Supreme Court Appointment Process:
Consideration by the Senate Judiciary
Committee
Updated September 22, 2020
Congressional Research Service
https://crsreports.congress.gov
R44236

Supreme Court Appointment Process: Consideration by the Senate Judiciary Committee

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 appel ate court in the federal judiciary. To receive
appointment to the Court, a candidate must first be nominated by the President and then
confirmed by the Senate. Although not mentioned in the Constitution, an important role is played
midway in the process (after the President selects, but before the Senate considers) by the Senate
Judiciary Committee. Specifical y, the Judiciary Committee, rather than the Senate as a whole,
assumes the principal responsibility for investigating the background and qualifications of each
Supreme Court nominee, and typical y the committee conducts a close, intensive investigation of
each nominee.
Since the late 1960s, the Judiciary Committee’s consideration of a Supreme Court nominee
almost always has consisted of three distinct stages—(1) a pre-hearing investigative stage,
followed by (2) public hearings, and concluding with (3) a committee decision on what
recommendation to make to the full Senate.
During the pre-hearing investigative stage, the nominee responds to a detailed Judiciary
Committee questionnaire, providing biographical, professional, and financial disclosure
information to the committee. In addition to the committee’s own investigation of the nominee,
the FBI also investigates the nominee and provides the committee with confidential reports
related to its investigation. During this time, the American Bar Association also evaluates the
professional qualifications of the nominee, rating the nominee as “wel qualified,” “qualified,” or
“not qualified.” Additional y, prior to hearings starting, the nominee pays courtesy cal s on
individual Senators in their offices, typical y including some Senators who do not serve on the
Judiciary Committee.
Once the Judiciary Committee completes its investigation of the nominee, he or she testifies in
hearings before the committee. On average, for Supreme Court nominees who have received
hearings from 1975 to the present, the nominee’s first hearing occurred 43 days after his or her
nomination was formal y submitted to the Senate by the President.
Questioning of a nominee by Senators has involved, as a matter of course, the nominee’s legal
qualifications, biographical background, and any earlier actions as public figures. Other questions
have focused on social and political issues, the Constitution, particular court rulings, current
constitutional controversies, and judicial philosophy. For the most recent nominees to the Court,
hearings have lasted for four or five days (although the Senate may decide to hold more hearings
if a nomination is perceived as controversial—as was the case with Robert Bork’s nomination in
1987, who had 11 days of hearings).
Usual y within a week upon completion of the hearings, the Judiciary Committee meets in open
session to determine what recommendation to “report” to the full Senate. The committee’s usual
practice has been to report even those Supreme Court nominations opposed by a committee
majority, al owing the full Senate to make the final decision on whether the nomination should be
approved. Consequently, the committee may report the nomination favorably, report it
unfavorably, or report it without making any recommendation at al . Of the 15 most recent
Supreme Court nominations reported by the Judiciary Committee, 13 were reported favorably, 1
was reported unfavorably, and 1 was reported without recommendation.
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 the selection
of a nominee by the President, see CRS Report R44235, Supreme Court Appointment Process:
Congressional Research Service

Supreme Court Appointment Process: Consideration by the Senate Judiciary Committee

President’s Selection of a Nominee, by Barry J. McMil ion. 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. McMil ion.
Congressional Research Service

Supreme Court Appointment Process: Consideration by the Senate Judiciary Committee

Background
While the U.S. Constitution assigns explicit roles in the Supreme Court appointment process only
to the President and the Senate,1 the Senate Judiciary Committee, throughout much of the nation’s
history, has also played an important, intermediary role.2 From 1816, when the Judiciary
Committee was created, until 1868, more than two-thirds of nominations to the Supreme Court
were referred to the committee, in each case by motion. In 1868, the Senate determined, as a
general rule, that al nominations should automatical y be referred to appropriate standing
committees.3 Since then, al but seven Supreme Court nominations, with the most recent being in
1941, have been referred to the Judiciary Committee.4
Since the late 1960s, the Judiciary Committee’s consideration of a Supreme Court nominee
almost always has consisted of three distinct stages—(1) a pre-hearing investigative stage,
followed by (2) public hearings, and concluding with (3) a committee decision on what
recommendation to make to the full Senate.
Pre-Hearing Stage
Committee Questionnaire
Upon the President’s announcement of a nominee, the Judiciary Committee typical y initiates an
intensive investigation into the nominee’s background. One primary source of information is a
committee questionnaire to which the nominee responds in writing.5 The questionnaire asks the
nominee for detailed biographical and financial disclosure information,6 with responses to some

1 Article II, Section 2, clause 2, in pertinent part, provides that the President “shall nominate, and by and with the
Advice and Consent of the Senate, shall appoint ... Judges of the supreme Court.”
2 T his scope of this report involves the consideration of a Supreme Court nomination by the Senate Judiciary
Committee. For a report providing information and analysis related to the selection of a nominee for the Court by the
President, see CRS Report R44235, Suprem e Court Appointment Process: President’s Selection of a Nom inee, by
Barry J. McMillion. For a report providing information and analysis related to floor action on nominations, see CRS
Report R44234, Suprem e Court Appointm ent Process: Senate Debate and Confirm ation Vote, by Barry J. McMillion.
3 U.S. Congress, Senate, History of the Committee on the Judiciary, United States Senate, 1816-1981, S. Doc. 97-18,
97th Cong., 1st sess. (Washington: GPO, 1982), p. iv.; also, U.S. Congress, Senate, History of the Com m ittee on Rules
and Adm inistration—United States Senate, prepared by Floyd M. Riddick, Parliamentarian Emeritus of the Senate, S.
Doc. 96-27, 96th Cong., 1st sess. (Washington: GPO, 1980). Riddick provided, on pp. 21 -28, the full t ext of the general
revision of the Senate rules, adopted in 1868, including, on p. 26, the following rule: “When nominations shall be made
by the President of the United States to the Senate, they shall, unless otherwise ordered by the Senate, be referred to
appropriate committees... ”
4 T he seven nominations not referred to the Judiciary Committee were Edwin M. Stanton in 1869 (former Secretary of
War at time of nomination); Edward D. White in 1894 (sitting Senator); Joseph M. McKenna in 1897 (Attorney
General, former U.S. Representative); Edward D. White again, in 1910, nominated to be Chief Justice; William
Howard T aft in 1921 (former President); George Sutherland in 1922 (former Senator); and James F. Byrnes in 1941
(sitting Senator).
5 As of this writing, the committee treats the questionnaire’s biographical and financial disclosure sections as public
information. T he committee, however, treats as confidential (an d not available to the news media or the public) the
nominee’s responses to more sensitive questions, such as whether he or she ever had been under investigation for
possible violation of a civil or criminal statute.
6 For example, the Judiciary Committee’s questionnaire for Supreme Court nominee Sonia Sotomayor asked, among
other things, for
- a complete employment record;
- a list of all organizations in which the nominee had been a member;
Congressional Research Service
1

Supreme Court Appointment Process: Consideration by the Senate Judiciary Committee

questions requiring the retrieval, listing, and summarizing of voluminous information about the
nominee’s past experiences or activities.7 The questionnaire also asks the nominee about the
selection process that he or she experienced prior to being nominated by a President, including
the circumstances which led to the nominee’s nomination and any interviews with administration
officials and others that he or she had prior to being selected.8 Because of the labor-intensive
nature of the task, an Administration typical y wil aid the nominee in preparing and transmitting
the questionnaire to the Judiciary Committee.
A chief purpose of the questionnaire is to provide members of the Judiciary Committee and their
staffs with detailed pre-hearing information about the nominee.9 After delivery of the completed
questionnaire to the committee, however, some Members may formal y request in writing that the
nominee provide additional information to clarify or expand on what he or she has already
submitted. The nominee may then provide the committee with written responses to specific

- a list and copies of all her published writings and public statements;
- any judicial offices held and, if ever a judge, “ the 10 most significant cases over which you
presided,”
- citations for all opinions she had written, and citations to all cases in which she had been a panel
member but did not write an opinion;
- a list of any cases in which a litigant or party had requested that she recuse herself as a judge due
to an asserted conflict of interest, along with the reason for recusing or declining to recuse;
- identification of any position held or role played in a political campaign;
- a description of the 10 “ most significant litigated matters which you personally handled, whether
or not you were the attorney of record”;
- teaching experience, including titles of courses and subject matter of courses taught;
- the sources, amounts and dates of all anticipated deferred income and future benefits;
- the sources and amounts of all income received during the calendar year preceding nomination
and for the current calendar year;
- “ potential conflicts of interest when you first assume the position to which you have been
nominated”; and
- a description of instances and amount of time devoted in the past “ to serving the disadvantaged.”
See, concerning the Sotomayor nomination, “ Committee Questionnaire and Related Materials” link on the Senate
Judiciary Committee’s website, at http://www.judiciary.senate.gov/nominations/supreme-court/
sotomayor#Questionnaire.
7 In 2009, for example, in response to the Judiciary Committee’s questionnaire concerning her Sup reme Court
nomination, appellate judge Sonia Sotomayor accounted for almost 200 speeches she had delivered from the early
1990s to May 2009 and more than 140 conferences and events she had attended during her years as a federal judge.
Following the initial submission of her questionnaire, Judge Sotomayor provided the committee more than 200 items of
questionnaire supplement materials (including news articles, letters, memoranda, reports, videos, meeting minutes,
seminar and speech transcripts, and case citations.) Ibid.
8 For example, Judge Neil Gorsuch indicated in his questionnaire that he was initially contacted in early December of
2016 by Leonard Leo, a lawyer, executive vice president of the Federalist Society, and a member of the President -
elect’s transition team. Following this initial communication with Mr. Leo, and prior to his interview with President -
elect Donald T rump on January 14, 2017, Judge Gorsuch had interviews with Donald McGahn (a member of the
President -elect’s transition team and now current White House Counsel and Assistant to the President), Vice President -
elect Michael Pence, Steve Bannon (former Senior Advisor to the President), Mark Paoletta (former chief counsel and
assistant to Vice President Pence), and Reince Priebus (former Ch ief of Staff to the President). Judge Gorsuch also
indicated that during the selection process he had a conversation with Makan Delrahim (former Deputy Counsel to the
President).
9 Judge Brett Kavanaugh, the most recent nominee to have hearings, completed a 110-page public questionnaire that he
submitted on July 20, 2018 (10 days after his nomination was submitted to the Senate on July 10, 2018). Judge
Kavanaugh’s questionnaire is available at https://www.judiciary.senate.gov/download/07/21/2018/brett-m-kavanaugh-
sjq-public.
Congressional Research Service
2

