).
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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 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 nominatino was approved by the Senate.
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, 11 (or 79%) of 14 nominees were serving as appellate judges immediately prior to
nomination.48 In contrast, since 1981, no nominees to the Court were engaged in private practice
or serving in elective office at the time of nomination.
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.”49
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.50 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.”51 Accordingly, Presidents
sometimes will cite the integrity or fairness of Supreme Court nominees to buttress the case for
their appointment to the Court.52

48 One scholar has observed that “[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
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 success.” Terri L. Peretti, “Where have all the politicians gone? Recruiting for the modern Supreme
Court,” Judicature, vol. 91, no. 3, November-December 2007, pp. 112, 117.
49 Watson and Stookey, Shaping America, p. 64.
50 In Federalist Paper 78 (“Judges as Guardians of the Constitution”), Hamilton extolled the “benefits of the integrity
and moderation of the Judiciary,” which, he said, commanded “the esteem and applause of all the virtuous and
disinterested.” Further, he maintained, there could “be but few men” in society who would “unite the requisite integrity
with the requisite knowledge” to “qualify them for the stations of judges.” Wright, The Federalist, p. 495 (first quote)
and p. 496 (second quote).
51 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.
52 For example, President George H.W. Bush, in announcing the nomination of David H. Souter to be an Associate
Justice in 1990, declared that he wanted “a Justice who will ably and fairly interpret the law,” and then added, “I
believe that we’ve set a good example of selecting a fair arbiter of the law.” U.S. President (Bush, George H.W.),
“Remarks Announcing the Nomination of David H. Souter To Be an Associate Justice of the Supreme Court of the
United States and a Question-and-Answer Session with Reporters,” Public Papers of the President of the United States,
George Bush, 1990, Book II (Washington: GPO, 1991), p. 1047. More recently, in 2005, in announcing the nomination
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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, however, that such
qualities, while “essential” for anyone sitting on the Supreme Court, “alone are insufficient,” and
that “[w]e need something more.”53 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.54
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.55
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).56

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of Samuel A. 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 Alito’s “distinguished record” but also by his “measured judicial temperament
and his tremendous personal integrity.” U.S. President (Bush, George W.), “Remarks Announcing the Nomination of
Samuel A. Alito Jr., To Be an Associate Justice of the United States Supreme Court,” Weekly Compilation of
Presidential Documents, vol. 41, November 7, 2005, p. 1626.
53 U.S. President (Obama, Barack H.), “Remarks 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.
54 Ibid.
55 See, for example, Greenburg, Supreme Conflict, pp. 238-243 (discussing the assessment of the Administration of
President George W. Bush in 2005 that John G. Roberts’s leadership abilities and interpersonal skills were important
qualities needed in a person under consideration for appointment to be Chief Justice).
56 The selection of Earl Warren for Chief Justice by President Eisenhower, for example, was due in part to Mr.
Warren’s relatively young age (62) at the time of appointment. According to one report, President Eisenhower
indicated “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
young.” Edward T. Folliard, “Ike Names Warren to High Bench,” The Washington Post, October 1, 1953, p. 2, col. 1.
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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,57 legal
scholars,58 or, on rare occasions, the American Bar Association (ABA).59 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.60

57 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
Clinton, it was reported, utilized a team of 75 lawyers in the Washington, DC, area, who “pore[d] over briefs,”
analyzed “mountains of opinions and speeches” and “comb[ed] through financial records,” of the “final contenders” for
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, “who, along with other aides, advised the president
during the search for a justice.” Under the team’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
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, “Who Are Clinton’s Vetters, and Why the Big Secret?” Legal
Times, vol. 16, June 21, 1993, pp. 1, 22-23.
58 “During President Gerald R. Ford’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
candidates.” Ibid. (Klaidman), p. 23.
59 Three Presidents—Dwight D. Eisenhower in 1957, Richard M. Nixon in 1971, and Gerald R. Ford in 1975—
requested the ABA’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
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
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 from author; hereafter cited
as CRS Report 96-446, ABA Historical Overview), for a narrative tracing the evolution of the ABA committee’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.
60 The five most recent Presidents—Reagan, George H.W. Bush, Clinton, George W. Bush, and Obama—all personally
interviewed their final candidates before selecting a nominee. “Both Reagan and the elder Bush relied more on their
staffs to pare down the list of nominees. They interviewed one or, at most, two prospects before making their decision,
compared to the five George W. Bush interviewed to replace Sandra Day O’Connor.” Greenburg, Supreme Conflict,
p. 314. Sonia Sotomayor, nominated to the Court in 2009 by President Obama, was reportedly one of four candidates
whom the President interviewed. Ruth Marcus, “An Easy Choice for Obama,” The Washington Post, May 27, 2009, p.
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During the pre-nomination 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 pre-nomination 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, 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 recent 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
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.61
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 and the date on which the President publicly identified
a nominee to replace the departing Justice.62 When a Justice steps down from the Court (or