Supreme Court Appointment Process: Consideration by the Senate Judiciary Committee

questions from the Senators, which in turn are made available as supplements to the questionnaire
to al committee members prior to the start of the nominee’s confirmation hearings.10
Committee Background Investigation
The Judiciary Committee’s confidential background investigation of a Supreme Court nominee
closely reviews, among other things, the nominee’s past professional activities. In this review,
committee members and staff examine the mission of entities that employed or otherwise retained
the services of the nominee and the nature and quality of the work product of the nominee while
in that service. To this end, the committee might seek and attain access to the nominee’s
confidential written work product or to other documents that the past employer might consider of
an internal nature and ordinarily not suitable for public release.11
If the nominee’s background includes prior service in the federal executive branch, the Judiciary
Committee as a whole, or some of its members, can be expected to seek access to records of the
nominee’s written work product from that service. Sometimes, however, a President might resist
such requests, citing the need to protect the confidentiality of advice provided, or decisions made,
by the nominee while having served within an Administration—and typical y invoking an
“executive privilege” or attorney-client privilege to support his refusal to make such information
available to the Judiciary Committee.12 In such an event, committee members or their staff might
then devote a significant amount of time, prior to confirmation hearings, to identifying and
justifying disclosure of specific kinds of documents that would aid the committee in making a
more informed evaluation of the nominee—as wel as to examining whatever documents are
eventual y released. In some cases, the committee may be in a position to exert leverage over an
Administration, particularly when a majority of the committee’s members are insistent that at
least some executive branch documents be released before the committee wil act on the
nomination. This, a CRS report notes, was the case in 1986, when the Judiciary Committee
prepared to consider the nomination of Wil iam H. Rehnquist to be Chief Justice.

10 For example, prior to the start, on July 13, 2009, of confirmation hearings on the Supreme Court nomination of Sonia
Sotomayor, the nominee’s completed questionnaire to the Judiciary Committee was supplemented by at least 10 letters
to the nominee from members of the committee or from the nominee responding to the Senators’ letters. See,
concerning the Sotomayor nomination, “Letters to and from Members of the Committee” link on the Judiciary
Committee’s website, at http://judiciary.senate.gov/nominations/SupremeCourt/upload/Sotomayor-MemberLetters.pdf.
11 In such a context, some members of the Judiciary Committee, prior to confirmation hearings for Supreme Court
nominee Sonia Sotomayor in 2009, sought for the committee internal documents of the Puerto Rican Legal Defense
and Education Fund (PRLDEF). Prior to becoming a federal judge, Judge Sotomayor, at various points during the
period 1980-1992, had worked for PRLDEF, including as a board member. Soon after being nominated to the Court,
Judge Sotomayor provided the Judiciary Committee with documents that she had contributed to or helped write as a
board member. Subsequently, however, some Judiciary Committee members requested more information, from the
fund itself, about cases it had handled and policy positions it took while Sonia Sotomayor was working on its behalf,
and ultimately the fund provided some of these requested materials to the Judiciary Committee. See T om LoBianco,
“Nominee Advised Critics of Bork; Legal Funding T ied to Sotomayor,” The Washington Times, July 2, 2009, p. A8;
also, “Papers Irrelevant, White House Says,” The Washington Times, July 3, 2009, p. A2.
12 When President George W. Bush was asked at a news conference whether he would release to the Judiciary
Committee some or all of Supreme Court nominee Harriet E. Miers’s legal work as White House counsel, he replied, “ I
just can’t tell you how important it is for us to guard executive privilege in order for there to be crisp decision making
in the White House.” Richard W. Stevenson, “President, Citing Executive Privilege, Indicates He’ll Reject Requests for
Counsel’s Documents,” The New York Times, October 5, 2005, at http://www.nexis.com. For the views, against the
backdrop of the Miers nomination, of a range of legal scho lars on the extent to which a President may properly invoke
executive privilege to deny the Senate the work product of a White House counsel nominated to the Supreme Court, see
Marcia Coyle, “Battle Looming over Privilege,” The National Law Journal, vol. 28, October 10, 2005, pp. 1, 21.
Congressional Research Service
3

Supreme Court Appointment Process: Consideration by the Senate Judiciary Committee

During the confirmation proceeding for the elevation of Justice Rehnquist to be Chief
Justice, the Judiciary Committee sought documents that he had authored on controversial
subjects when he headed DOJ’s Office of Legal Counsel. President Reagan asserted
executive privilege, claiming the need to protect the candor and confidentiality of the legal
advice submitted to Presidents and their assistants. But with opponents of Rehnquist [in
the Judiciary Committee] gearing up to issue a subpoena, the nomination of not only
Rehnquist but that of Antonin Scalia to be an Associate Justice, whose nominations were
to be voted on in tandem, were in jeopardy. President Reagan agreed to allow the
Committee access to a smaller number of documents, and Rehnquist and Scalia were
ultimately confirmed.13
In addition to the committee’s own investigation of the nominee, confidential FBI reports on the
nominee are another important information source. These are available only to committee
members and a smal number of designated staff under strict security procedures designed to
prevent unauthorized disclosure.
Courtesy Calls
During the pre-hearing stage, the nominee, in accordance with long-standing tradition, visits
Capitol Hil to pay “courtesy cal s” on individual Senators in their offices. For Senators not on the
Judiciary Committee, that may be the only opportunity to converse in person with the nominee
before voting on his or her confirmation to the Court. Senators may use these meetings to gain
firsthand impressions of the nominee and to discuss with the nominee issues that are important to
them in the context of the nomination.14

13 CRS Report RL32935, Congressional Oversight of Judges and Justices, by Elizabeth B. Bazan (out of print,
available to congressional clients upon request ). T he report, under the heading “ Judicial Nominations,” provides a more
detailed narrative of the 1986 conflict between the Judiciary Committee and the Reagan Administration over the
Rehnquist documents provided in Louis Fisher, The Politics of Executive Privilege (Durham, NC: Carolina Academic
Press, 2004), pp. 76-77.
Comparable requests from the Judiciary Committee produced mixed results in the case of President George W. Bush’s
Supreme Court nominees—John G. Roberts Jr., Harriet E. Miers, and Samuel A. Alito Jr., whose backgrounds all
included service in either the Department of Justice, the White House, or both. T he Bush Administration allowed the
release of some documents from each of the three nominees’ executive branch service, but refused the release of other
documents. See, for example: David G. Savage and Henry Weinstein, “Files from Roberts’ Reagan Years Are
Released,” Los Angeles Tim es, August 16, 2005, p. 12; William Branigin, “ Bush Will Not Release All Miers
Documents,” The Washington Post, October 24, 2005, at http://www.washingtonpost.com; and Susan Milligan, “T op
Democrats Question Alito’s Credibility,” Boston Globe, December 2, 2005, at http://www.nexis.com.
14 Brett Kavanaugh, for example, reportedly met with 65 Senators prior to the start of his confirmation hearings. During
his opening statement, Judge Kavanaugh stated that the term courtesy call “ understates how substantive and personal
our discussions have been. I have greatly enjoyed all 65 meetings. In listening to all of you, I have learned a great deal
about our country and the people you represent. Every Senator is devoted to public service and the public good, and I
thank all the Senators for their time and their thoughts.” Politico Staff, “Full text: Brett Kavanaugh confirmation
hearing opening statement,” Politico, September 4, 2018, online at https://www.politico.com/story/2018/09/04/full-
text-brett-kavanaugh-confirmation-hearing-opening-statements-806420.
In the weeks prior to the start of his confirmation hearings, Neil Gorsuch r eportedly met individually with more than 70
Senators. Seung Min Kim, “ How Gorsuch is preparing for Senate showdown,” Politico, March 14, 2017, available at
https://www.politico.com/story/2017/03/gorsuch-supreme-court-hearings-confirmation-236044.
Several weeks before the start of confirmation hearings on her nomination, Elena Kagan had reportedly made courtesy
calls to “more than 50” Senate offices. Sheryl Gay Stolberg, “A Knock -Down, Drag-Out—Yawn,” The New York
Tim es, June 3, 2010, p. 19.
President Obama’s first Supreme Court nominee, Sonia Sotomayor, reportedly made courtesy calls to 89 Senators prior
to the start of her confirmation hearings on July 13, 2009 . Mark Sherman, “ Sotomayor Arrives, Supreme Court Hearing
Under Way,” Associated Press Financial Wire, July 13, 2009, at http://www.nexis.com.
Congressional Research Service
4

Supreme Court Appointment Process: Consideration by the Senate Judiciary Committee

Evaluation by the American Bar Association
Also during the pre-hearing stage, the nominee is evaluated by the American Bar Association’s
Standing Committee on the Federal Judiciary,15 which is publicly committed to providing the
Senate Judiciary Committee with an impartial evaluation of the qualifications of each Supreme
Court nominee. A publication of the ABA committee stresses that each 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.”16 Performance of this evaluation role, the committee states, is intended to help “ensure
that the most qualified persons serve on the federal judiciary.”17 At the culmination of its
evaluation, the ABA committee votes on whether to rate a nominee “wel qualified,” “qualified,”
or “not qualified.”18
The rating of the ABA committee is then reported to each member of the Senate Judiciary
Committee, as wel as to the White House, the Department of Justice, and the nominee.19
Invariably, a nominee’s ABA rating receives prominent news coverage when it is sent to the
Senate Judiciary Committee. In the past, a unanimously positive rating by the ABA committee
has almost always presaged a favorable report by the Judiciary Committee on the nominee as
wel . Conversely, a divided vote, or less than the highest rating, by the ABA committee usual y
served to flag issues about the nominee for the Senate Judiciary Committee to examine at its