(...continued)
A19. Likewise, Elena Kagan, nominated to the Court in 2010 by President Obama, was reportedly also one of four
candidates whom the President interviewed (and “was one of Mr. Obama’s runners-up” 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.
61 Greenburg, Supreme Conflict, p. 241.
62 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
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
before the Justice’s decision became public on April 6, 1994. In contrast, Justice O’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,
2005. Although some Presidents learn in advance of a Justice’s intention to retire or resign, the dates used in the
calculations for Figure 2 are those in which it was publicly known that a Justice was stepping down from the Court.
Additionally, the date a President publicly announced whom he intended to nominate to replace the departing Justice
might be different from the date that the nominee’s nomination was formally submitted by the President to the Senate.
For the purposes of this report, the date a President publicly announces whom he intends to nominate, rather than the
date the nomination is formally submitted to the Senate, is used as the end-point in measuring the number of days it
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announces his or her intention to do so), Presidents sometimes move 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 quickly, within days of the
vacating Justices publicly announcing their retirements from the Court.63
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.64 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, 2005.65
Most recently, President Obama’s Supreme Court selections were made within approximately one
month of the vacating Justices announcing their retirements from the Court. He selected Sonia
Sotomayor 25 days after Justice David Souter announced he was leaving the Court, and selected
Elena Kagan 31 days after Justice Stevens announced his retirement.


(...continued)
takes for a President to select a nominee.
63 In a “surprise announcement” 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 Burger’s replacement, and his intention to
nominate, upon Rehnquist’s confirmation as Chief Justice, Judge Antonin Scalia as an Associate Justice. Elder Witt,
“Rehnquist to Be Chief Justice, Reagan Names Scalia to Court,” Congressional Quarterly, June 21, 1986, p. 1399. Of
the vacancies included in Figure 2, this is the only instance of a (future) vacancy on the Court being publicly
announced on the same date as a President announcing his nominee for that same vacancy.
President G.H.W. Bush took only several days to announce nominees to fill the two vacancies that occurred during his
presidency. According to one source, “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....
Souter’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 Souter’s
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.” Perry and Abraham, Oral History to Oral Argument, pp. 172-73.
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
nominated for the Marshall vacancy. As recounted by former attorney general Thornburg, by the time a second vacancy
occurred, Judge Thomas “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.” Ibid., p. 175.
64 The vacancy created by the retirement of Sandra Day O’Connor is not included in Figure 2. The O’Connor vacancy
was one of two vacancies since 1975 that required multiple nominations for the vacancy to be filled. See the text below
the figure for a discussion of the O’Connor vacancy.
65 Likewise, as discussed in the text below, President G.W. Bush moved swiftly in selecting a third nominee to succeed
Justice O’Connor, announcing his choice of Samuel A. Alito Jr. for that office on October 31, 2005, four days after the
Miers nomination to that office was withdrawn.
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Figure 2. Number of Days from Vacancy Announcement of Departing Justice to
President’s Public Announcement Identifying Nominee for Vacancy
(Select Vacancies Occurring Since 1975)