T he nominee immediately prior to Sotomayor, Samuel A. Alito Jr., was reported to have met privately with more than
80 Senators between his nomination on November 10, 2005, and his confirmation on Ja nuary 24, 2006. Jesse J.
Holland (Associated Press), “Senate Moves T oward Alito’s Confirmation,” Las Vegas Sun, January 25, 2006, at
http://www.lasvegassun.com.
Of the two Supreme Court nominees who immediately p receded Alito, John G. Roberts Jr. and Harriet E. Miers, one
paid numerous courtesy calls to Senate offices, while the other made fewer. “By the time Justice Roberts took the oath
before the Senate Judiciary Committee, he had met with more than half of the 100 members of the Senate.” By
contrast, a week prior to the withdrawal of her nomination, Miers was reported to have met “with only about 25
senators,” reportedly because the meetings that had been held “had been fraught with misunderstandings and
disagreements, giving ammunition to detractors.... ” Charles Hurt, “ Miers to End Her Meetings with Senators; Supreme
Court Nominee Will Cram for Hearings,” The Washington Times, October 21, 2005, p. A1.
15 T raditionally, this evaluation role has been performed at the official invitation of the chair of the Senate Judiciary
Committee. In 1947, the ABA committee was first invited by the committee’s chair, Sen. Alexander Wiley (R-WI), to
testify or file a recommendation on each judicial nomination receiving a hearing. Grossman, Joel B. Lawyers and
Judges: The ABA and the Politics of Judicial Selection (New York: John Wiley and Sons Inc., 1966), p. 64. A central
purpose of the Judiciary Committee, when it first invited the ABA committee to evaluate judicial nominees, was to
“help insure that only the highest caliber [of] men and women ascended to the bench .... ” Statement of Sen. Joseph R.
Biden Jr., chair of the Senate Judiciary Committee, in U.S. Congress, Senate Committee on the Judiciary, The ABA
Role in the Judicial Nom ination Process, hearing,101st Cong., 1st sess., June 2, 1989 (Washington: GPO, 1991), p. 2.
16 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.
17 Ibid. All 15 members of the ABA committee take part in its evaluation of a Supreme Court nominee . Committee
members conduct confidential interviews nationwide with practicing lawyers, judges, law professors, and others “ who
are in a position to evaluate the prospective nominee’s integrity, professional competence and judicial temperament.”
Meanwhile, teams of law school professors, as well as a separate team of pract icing lawyers, examine the legal writing
of a nominee. T he nominee as well is interviewed, specifically by the committee member or members from the judicial
circuit where the nominee has practiced or served as a judge; the chair of the committee also may p articipate in the
interview, if he or she so chooses. T he results of all of these inquiries are forwarded to the full ABA committee.
18 Since the inception of the ABA committee’s evaluating role, most, but not all, Supreme Court nominees have
received the highest ABA rating of “ well qualified,” while no nominees have been rated by a committee majority to be
“not qualified.”
19 T he rating is also posted for the public record on the ABA committee’s website at http://www.americanbar.org/
groups/committees/federal_judiciary/ratings.html.
Congressional Research Service
5

Supreme Court Appointment Process: Consideration by the Senate Judiciary Committee

confirmation hearings, and these issues in turn have sometimes been cited by Senators on the
Judiciary Committee who voted against reporting a nomination favorably to the Senate floor.
For the most part, from its inception in the late 1940s, and continuing through the next three
decades, the ABA committee evaluated Supreme Court nominees, as wel as nominees to lower
court judgeships, with bipartisan support in the Senate. In the 1980s and 1990s, however, the
committee came under criticism from some Senators who questioned its impartiality and the
usefulness of its evaluations to the Judiciary Committee.20 Notwithstanding those criticisms, and
variations in the recognition afforded it by chairs of the Judiciary Committee,21 the ABA
committee has continued, in recent Congresses, to appear on a regular basis before the Judiciary
Committee under both Republican and Democratic chairs. In keeping with long-standing practice,
the ABA committee chair was the first public witness to testify at Supreme Court confirmation
hearings in 2005, 2006, and 2009—to explain the ABA committee’s rating of nominees John G.
Roberts Jr., Samuel A. Alito Jr., and Sonia Sotomayor, respectively.22 At the Alito hearings, the
then-chair of the Judiciary Committee, Senator Arlen Specter (R-PA), observed that, in receiving
the testimony of outside witnesses at Supreme Court confirmation hearings, “our tradition is to
hear first from the American Bar Association and their evaluation of the judicial nominee.”23
Most recently, in 2010, in a minor break from this tradition, the ABA committee chair was not the

20 T he ABA committee has, in the past, been accused by some Senators, as well as by some conservative groups, of
holding a liberal ideological bias. T he committee’s ratings of judicial nominees Robert H. Bork in 1987 and Clarence
T homas in 1991 in particular were cited as demonstrating prejudice against nominees with conservative judicial
philosophies. T he ABA rating of Bork was unusual in that none of the committee’s 15 members voted for the
intermediate “qualified” rating—instead, 10 members rated Bork as “well qualified,” 4 members rated him “not
qualified,” and 1 member voted “not opposed.” For the T homas nomination, 12 of the committee’s 15 members found
the nominee “qualified,” 2 found him “unqualified,” and 1 abstained. None rated him “well qualified.” T he mid-level
rating of “ qualified” of the T homas nomination by the 12 -member majority was in contrast to the “ well qualified”
ratings that the ABA panel had unanimously given the two previous Supreme Court nominees, David H. Souter and
Anthony M. Kennedy. More recently, during the G.W. Bush presidency, the ABA committee unanimously rated John
G. Roberts Jr. as “well qualified,” as well as Samuel A. Alito Jr. (with one recusal).
21 In 1997, Senator Orrin G. Hatch (R-UT ), as chair of the Judiciary Committee, announced that, during his
chairmanship, the ABA committee would no longer be accorded an “ officially sanctioned role” in the judicial
confirmation process. “ One cannot assume,” Chairman Hatch wrote, “ that a group as politically active as the ABA can
at the same time remain altogether neutral, impartial and apolitical when it comes to evaluating judicial qualifications.”
Sen. Orrin G. Hatch, Letter to Colleagues on the Senate Judiciary Committee, February 24, 1997; also, Associated
Press, “Hatch Hits ABA’s Screening Role, The Washington Post, February 19, 1997, p. A4. However, in 2001, the
Judiciary Committee’s next chair, Senator Patrick J. Leahy (D-VT ), restored to the ABA committee a quasi-official
evaluating role, stating that the Judiciary Committee’s Democratic members would oppose votes on any of President
George W. Bush’s judicial nominees who were not first reviewed by the ABA committee. Audrey Hudson, “Democrats
Want ABA to Vet Judges,” The Washington Times, March 28, 2001, p. A4; “Democrats Say ABA’s Vetting of
Nominees Still Counts,” The Washington Post, March 28, 2001, p. A5. See also, for discussion of the ABA
committee’s role in evaluating judicial candidates, Sen. Patrick J. Leahy, “Nomination of Morrison C. England, Jr. T o
Be United States District Judge for the Eastern District of California,” Congressional Record, daily edition, vol. 148,
August 1, 2002, p. S7814.
22 U.S. Congress, Senate Committee on the Judiciary, Confirmation Hearing on the Nomination of John G. Roberts Jr.
To Be Chief Justice of the United States, 109th Cong., 1st sess., September 12-15, 2005 (Washingt on: GPO, 2005), pp.
451-455; U.S. Congress, Senate Committee on the Judiciary, Confirm ation Hearing on the Nom ination of Sam uel A.
Alito Jr. To Be an Associate Justice of the Suprem e Court of the United States, 109th Cong., 2nd sess., January 9-13,
2006 (Washington: GPO, 2006), pp. 641-654; (Hereinafter cited as Senate Judiciary Committee, Confirm ation Hearing
on John G. Roberts, and Senate Judiciary Committee, Confirm ation Hearing on Sam uel A. Alito.); “ Senate Judiciary
Committee Holds Hearing on the Nomination of Judge Sonia Sotomayor to be an Associate Justice of the U.S.
Supreme Court,” CQ Congressional Transcripts, July 16, 2009, at http://www.CQ.com.
T he ABA committee unanimously, in each instance, gave Roberts, Alito, Sotomayor, Kagan, Gorsuch, and Kavanaugh
its “well qualified” rating.
23 Senate Judiciary Committee, Confirmation Hearing on Samuel A. Alito, p. 640.
Congressional Research Service
6

Supreme Court Appointment Process: Consideration by the Senate Judiciary Committee

first public witness to testify at the confirmation hearings for Supreme Court nominee Elena
Kagan, but testified in a third panel of public witnesses (testifying first among those panelists).24
Public Debate
It is common, wel before the start of confirmation hearings, for public debate to begin on a
nominee’s qualifications and on the meaning of the nomination for the future of the Court. Much
of this debate is waged by commentators in the news media and increasingly, in recent years, on
internet sites and by advocacy groups that actively support or oppose a nominee.25 Senators, too,
sometimes contribute to this debate in Senate floor statements or other public remarks.26
Moreover, if a nominee is not quickly selected, groups who see their interests to be at stake by a
new Court appointment can be expected to begin mobilizing members, or seeking to affect public
or Senate opinion, before the President even selects a nominee. Their purpose in doing so might
be to influence the President’s choice or to galvanize the groups’ members and political al ies in
anticipation of whomever the President ultimately chooses to nominate.27
If the President’s choice of a nominee proves to be divisive, the pre-hearing phase wil be of
strategic concern to both those groups which support the nominee’s nomination, as wel as to
those groups which oppose it. During this phase, a political analyst has noted, “both sides wil