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 two vacancies during this period that
required multiple nominations by a President in order for the vacancy to be fil ed (see the text of the report for
additional information).
* 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 serve on the Court as
Chief Justice.
** 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.
Vacancies Requiring Multiple Nominations
Figure 2 includes only those vacancies on the Court, occurring since 1975, that did not require
multiple nominations by a President in order for the vacancy to be filled. Specifically, since 1975,
there have been two vacancies on the Court that required multiple nominations by a President in
order for the vacancy to be filled. These two vacancies are not included in the figure.
The first vacancy during this period requiring 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 after Mr. Ginsburg withdrew his name
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from consideration,66 President Reagan nominated Anthony Kennedy (whose nomination was
ultimately approved by the Senate). Altogether, 138 days, or approximately 4.5 months, elapsed
from Justice Powell announcing his retirement to President Reagan nominating Anthony Kennedy
to the vacancy.67
The second vacancy requiring 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, 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.
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). 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.68
Strong Preference of President
If the President has a strong personal preference for a particular individual,69 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

66 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
Mary Belcher, “Ginsburg Confesses He Used Marijuana,” The Washington Post, November 6, 1987. See also Steven
V. Roberts, “Ginsburg Withdraws Name As Supreme Court Nominee, Citing Marijuana ‘Clamor,’” The New York
Times, November 8, 1987.
67 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.
68 According to one account, for example, the selection process for a possible vacancy occurring during the Obama
presidency “got its start in the weeks after Mr. Obama’s election [in 2008] when he gathered advisers in a conference
room in downtown Chicago one day. The court was on his mind. ‘Just because we don’t have a vacancy right now
doesn’t mean we shouldn’t work on it,’ he told the group, according to participants. ‘The day we get a vacancy, we
want to have a short list of people ready.’” Peter Baker and Adam Nagourney, “Sotomayor Pick a Product of Lessons
From Past Battles,” The New York Times, May 28, 2009, online at http://www.nytimes.com/2009/05/28/us/politics/
28select.html?pagewanted=all&_r=0.
69 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,
Ivy League credentials and a track record on the bench.... And by the time the [appointment] opportunity arrived, it
became her nomination to lose.” Ibid.
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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 Members of the
Senate, 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.
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.70
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.71 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

70 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
Jehl, “Mitchell Viewed as Top Candidate for High Court,” The New York Times, April 7, 1994, p. A1; Tony Mauro,
“How Blackmun Hid Retirement Plans,” New Jersey Law Journal, April 25, 1994, p. 18, at http://www.nexis.com.
Later, on the eve of his public retirement announcement, on April 6, 1994, Justice Blackmun was reported to have told
friends “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.” Ruth Marcus, “Blackmun Set To Leave High Court,” The Washington Post,
April 6, 1994, p. A1.
71 Ibid. (Marcus), pp. A1, A7.
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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 two 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.”72 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.73
(The Senate ultimately confirmed the Sotomayor nomination on August 6, 2009.)74
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.75 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.”76 Within three weeks he announced his selection of
John G. Roberts Jr. to succeed Justice O’Connor.77 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 was 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,

72 U.S. President (Obama, Barack H.), “Remarks 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.
73 See CRS Report RL33118, Speed of Presidential and Senate Actions on Supreme Court Nominations, 1900-2010, by
R. Sam Garrett and Denis Steven Rutkus (under heading “Activity During 2009”).
74 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
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
before to make and announce his selection of Sonia Sotomayor to succeed outgoing Justice Souter).
75 Sandra Day O’Connor, letter to President George W. Bush, July 1, 2005, available at
http://www.supremecourtus.gov/publicinfo/press/pr_07-01-05.html.
76 U.S. President (Bush, George W.), “Resignation of Justice Sandra Day O’Connor from the Supreme Court of the
United States,” Weekly Compilation of Presidential Documents, vol. 41, July 4, 2005, p. 1108.
77 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.
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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.78 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.79
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 note, however, that
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.80 Historically, when recesses between sessions