24 See “Continuation of the Nomination of Elena Kagan to be an Associate Justice of the Supreme Court of th e United
States—Official Hearing Notice/Witness List,” Senate Judiciary Committee, July 1, 2010, at
http://judiciary.senate.gov/hearings/hearing.cfm?id=4679.
25 For an account of interest group support of, or opposition to, recent Supreme Court nominations during the pre-
hearing stage, see “ Interest Groups React,” The National Law Journal, vol. 31, June 1, 2009, p. 23 (reporting, less than
a week after the selection of Sonia Sotomay or as a Supreme Court nominee, that her nomination “drew fervent praise
and equally impassioned criticism”); David D. Kirkpatrick, “ For Conservative Christians, Game Plan on the Nominee,”
The New York Tim es, August 12, 2005, p. 15; Jo Becker, “ T elevision Ad War on Alito Begins; Liberals T ry to Paint
Court Pick as T ool of the Right Wing,” The Washington Post, November 18, 2005, p. A3. For overviews of the role
that interest groups played during an entire appointment process (from the point of Justice Sandra Day O’Connor’s
retirement announcement until the point that her successor, Samuel A. Alito Jr. , was confirmed), see Lois Romano and
Julie Eilperin, “Republicans Were Masters in the Race to Paint Alito; Democrats’ Portrayal Failed to Sway the Public,”
The Washington Post, February 2, 2006, p. A1; David D. Kirkpatrick, “ Paving the Way for Alito Began in Reagan
Era,” The New York Times, January 30, 2006, pp. A1, A18.
26 Several Senators, for example, spoke favorably of Elena Kagan’s nomination prior to hearings being held on her
nomination. See floor remarks by Sens. Amy Klobuchar, Debbie Stabenow, and Jeanne Shaheen in “Nomination of
Elena Kagan,” Remarks in the Senate, Congressional Record, daily edition, June 16, 2010, p. S4956. Other Senators
expressed concern with the nomination prior to Ms. Kagan’s hearings. See, for example, floor remarks by Sen. Jon Kyl
in “Nomination of Elena Kagan,” Remarks in the Senate, Congressional Record, daily edition, May 17, 2010, p.
S3796. Most recently, prior to committee hearings being scheduled for Brett Kavanaugh, several Senators spoke
favorably of the Kavanaugh nomination. See, for example, floor remarks by Sen. John T hune, “Executive Session,”
Remarks in the Senate, Congressional Record, daily edition, July 31, 2018, p. S5467, and remarks by Sen. Shelley
Moore Capito, “Executive Session,” Remarks in the Senate, Congressional Record, daily edition, July 11, 2018, p.
S4891-S4892. Other Senators expressed concern with the Kavanaugh nomination. See, for example, floor remarks by
Sen. Elizabeth Warren, “Nomination of Brett Kavanaugh,” Remarks in the Senate, Congressional Record, Aug. 1,
2018, p. S5555, and remarks by Sen. Richard Blumenthal, “Executive Calendar,” Remarks in the Senate,
Congressional Record, July 11, 2018, p. S4897-S4898.
27 A news account reported that before George W. Bush’s announcement, on July 19, 2005, of his selection of John G.
Roberts Jr. to succeed Associate Justice Sandra Day O’Connor, the “prospect of filling the first Supreme Court vacancy
in 11 years” had “ already mobilized political forces on both sides to raise vast financial resources in preparation for a
struggle akin to a presidential campaign. From the moment O’Connor announced her retirement July 1, interest groups
have been airing television and Internet advertising, blitzing supporters with email, and pressuring elected officials to
stand strong.” Peter Baker and Jim VandeHei, “ Bush Chooses Roberts for Court,” The Washington Post, July 20, 2005,
p. A1. (Hereinafter cited as Baker, “ Bush Chooses Roberts”.)
Congressional Research Service
7

Supreme Court Appointment Process: Consideration by the Senate Judiciary Committee

move quickly to try to define the nominee.”28 The analysis, published in July 2005, only days
after Justice Sandra Day O’Connor announced her intention to retire, considered what might
happen if President George W. Bush’s choice to succeed Justice O’Connor immediately polarized
the Senate along party lines. In that event, it predicted the following scenario prior to the
nominee’s confirmation hearings:
First impressions are lasting impressions. If Republicans can create a positive image of a
Bush Supreme Court nominee in the public’s mind right out of the gate, that could help the
nominee withstand later efforts by critics to portray him or her as an extremist. Conversely,
if Democrats can quickly paint the president’s choice as ideologically driven and far out of
the mainstream, that could be a deathblow.29
However, even if a nominee is not a “consensus” choice attracting immediate support across the
political spectrum, the pre-hearing stage wil not necessarily be marked by sharp polarization in
the Senate (or by the immediate emergence of Senate opposition). Such partisan division, for
instance, was absent when President G.W. Bush, on July 19, 2005, announced his selection of
U.S. appel ate court judge John G. Roberts Jr. to succeed Justice O’Connor. While “[l]iberal
advocacy groups immediately assailed Roberts for his positions on abortion and other issues,”
and “Republican senators quickly ral ied behind Roberts,” Senate Democrats withheld immediate
criticism of the nominee—reportedly out of concern about fal ing into what the Senate
Democratic leader, according to aides, “considered a Republican trap of condemning a nominee
before hearings.”30
Similarly, after President Obama selected Sonia Sotomayor, Republican Senators spoke “in
cautious but measured tones about Sotomayor’s qualifications and fitness for the court while
Democrats” joined “the White House in singing her praises.”31 Another news account noted that
“Senate Republicans responded with restraint to the announcement [of Sotomayor’s nomination],
and their largely muted statements stood in sharp contrast to the fractious partisanship that has
defined court battles in recent decades.”32
Preparation for Hearings
As confirmation hearings approach, Judiciary Committee members and staff closely study the
public record and investigative information compiled on the nominee,33 and with the benefit of
such research, they prepare questions to pose at the hearings. Sometimes committee members

28 Kirk Victor, “T he Senate Showdown,” National Journal, vol. 37, July 9, 2005, p. 2185.
29 Ibid., p. 2186.
30 Baker, “Bush Chooses Roberts,” p. A1.
31 Associated Press, “Interest groups engaged in Sotomayor battle,” May 28, 2009.
32 Shailagh Murray and Michael D. Shear, “Obama Names Sotomayor to Supreme Court,” The Washington Post, May
27, 2009, available at http://www.washingtonpost.com/wp-dyn/content/article/2009/05/26/AR2009052601313.html.
33 See, for example, “Hanna Rosin,” “T hey’re Fishing on the Hill, but It’s No Vacation,” The Washington Post, August
4, 2005, p. C1 (describing the work of the “Noms Unit,” a “special unit of the 50-member Democratic staff of the
Senate Judiciary Committee, which in early August 2005 was tasked with investigating the background and past
writings or statements of Supreme Court nominee John G. Roberts prior to Roberts’ s confirmation hearings scheduled
to begin early the next month); see also Sheryl Gay Stolberg, “Out of Practice, Senate Crams for Battle over Court
Nominee,” The New York Times, July 8, 2005, pp. A1, A20 (describing the investigative and research roles of
Republican staff on the Senate Judiciary Committee in early July 2005, as it prepared for President George W. Bush to
select a nominee to succeed retiring Associate Justice Sandra Day O’Connor).
Congressional Research Service
8

Supreme Court Appointment Process: Consideration by the Senate Judiciary Committee

indicate in advance, either publicly or by communicating directly with the nominee, the kind of
questions they intend to ask at the hearings.34
For his or her part, the nominee also intensively prepares for the hearings, focusing particularly
on questions of law and policy likely to be raised by committee members. The Administration
assists the nominee in this effort by providing legal background materials and by conducting
mock hearing practice sessions for the nominee. At these sessions—also cal ed “murder boards,”
because of “their grueling demands on a judicial nominee”35—the nominee is questioned on the
full range of legal and constitutional issues that Senators on the Judiciary Committee can be
expected to raise at the nominee’s confirmation hearings.36
Hearings
Supreme Court nominations since 1949 have routinely received public confirmation hearings
before either the Senate Judiciary Committee or a Judiciary subcommittee.37 In 1955, hearings on

34 See, for example, Seth Stern, “Leahy Says He Will Ask Roberts About So-Called T orture Memo,” CQ Today,
August 29, 2005, at http://www.cq.com; Gary Delsohn, “ Feinstein to Seek Roberts’ Abortion Views”), Sacram ento
Bee, August 25, 2005, p. A1, at http://www.nexis.com; Sen. Arlen Specter, Letter to Hon. John G. Roberts Jr., August
23, 2005. In his August 23, 2005, letter, Sen. Specter, then chair of the Judiciary Committee, began by stating,
“Supplementing my letter on the Commerce Clause, this letter deals with Supreme Court decisions on the Americans
with Disabilities Act (ADA), which I intend to ask you about at your confirmation hearing.”
35 Elisabeth Bumiller, “Lengthy Practices Prepare Court Nominee for his Senate Hearings,” The New York Times,
September 1, 2005, p. A11.
36 In preparation for the hearings on his nomination to the Court in March 2017, Neil Gorsuch went “through his own
voluminous record of legal opinions” and underwent “‘murder boards’ to practice answering pointed questions from 20
probing senators. Some of his former law clerks [were] enlisted for hearing prep .... T hose aiding Gorsuch’s prep have
reviewed confirmation hearings from past Supreme Court nominees to determine what kinds of questions arise during
the high-profile, televised grilling sessions.” Seung Min Kim, “ How Gorsuch is preparing for his Senate showdown,”
Politico, March 14, 2017, available at https://www.politico.com/story/2017/03/gorsuch-supreme-court -hearings-
confirmation-236044.
Prior to the start of her confirmation hearings in July 2009, Supreme Court nominee Sonia Sotomayor reportedly
“endured weeks of insults, obnoxious questions and unwelcome drilling into her work as a judge and a lawyer—and it
was all on purpose, essentially a dress rehearsal for her confirmation hearings.” Jesse J. Holland (T he Associated
Press), “Mock Exercises Prepare Sotomayor for Hearings,” The Washington Post, July 10, 2009, at
http://www.washingtonpost.com. A day before the start of the confirmation hearings, another story reported, quoting an
Administration official, that Judge Sotomayor “and her helpers have been ‘going ov er questions she would expect to be
asked,’ based on her record and what she has discussed in visits with senators over the last few weeks.” Neil A. Lewis,
“Nominee Wraps Up Rehearsals” The New York Times, July 12, 2009, p. 16.
In preparation for his confirmation hearings in September 2005, Associate Justice nominee John G. Roberts Jr.
reportedly “participated in some 10 mock hearings of two to three hours each at the Justice Department, where
administration lawyers and a revolving cast of Judge Roberts’s colleagues and friends baited him with queries,
including those they anticipated from the three Democratic senators who are widely expected to be toughest on the
nominee.... ” Ibid. After Judge Roberts’s hearings were postponed (following the withdrawal of his Associate Justice
nomination and then his re-nomination, this time to be Chief Justice), he apparently participated in even more mock
hearings, for it was later reported that he “underwent at least a dozen murder boards in preparing for his hearings.”
Marcia Coyle, “Alito’s ‘Murder Board’ a Mix of the Legal Elite,” The National Law Journal, vol. 28, January 30,
2006, p. 7. Coyle, in the same article, reported that subsequently the next Supreme Court nominee, Samuel A. Alito Jr.,
also participated in a rigorous series of mock hearing sessions, in preparation for his confirmation hearings before the
Senate Judiciary Committee in early January 2006. Alito, she noted, “was shepherded through all of the murder boards
by a team that included Steve Schmidt, special advisor to the president in charge of the White House confirmation
team, and Harriet Miers, counsel to the president.” Coyle observed that the “well-handled U.S. Supreme Court nominee
is now a fixture in the political process, and much of the credit goes to those so-called murder boards, or preparation
sessions for the Senate confirmation hearings.”
37 Prior to 1916, the Judiciary Committee considered Supreme Court nominations behind closed doors. In 1916, for the
Congressional Research Service
9

Supreme Court Appointment Process: Consideration by the Senate Judiciary Committee

the Supreme Court nomination of John M. Harlan marked the beginning of a regular practice,
continuing to the present, of Court nominees testifying in-person before the Senate Judiciary
Committee.38 Additional y, in 1981, Supreme Court confirmation hearings were opened to gavel-
to-gavel television coverage for the first time when the committee instituted the practice at the
confirmation hearings for nominee Sandra Day O’Connor.
A confirmation hearing typical y begins with a statement by the chair of the Judiciary Committee
welcoming the nominee and outlining how the hearing wil proceed.39 Other members of the
committee follow with opening statements, and a panel of “presenters” introduces the nominee to
the committee.40 It is then the nominee’s turn to make an opening statement, after which begins
the principal business of the hearing—the questioning of the nominee by Senators serving on the
Judiciary Committee. Typical y, the chair begins the questioning, fol owed by the ranking

first time, the committee held open confirmation hearings on a Supreme Court nomination —that of Louis D.
Brandeis—to be an Associate Justice—at which outside witnesses (but not the nominee) testified. T he Brandeis
hearings, however, did not set immediately into place a new policy of open confir mation hearings for Supreme Court
nominations, since each of the next six nominations (from 1916 to 1923) was either considered directly by the Senate,
without referral to the Judiciary Committee, or was acted on by the committee without the holding of con firmation
hearings. From 1925 to 1946, public confirmation hearings for Supreme Court nominations became the more common
practice of the Judiciary Committee—during this period 11 Court nominations received public confirmation hearings
(while 5, prior to Senate approval, did not receive such hearings).
38 In 1925, Harlan F. Stone became the first Supreme Court nominee to appear in-person and testify at his confirmation
hearings. Notwithstanding Stone’s appearance at his hearings in 1925, the Judiciary Committ ee, over the next 30 years,
usually declined to invite Supreme Court nominees to testify if a confirmation hearing were held; as recently as 1954,
for example, Earl Warren did not appear at his confirmation hearings to be Chief Justice.
39 T he chair’s opening statement might also express views on the nomination and confirmation process or on
the nominee. For example, then-Judiciary Chairman Senator Patrick Leahy stated, in his opening remarks during
Supreme Court nominee Elena Kagan’s confirmation hearing, t hat “Elena Kagan earned her place at the top of the legal
profession. Her legal qualifications are unassailable.... I welcome questions to Solicitor General Kagan about judicial
independence, but let us be fair. Let us listen to her answers. T here is no basis to question her integrity and no one
should presume that this intelligent woman, who has excelled during every part of her varied and distinguished career,
lacks independence.” National Public Radio, “T ranscript: Leahy’s Statement on Kagan Hearing,” June 28, 2010,
available at http://www.npr.org/templates/story/story.php?storyId=128168185.
On at least one occasion, the chair’s opening statement has been interrupted by ot her members of the Judiciary
Committee. For example, on the first day of the most recent con firmation hearings held by the committee (for the
Kavanaugh nomination), “Senator Judiciary Chairman Chuck Grassley hadn’t even finished his opening statement as
order in the hearing broke down. Right before Grassley was slated to deliver it, the majority of Democrats on the
committee, with the exception of ranking member Dianne Feinstein, moved to adjourn the hearing, arguing that the
documents from Kavanaugh’s time in the [George W.] Bush White House that the Senate had received ... was a cause
for delay.” Alana Abramson and T essa Berenson, “Democrats Start Brett Kavanaugh Confirmation Hearings With
Fireworks,” Time, September 4, 2018, online at https://time.com/5385927/brett-kavanaugh-confirmation-hearings.
40 T he presenters often will include the Senators and, less frequently, Representatives from the state in which the
nominee is a resident or the state in which the nominee was born or has resided for much of his or her life. T he tradition
of home state Senators presenting a nominee to the Judiciary Committee does not obligate a home state Senator to
support (or imply that he or she will support) the nominee’s nomination at the time of the confirmation vote on the
floor. Recent instances of a home state Senator voting against the confirmation of a nominee whom they introduced to
the committee include Sen. Michael Bennet of Colorado (Go rsuch nomination), Sen. Scott Brown of Massachusetts
(Kagan nomination), and Sen. Frank Lautenberg of New Jersey (Alito nomination). Recently, a nominee has also been
introduced by a Senator who was not the nominee’s home state Senator at the time of his o r her nomination (Sen. Rob
Portman, of Ohio, was among those who introduced Brett Kavanaugh, of Maryland, at his committee hearings in 2020).
Other presenters at recent Supreme Court confirmation hearings have included a former President (Gerald R. Ford, a t
the 1987 hearings for Robert H. Bork); the Attorney General (William French Smith, at the 1981 hearings for Sandra
Day O’Connor, and Edward Levi, at the 1975 hearings for John Paul Stevens); a former Attorney General (Griffin B.
Bell, at the 1986 hearings for William H. Rehnquist); a former governor (Christine T odd Whitman, at the 2006
hearings for Samuel A. Alito Jr.); and a former Secretary of State (Condoleezza Rice at the 2018 hearings for Brett
Kavanaugh).
Congressional Research Service
10

link to page 16 link to page 16 Supreme Court Appointment Process: Consideration by the Senate Judiciary Committee

minority Member and then the rest of the committee in descending order of seniority, alternating
between majority and minority members, with a uniform time limit for each Senator during each
round.41 When the first round of questioning has been completed, the committee begins a second
round, which may be followed by more rounds, at the discretion of the committee chair.42
Nominations That Did Not Receive a Committee Hearing
Overal , from the nomination of Tom Clark in 1949 through the nomination of Brett Kavanaugh
in 2018, 35 of 39 Supreme Court nominations (90%) received hearings. Four nominations did not
receive hearings—the nomination of John Harlan in 1954 (renominated and confirmed in 1955);
John Roberts Jr. in 2005 (renominated to be Chief Justice and confirmed in 2005); Harriet Miers
in 2005; and Merrick Garland in 2016.
The most recent nomination not to receive a hearing, the nomination of Merrick Garland by
President Obama, is the second nomination to the Court since 1949 for which no hearings were
scheduled (hearings had been scheduled for the Roberts and Miers nominations prior to both
nominations being withdrawn by the President).
The Garland nomination is, however, distinct from the nomination of Mr. Harlan in 1954 in that
Mr. Harlan’s nomination was resubmitted in 1955, hearings were held on that nomination, and
Mr. Harlan was subsequently confirmed by the Senate.43
Number of Days from Nomination to First Committee Hearing
For nominees since 1975 who have received hearings, Figure 1 shows the number of days that
elapsed from the date on which the nomination was formal y submitted to the Senate to the date
on which the nominee had his or her first hearing before the Judiciary Committee.44
Of the 16 nominees listed in the figure, Robert Bork waited the greatest number of days (70) from
nomination to his first committee hearing, while John Paul Stevens waited the fewest number of
days (7).45 The Bork nomination, controversial at the time, was ultimately rejected by the Senate.