78 President G.W. Bush, for example, faced criticism for his selection of Harriet Miers to fill the vacancy created by
Justice O’Connor’s retirement. Prior to Ms. Miers’s request that her nomination be withdrawn, there had been
“increasingly heated debate over the depth of her conservative beliefs and her qualifications,” and her nomination “had
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,
especially since she had never been a judge.” David Stout and Timothy Williams, “Miers Ends Supreme Court Bid
After Failing to Win Support,” The New York Times, October 27, 2005, online at http://www.nytimes.com/2005/10/27/
politics/politicsspecial1/27cnd-scotus.html?pagewanted=all&_r=0.
79 It is “precisely when presidents fail to require thorough checks,” two scholars have written, “that trouble is likely.”
As illustrative, they cite the FBI investigation of President Richard M. Nixon’s Supreme Court nominee Clement F.
Haynsworth Jr. in 1969. “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
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
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
appointment process.” Watson and Stookey, Shaping America, p. 82.
80 Specifically, Article II, Section 2, Clause 3 of the U.S. Constitution empowers the President “to fill up all Vacancies
(continued...)
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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.81
Recess appointments, when they do occur, may cause controversy, in large part because they
bypass the Senate and its “advice and consent” role.82 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 1958.83
Senate Resolution 334
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.”84 The
resolution was adopted by a vote of 48-37, largely along party lines.85
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

(...continued)
that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next
Session.”
81 For a list and discussion of the 12 recess appointments to the Court, see Henry B. Hogue, “The Law: Recess
Appointments to Article III Courts,” Presidential Studies Quarterly, vol. 34, September 2004, pp. 656-673. For more
information on judicial recess appointments, see CRS Report RL33009, Recess Appointments: A Legal Overview, by
Vivian S. Chu, and CRS Report RS22039, Federal Recess Judges, by Louis Fisher (out of print, available from author).
82 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 [Warren’s] appointment, with Congress in
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
opinion would surely result in the subjection of the nominee’s interim behavior to floor debates and committee scrutiny
that, in turn, would jeopardize his independence of action.” John P. Frank and Julie Zatz, “The Appointment of Earl
Warren as Chief Justice of the United States,” Arizona State Law Journal, vol. 23, p. 731 (Fall 1991).
83 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 “nays” in opposition to either nomination). Justice Stewart, however,
received 17 nay votes at the time of his confirmation in 1959 (following his recess appointment in 1958). According to
one source, “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 states’
rights, plus a belief that making recess appointments to important office lessened the Senate’s power to ‘advise and
consent.’” “1959 Presidential Nominations,” 1959 CQ Almanac (Washington, D.C.: CQ Press, 1959), p. 664.
84 “Supreme Court Appointments,” Congressional Quarterly, September 2, 1960, p. 1520 (Hereafter cited as “Supreme
Court Appointments”).
85 Of Democratic Senators voting, 48 of 52 supported the resolution, while all 33 Republican Senators voting were
opposed. “Senate Adopts Foreign Aid, Medical Care Conference Reports; Increases Aid Amount on Supplemental;
Adopts Court Resolution,” Congressional Quarterly, September 2, 1960, p. 1540.
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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.86
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.87
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.”88
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.89

Author Contact Information

Barry J. McMillion

Analyst on the Federal Judiciary
bmcmillion@crs.loc.gov, 7-6025

Acknowledgments
Denis Steven Rutkus, former Specialist on the Federal Judiciary, worked on a prior version of this report
and Amber Wilhelm, Graphics Specialist in the Publishing and Editorial Resources Section of CRS,
worked on the figures included in this report.

86 Senator Philip A. Hart of Michigan, for example, argued that the Senate was “dreadfully handicapped” in considering
nominations to the Court that were the result of recess appointments. “Supreme Court Appointments,” p. 1520.
87 “Opposition to Recess Appointments to the Supreme Court,” debate in Senate on S.Res. 334, Congressional Record,
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 from author).
88 “Supreme Court Appointments,” p. 1520.
89 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
constitutional prerogative to recess appoint U.S. appellate court judge Robert H. Bork to the Court. Earlier that month
Judge Bork had been nominated to the Court, and, at the time of Senator Dole’s statement, the chair of Senate Judiciary
Committee, Sen. Joseph R. Biden Jr. (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 “food
for thought” the possibility of President Reagan making a recess appointment of Judge Bork during Congress’s August
recess. Michael Fumento, “Reagan Has Power To Seat Bork While Senate Stalls: Dole,” The Washington Times, July
28, 1987, p. A3; also, Edward Walsh, “Reagan’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
nominee, was rejected by the Senate in a 58-42 vote on October 23, 1987.
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