41 For example, for three recent nominations to the Court (Kagan, Sotomayor, and Alito), each Senator was allotted 30
minutes to question the nominee.
42 Almost invariably, the questioning is conducted exclusively by members of the committee. However, on at least two
occasions in the 20th century, a Senator who was not a committee member was allowed to join in the questioning of the
nominee. T his first instance, in 1941, involved Sen. Millard E. T ydings (D-MD) at the confirmation hearings for
nominee Robert H. Jackson; the second instance, in 1957, involved Sen. Joseph R. McCarthy (R-WI) at the
confirmation hearings for nominee William J. Brennan Jr. See James A. T horpe, “ The Appearance of Supreme Court
Nominees Before the Senate Judiciary Committee,” Journal of Public Law, vol. 18, 1969, p. 378 (Jackson hearings)
and p. 385 (Brennan hearings).
43 See CRS Insight IN10476, Senate Judiciary Committee Hearings for Supreme Court Nominations: Historical
Overview and Data, by Barry J. McMillion (out of print, available to congressional clients upon request).
44 It is common for a President to announce his choice for a vacancy prior to formally submitting the nomination to the
Senate. T ypically, at least for nominees since the mid-1970s, the nomination has been formally submitted to the Senate
within approximately one week of the President’s announcement. T here are, however, exceptions. For example, 43
days elapsed between President Reagan’s announcement that he was going to nominate Sandra Day O’Connor to the
Court and when the President actually submitted her no mination to the Senate. For the purposes of Figure 1, the date
on which the nomination is formally submitted (not the date on which the President announc es who he intends to
nominate) is used in the calculation. Using the date the nomination is submitted provides a better measure of how long
a nominee waits for hearings to begin once his or her nomination is formally submitted to the Senate.
45 Of nominees confirmed by the Senate, Clarence T homas waited the longest from nomination to first committee
hearing (64 days).
Congressional Research Service
11

link to page 16

Supreme Court Appointment Process: Consideration by the Senate Judiciary Committee

The length of time from the date when Judge Roberts was nominated to the Chief Justice position
to the date his hearings commenced was 6 days. However, because Judge Roberts’s nomination to
the Chief Justice position only delayed his already-scheduled confirmation hearings to replace
Justice O’Connor by several days, Figure 1 reports 45 days as the length of time from
nomination to first public committee hearing.
Figure 1. Number of Days from Nomination to First Committee Hearing
(Nominees Receiving a Hearing from 1975 to 2018)

Source: Congressional Research Service.
Notes: This figure shows, for nominees to the Supreme Court who received a hearing before the Senate
Judiciary Committee from 1975 through 2018, the number of days that elapsed from the date a nomination was
submitted to the Senate to the date of the nominee’s first committee hearing.
* John G. Roberts Jr. was initial y nominated to the judgeship vacated by Justice Sandra Day O’Connor. Fol owing
the death of Chief Justice Wil iam Rehnquist, the Roberts nomination was withdrawn by President George W.
Bush and Mr. Roberts was subsequently nominated by President Bush to serve on the Court as Chief Justice.
The withdrawal of the initial nomination and the subsequent nomination for the Chief Justice position occurred
on the same date (September 6, 2005). Mr. Roberts had his first committee hearing, as a nominee to replace
Chief Justice Rehnquist, 6 days after he was nominated to fil the Rehnquist vacancy.
** 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.
Congressional Research Service
12

link to page 16 link to page 16 Supreme Court Appointment Process: Consideration by the Senate Judiciary Committee

Note that Judge Roberts was initial y nominated to fil the vacancy that would be created by the
retirement of Justice Sandra Day O’Connor.46 While Judge Roberts’s nomination was pending for
that anticipated vacancy, Chief Justice Rehnquist died on September 3, 2005. Following Chief
Justice Rehnquist’s death, Judge Roberts’s nomination for the anticipated O’Connor vacancy was
withdrawn and he was instead nominated to fil the immediate vacancy created by Chief Justice
Rehnquist’s death. The withdrawal of his nomination for the O’Connor vacancy and the
submission of his nomination for the Rehnquist vacancy occurred on the same date (September 6,
2005).
At the time he was nominated for the Chief Justice position, Judge Roberts’s nomination to
replace Justice O’Connor had been pending for 39 days. Judge Roberts’s nomination to the Chief
Justice position only delayed his already-scheduled confirmation hearings to replace Justice
O’Connor by several days.47 Altogether, considering both of his nominations, Judge Roberts
waited a total of 45 days from the initial nomination to replace Justice O’Connor to the first
committee hearing date to replace Chief Justice Rehnquist. As shown by Figure 1, this 45-day
interval is similar to the wait time experienced by other recent nominees.
For the 16 nominees listed in Figure 1, the average number of days from nomination to first
committee hearing is approximately 43 days, while the median is 46 days.48 If 6 days (rather than
45 days) is used as the time interval that Mr. Roberts waited from nomination to his first
committee hearing, the average number of days from nomination to first committee hearing is 41
days, while the median is 45 days.
For the eight Justices who, as of September 22, 2020, are serving on the Court, the average
number of days from nomination to first committee hearing is 52 days, while the median is 53
days. If 6 days (rather than 45 days) is used as the time interval that Judge Roberts waited from
nomination to his first committee hearing, the average number of days from nomination to first
committee hearing is 48 days, while the median remains 53 days.
Purposes of Questioning the Nominee
For members of the Judiciary Committee, questioning of the nominee may serve various
purposes. As already noted, for Senators who are undecided about the nominee the hearings may
shed light on the nominee’s fitness, and hence on how they should vote. Other Senators, as the
hearings begin, may already be “reasonably certain about voting to confirm the nominee,” yet
“also remain reasonably open to counter-evidence,” and thus use the hearings “to pursue a line of
questioning designed to probe the validity of this initial favorable predisposition.”49 Stil others,
however, may come to the hearings “having already decided how they wil vote on the

46 Justice O’Connor’s retirement announcement indicated that she would retire “upon the nomination and confirmation
of my successor.” T he letter announcing her retirement is available online at https://www.supremecourt.gov/publicinfo/
press/oconnor070105.pdf.
47 See James Kuhnhenn, “Senate expands focus of questions for Roberts as Chief Justice,” McClatchy, Knight Ridder
Newspapers, September 6, 2005, available at https://www.mcclatchydc.com/latest-news/article24449263.html.
48 T he mean is equivalent to the arithmetic average. T he mean or average is calculated by adding a group of numbers
and then dividing that value by how many numbers there are, while the median is the middle value for a particular set
of numbers (i.e., half of the numbers are above the median and half of the numbers are below it). Although the average
or mean is a more commonly used measure, the median is less affected by outliers or extreme cases (e.g., nominees for
whom the time from nomination to first committee hearing was relatively much shorter or longer than it was for other
nominees). Consequently, the median might be a better measure of central tendency.
49 George L. Watson and John A. Stookey, Shaping America: The Politics of Supreme Court Appointments (New York,
HarperCollins College Publishers, 1995), p. 150. (Hereinafter cited as Watson and Stookey, Shaping Am erica.)
Congressional Research Service
13

Supreme Court Appointment Process: Consideration by the Senate Judiciary Committee

nomination” and, accordingly, use their questioning of the nominee to try “to secure or defeat the
nomination.”50
A Senator may even be initial y undecided about whether he or she supports a nominee of a
President belonging to the same party as the Senator. One reason for this is that a Senator might
question whether a nominee is sufficiently committed to a particular judicial philosophy or
ideological perspective—and, consequently, might view the committee hearings as important in
determining whether a nominee might be supportive of the Senator’s preferred judicial
philosophy or ideological disposition.51
For some Senators, the hearings may be a vehicle through which to impress certain values or
concerns upon a nominee in the hope of influencing how he or she might approach issues later as
a Justice.52 The hearings, to some Senators, also may represent an opportunity to draw the
public’s attention to certain issues, to advocate their policy preferences, or to associate
themselves with concern about certain problems. Senators, it has also been noted, “may play
multiple roles in any given hearing.”53
Types of Questions Posed to Nominee
In recent decades, most nominees have undergone rigorous questioning in varying subject areas.
They have been queried, as a matter of course, about their legal qualifications, private
backgrounds, and earlier actions as public figures. Other questions have focused on social and
political issues, the Constitution, particular Court rulings, current constitutional controversies,
constitutional values, judicial philosophy, and the analytical approach a nominee might use in
deciding issues and cases.54

50 Ibid., p. 152.
51 For example, following President G.W. Bush’s nomination of Harriet Miers, Senator John T hune (R-SD) stated that
“conservatives see this (nomination) as having enormous stakes, that’s why there’s a lot of anxiety and uncertainty as
to where she’s really going to come down,” and that in her committee hearings “she’s going to have to give a very good
insight into her judicial philosophy, whether she’s an originalist, whether she’s exercise judicial restraint. T hose
hearings are going to be enormously importan t.” T om Curry, “ Sen. Brownback is key to nominee Miers’ fate,” NBC
News, October 6, 2005, at http://www.nbcnews.com/id/9604860/ns/us_news-the_changing_court/t/sen-brownback-key-
nominee-miers-fate/#.VeimfvnjB-M. Sen. Sam Brownback (R-KS), a member of the Judiciary Committee at the time
of the Miers nomination, stated, “there’s precious little to go on and a deep con cern that this would be a Souter-type
candidate.” Scott Benjamin, “Conservatives Divided On Miers, CBS News, October 5, 2005, available at
http://www.cbsnews.com/news/conservatives-divided-on-miers. Ultimately, Ms. Miers asked President G.W. Bush to
withdraw her nomination prior to her first committee hearing.
52 See Stephen J. Wermiel, “Confirming the Constitution: T he Role of the Senate Judiciary Committee,” Law and
Contem porary Problem s, vol. 56, Autumn 1993, p. 141, in which the author maintained that, since the 1987 hearings
on Supreme Court nominee Robert H. Bork, a purpose of Senators on the Judiciary Committee has been “to identify
points of constitutional concern and pursue those concerns with nominees, with the hope that, once confirmed, the new
Justices will remember the importance of the core values urged on them by the senators or at least feel bound by the
assurance they gave during their hearings.”
53 Watson and Stookey, Shaping America, p. 155.
54 For example, some of the questions posed to Neil Gorsuch asked about his views, generally, on legal precedent; his
former role and views as a Justice Department official on issues related to torture, the habeas corpus rights of
Guantanamo detainees, warrantless surveillance, and the scope of the President’s power as commander-in-chief to
ignore statutes; and his views on how to apply new technologies to constitutional principles. See Matt Flegenheimer,
Adam Liptak, Carl Hulse, and Charlie Savage, “ Seven Highlights From the Gorsuch Confirmation Hearings,” New
York Tim es, March 21, 2017, available online at https://www.nytimes.com/2017/03/21/us/politics/neil-gorsuch-
confirmation-hearings.html. For additional information related to the types of questions posed to Supreme Court
nominees, see CRS Report R41300, Questioning Suprem e Court Nom inees About Their Views on Legal or
Constitutional Issues: A Recurring Issue, by Denis Steven Rutkus (out of print, available to congressional clients upon
Congressional Research Service
14

Supreme Court Appointment Process: Consideration by the Senate Judiciary Committee

Stil other questions may concern past public statements made by the nominee, or (if the nominee
has prior judicial experience) particular rulings handed down by the nominee.55 To many
Senators, eliciting testimony from the nominee may be seen as an important way to gain insight
into his or her professional qualifications, temperament, and character. Some Senators, as wel ,
may hope to glean from the nominee’s responses signs of how the nominee, if confirmed to the
Court, might be expected to rule on issues of particular concern to the Senators.56
For his or her part, however, a nominee might sometimes be reluctant to answer certain questions
that are posed at confirmation hearings.57 A nominee might decline to answer for fear of
appearing to make commitments on issues that later could come before the Court.58 A nominee

request).
55 For instance, at her confirmation hearings in July 2009, Supreme Court nominee Sonia Sotomayor was asked
questions about public statements she had made prior to her nomination (and which opponents of her nomination had
criticized) of appellate judges making policy and of the experiences of a “wise Latina woman” versus those of a white
male judge. Senators on the Judiciary Committee also asked her about her participation in a controversial three-judge
appellate panel ruling in a case involving reverse discrimination allegations by a group of white firefighte rs against city
officials in New Haven, Connecticut (a ruling reversed by the Supreme Court in June 2009, after Judge Sotomayor’s
nomination to the Court but prior to the start of her confirmation hearings) . See T ony Mauro, “ During Senate
Questioning, Sotomayor Explains Controversial Statements, Defends Rulings,” The National Law Journal, July 15,
2009, at http://www.law.com; Peter Baker and Neil A. Lewis, “ Republicans Press Judge About Bias and Activism,”
The New York Tim es, July 15, 2009, pp. A1, A15; and T om LoBianco, “ Nominee Hit with Hot -Button Issues;
Sotomayor Explains ‘Wise Latina’ Again,” The Washington Times, July 16, 2009, p. A9. During another recent
confirmation hearing, Supreme Court nominee Neil Gorsuch “dist anced himself” from previous statements he made
criticizing liberals for preferring litigation to the political process. Specifically, in a 2005 essay he characterized liber als
who sought certain policy changes as being “addicted to the courtroom.” During his testimony before the Judiciary
Committee he indicated he had been wrong to single out liberals and that “the problem lies on both sides of the aisle.”
See Matt Flegenheimer, Adam Liptak, Carl Hulse, and Charlie Savage, “Seven Highlights From the Gorsuc h
Confirmation Hearings,” New York Times, March 21, 2017, available online at https://www.nytimes.com/2017/03/21/
us/politics/neil-gorsuch-confirmat ion-hearings.html.
56 See, for example, Charles Babington, “On Question of Nominee Questions, No Clear Answer,” The Washington
Post, July 28, 2005, p. A6, which examined the issue facing Senators on the Judiciary Committee, prior to confirmation
hearings for Supreme Court nominee John G. Roberts Jr, “ of what should be asked and answered—or not answered—
in confirmation hearings later this summer.”
57 Neil Gorsuch, for example, declined to answer questions related to his personal views on various rulings by t he
Supreme Court. According to one account, Mr. Gorsuch had “rewritten the playbook for Supreme Court nominees by
refusing to share his personal views on even the most widely accepted landmark cases during his Senate confirmation
hearing. His strict adherence to a game plan of dodging questions on his personal views or legal philosophy on even the
most accepted rulings that desegregated schools and established the right to contraception allowed him to sidestep a
variety of political landmines that could have given” Senators a reason to oppose his nomination to the Court.
Alexander Bolton and Lydia Wheeler, “Gorsuch rewrites playbook for confirmation hearings,” The Hill, March 22,
2017, online at http://thehill.com/homenews/news/325343-gorsuch-rewrites-playbook-for-confirmation-hearings. See,
also, William G. Ross, “ T he Questioning of Supreme Court Nominees at Senate Confirmation Hearings: Proposals F or
Accommodating the Needs of the Senate and Ameliorating the Fears of the Nominees,” Tulane Law Review, vol. 62,
November 1987, pp. 109-174.
58 Illustrative of such a concern was the following statement by nominee David H. Souter, at a September 14, 1990,
hearing, explaining his refusal to answer a question concerning the issue of a woman’s right, under the Constitution, to
have an abortion: “Anything which substantially could inhibit the court’s capacity to listen truly and to listen with as
open a mind as it is humanly possible to have should be off-limits to a judge. Why this kind of discussion would take
me down a road which I think it would be unethical for me to follow is something that perhaps I can suggest, and I will
close with this question.
“Is there anyone who has not, at some point, made up his mind on some subject and then later found reason to change
or modify it? No one has failed to have that experience. ... With that in mind can you imagine the pressure that would
be on a judge who had stated an opinion, or seemed to have given a commitment in these circumstances to the Senate
of the United States, and for all practical purposes, to the American people?” U.S. Congress, Senate Committee on the
Judiciary, Nom ination of David Souter To Be Associate Justice of the Suprem e Court of the United States, hearings,
Congressional Research Service
15

Supreme Court Appointment Process: Consideration by the Senate Judiciary Committee

also might be concerned that the substance of candid responses to certain questions could
displease some Senators and thus put the nominee’s chances for confirmation in jeopardy.59
For their part, committee members may differ in their assessments of a nominee’s stated reasons
for refusing to answer certain questions.60 Some may be sympathetic and consider a nominee’s
refusal to discuss certain matters of no relevance to his or her fitness for appointment, or as
il ustrative of a commendable inclination not to be “pinned down” on current legal controversies.
Others, however, may consider a nominee’s views on certain subjects as important to assessing
the nominee’s fitness and hence regard unresponsiveness to questions on these subjects as
sufficient reason to vote against confirmation.61 Protracted questioning, occurring over several
days of hearings, is likely if a nominee is relatively controversial or is perceived by committee
members to be evasive or insincere in responding to certain questions, or if Senators perceive
certain issues to merit extended discussion.62
Public Witnesses
After questioning of the nominee has been completed, the committee, in subsequent days of
hearings, also hears testimony from public witnesses.63 As stated earlier, among the first to testify

101st Cong., 2nd sess., September 13, 14, 17, 18 and 19, 1990 (Washington: GPO, 1991), p. 194.
59 In one account, one journalist has written, the perspective of Supreme Court nominee John G. Roberts Jr., as he
prepared for his 2005 confirmation hearings, was that he “knew he could afford no mistakes. He worried that one
answer, one ten-second response to one question over the course of fifteen hours of questioning, could doom his
chances.” Jan Crawford Greenburg, Supreme Conflict: The Inside Story of the Struggle for Control of the United States
Suprem e Court (New York: Penguin Press, 2007), p. 234.
60 As early as 1959, at the confirmation hearings for Supreme Court nominee Potter Stewart, there is a record of
Judiciary Committee members differing among themselves as to appropriateness of certain areas of questioning for the
nominee. During the hearings, Sen. T homas C. Hennings Jr. (D-MO) raised a point of order about interrogating a
nominee on his “ opinion as to any of the questions or the reasoning upon decisions which have heretofore ... [been]
handed down” by the Supreme Court. T he point of order, however, was overruled by the committee’s chair, Sen. James
O. Eastland (D-MS), who stated the rule he would follow: “ [I]f the nominee thinks that the question is improper, that
he can decline to answer. And that when he declines, his position will be respected.” L.A. Powe Jr., “T he Senate and
the Court: Questioning a Nominee,” Texas Law Review, vol. 54, May 1976, p. 892, citing an unpublished transcript of
the April 9 and 14, 1959, hearings of the Senate Judiciary Committee on the Supreme Court nomination of Potter
Stewart, pp. 43-44.
61 T hat noncommittal replies by a Supreme Court nominee may be regarded differently by Senators on the Judiciary
Committee appeared to be borne out at the confirmation hearings in September 2005 for Chief Justice nominee John G.
Roberts Jr. In his first day of testimony, Roberts “was Delphic,” according to one news analysis, “and his supporters
and critics each ended the day saying his performance had hardened their enthusiasm or their doubts.” T odd S. Purdum,
“With His Goal Clear, the Nominee Provides a Profile in Caution During Questioning,” The New York Times,
September 14, 2005, p. 25.
62 For example, Judge Robert H. Bork, a controversial nominee of President Reagan’s to be an Associate Justice, had
11 days of hearings during the period from September 15, 1987 to September 30, 1987. T he Bork nomination was later
rejected by a 42-58 vote on the Senate floor. In contrast, Judge Anthony M. Kennedy, nominated to the same vacancy
for which Bork was rejected, had 3 days of hearings and was later confirmed by a unanimous vote of 97 -0. More
recently, Elena Kagan had four days of hearings, Sonia Sotomayor had four days, Samuel Alito Jr. had five days, and
John Roberts Jr. had four days.
63 For example, during the hearings on the Kavanaugh nomination, “witnesses testifying in support of Kavanaugh
included longtime friends and former law clerks. T hey talked about his intelligence and open -mindedness, calling him
‘thoughtful,’ ‘humble,’ ‘wonderfully warm,’ and a ‘fair-minded and independent jurist.’” In contrast, other witnesses
“expressed concern about Kavanaugh’s record on a number of issues including affirmative action, the rights of people
with disabilities, access to birth control and abortion.... witnesses also included a student who survived the school
shooting in Parkland, Florida, and Rochelle Garza, the legal guardian for a pregnant immigrant teenager whose quest
for an abortion Kavanaugh would have delayed last year.” Jessica Gresko, “Senate concludes Kavanaugh hearing;
confirmation likely,” Associated Press, September 7, 2018, online at
Congressional Research Service
16

Supreme Court Appointment Process: Consideration by the Senate Judiciary Committee

in recent decades has been the chair of the ABA’s Standing Committee on the Federal Judiciary,
who explains the committee’s rating of a nominee. Other witnesses ordinarily include
professional colleagues of a nominee64 or representatives of advocacy groups which support or
oppose a nominee.65
Closed-Door Committee Session
In a practice instituted in 1992, the Judiciary Committee also conducts a closed-door session with
each Court nominee. This session is held to address any questions about the nominee’s
background that confidential investigations might have brought to the committee’s attention. In
announcing this procedure in 1992, the then-chair of the committee, Senator Joseph R. Biden Jr.
(D-DE), explained that such a hearing would be conducted “in al cases, even when there are no
major investigative issues to be resolved so that the holding of such a hearing cannot be taken to
demonstrate that the committee has received adverse confidential information about the
nomination.”66
The first such closed-door session was held for Supreme Court nominee Ruth Bader Ginsburg in
1993. Most recently, such sessions were held in 2005, 2006, 2009, 2010, 2017, and 2018 for
nominees John G. Roberts Jr., Samuel A. Alito Jr., Sonia Sotomayor, Elena Kagan, Neil Gorsuch,
and Brett Kavanaugh, respectively. At the Roberts, Alito, and Kagan confirmation hearings, a
brief executive session was held after the Judiciary Committee had concluded al of its rounds of
questions for the nominees but before it received outside witness testimony.67 At the Sotomayor

https://apnews.com/0677a5d5bd4e4457b58f25fec805dc67.
64 If a nominee, for instance, is a sitting U.S. circuit court judge, one or more of the nominee’s colleagues on the bench
might testify on his or her behalf during the hearings. For example, at the time of his nomination, Samuel Alito served
as a judge on the T hird Circuit Court of Appeals (comprised of Delaware, New Jersey, and Pennsylvania). T wo of
Judge Alito’s colleagues serving as active judges on the T hird Circuit, Maryann e T rump Barry and Anthony J. Scirica,
testified as witnesses on his behalf.
65 Advocacy or interest groups, for example, with representatives testifying at recent Supreme Court hearings include
the National Federation of Independent Business (supporting Neil Gorsuch’s nomination), the Sierra Club (opposing
Gorsuch), the National Association of Women Judges (supporting Elena Kagan’s nomination), Family Research
Council (opposing Kagan), National Fraternal Order of Police (supporting Sonia Sotomayor’s nomination), Americans
United for Life (opposing Sotomayor), and the National Abortion and Reproductive Rights Action League Pro -Choice
America (opposing Samuel Alito’s nomination).
66 Sen. Joseph R. Biden Jr., “Reform of the Confirmation Process,” remarks in the Senate, Congressional Record,
vol. 138, June 25, 1992, p. 16320.
67 On February 15, 2005 (following a morning of public testimony by nominee John G. Roberts Jr.), the chair of the
Judiciary Committee, Sen. Arlen Specter (R-PA), announced that the committee would immediately be going into
executive session, “to ask the nominee on the record under oath about all investigative charges against the person if
there were any.” Such hearings, Chairman Specter said, “are routinely conducted for every Supreme Court no minee,
even where there are no investigative issues to be resolved. In so doing, those outside the Committee cannot infer that
the committee has received adverse confidential information about a nominee.” T hirty-one minutes after proceeding to
closed session, the committee reconvened in open session. Chairman Specter noted that the committee had reviewed
“the background investigations on Judge Roberts, which were routine,” and that he and the committee’s ran king
Member, Sen. Patrick J. Leahy (D-VT ), had been “ delegated to report that there are no disqualifying factors.” (T he
committee then proceeded to hear outside witnesses in open session.) Senate Judiciary Committee, Confirm ation
Hearing on John G. Roberts, p. 450. See also Senate Judiciary Committee, Confirm ation Hearing on Sam uel A. Alito,
p. 640, where, after a brief executive session, Chairman Specter, in public session, announced that the committee had
“reviewed confidential data on the background of Judge Alito, and it was all found to be in order.” Shortly before the
conclusion of the Judiciary Committee’s questioning of Court nominee Elena Kagan on June 30, 2010, the chair of the
committee, Senator Patrick J. Leahy (D-VT ), informed committee members, “ We’ll finish the questions … and then …
we will … go to the traditional closed session. And the press won’t be able to be there.” 67 “ Senate Judiciary
Committee Holds Hearing on the Nomination of Solicitor General Elena Kagan to the U.S. Supreme Court , Day 3,” CQ
Congressional Research Service
17

link to page 23 link to page 23 Supreme Court Appointment Process: Consideration by the Senate Judiciary Committee

confirmation hearings, an executive session was held between the Judiciary Committee’s first and
second rounds of questions for the nominee.68
Reporting the Nomination
Reporting Favorably, Negatively, or Without Recommendation
Usual y within a week of the end of hearings, the Judiciary Committee meets in open session to
determine what recommendation to report to the ful Senate. The committee may (1) report the
nomination favorably, (2) report it negatively, or (3) make no recommendation at al on the
nomination. A report with a negative recommendation or no recommendation permits a
nomination to go forward, while alerting the Senate that a substantial number of committee
members have reservations about the nomination.
Figure 2 shows, for the 16 nominations reported by the Judiciary Committee since 1971, whether
the nomination was reported favorably or other than favorably.69
For nominations reported favorably, the level of support among committee members is indicated
as follows: (1) unanimous support (i.e., no opposition by committee members); (2) almost
unanimous support (opposition by one committee member); (3) some opposition (opposition by
two or more committee members, but with the nomination also receiving the support of at least
two members not belonging to the President’s party); (4) almost party-line opposition (opposition
by al but one committee member not belonging to the President’s party); and (5) party-line
opposition (opposition by al committee members not belonging to the President’s party). The
number of colored circles at the top of each column indicates the number of nominees in each
particular category.
Of the 14 nominations reported favorably, 6 were reported with unanimous support (while
another 1 was reported with nearly unanimous support). The most recent nomination to be
reported with unanimous support by the committee was that of Stephen Breyer in 1994.
None of the six most recent nominations to the Court were reported unanimously or almost
unanimously. The Roberts nomination was reported with some opposition (three committee
members not belonging to the President’s party supported the nomination),70 while the Sotomayor
and Kagan nominations were reported with almost party-line opposition (one committee member
not belonging to the President’s party supported the nominations).71 The nominations of Samuel
Alito, Neil Gorsuch, and Brett Kavanaugh were reported with complete party-line opposition

Congressional Transcripts, June 30, 2010, at http://www.CQ.com (no page numbering supplied).
68 On July 15, 2009, after all the Judiciary Committee’s members had participated in a first round of questions for
Judge Sotomayor, the chair of the committee, Senator Leahy requested, without objection, “ for the committee now
proceeding to a closed session, which is a routine practice we’ve followed for every [Supreme Court] nominee since
back when Senator Biden was chairman of the committee.” Upon conclusion of the brief closed-door session, the
committee resumed public hearings that afternoon, starting with its second round of questions for Judge Sotomayor.
“Senate Judiciary Committee Holds Hearing on the Nomination of Judge Sonia Sotomayor to be an Associate Justice
of the U.S. Supreme Court,” CQ Congressional Transcripts, July 15, 2009, at http://www.CQ.com.
69 T he nomination of William Rehnquist to be Chief Justice is not included in Figure 2 (as he was already serving as an
Associate Justice on the Court at the time of his nomination). His nomination to be Chief Justice was reported
favorably by the Committee with a 13-5 vote.
70 Senators Patrick Leahy (D-VT ), Herb Kohl (D-WI), and Russ Feingold (D-WI) voted to report the Roberts
nomination favorably to the full Senate.
71 Senator Lindsay Graham (R-SC) voted to report the Sotomayor and Kagan nominations favorably to the full Senate.
Congressional Research Service
18

link to page 23

Supreme Court Appointment Process: Consideration by the Senate Judiciary Committee

(only committee members belonging to the President’s party voted to report the nomination
favorably to the ful Senate).
Figure 2. U.S. Supreme Court Nominations Reported by the Senate Judiciary
Committee
(1975 to 2018)

Source: Congressional Research Service.
Notes: This figure shows, for nominees whose nominations were reported by the Senate Judiciary Committee
since 1971, whether the nomination was reported favorably or other than favorably. For nominations reported
favorably, the level of committee support is indicated (e.g., whether the nomination received unanimous support
or was opposed on a party-line vote).
* 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. Previously,
Mr. Rehnquist (nominated by President Nixon) had been reported favorably out of committee by a vote of 12 -4
on November 23, 1971, to be Associate Justice on the Court.
** Prior to the Judiciary Committee voting 9-5 to send the Bork nomination to the Floor with an unfavorable
recommendation, the Committee voted 5-9 on a motion to report the nomination favorably (motion failed).
*** Prior to the Judiciary Committee voting 13-1 to send the Thomas nomination to the Floor without
recommendation, the Committee voted 7-7 on a motion to report the nomination favorably (motion failed).
Two nominations included in Figure 2 were not reported favorably, those of Robert Bork
(reported unfavorably after the committee defeated a motion, 5-9, to report the nomination
favorably)72 and Clarence Thomas (reported without recommendation after the committee
defeated a motion, 7-7, to report the nomination favorably).73

72 T he vote to report the Bork nomination favorably was almost a party -line vote. Senator Specter (R-PA) was the sole
Republican on the committee to join with all of the committee’s Democrats to oppose reporting the nomination
favorably.
73 T he vote to report the T homas nomination favorably was almost a party-line vote. Senator Dennis DeConcini (D-AZ)
was the sole Democrat on the committee to join with all of the committee’s Republicans to vote in support of reporting
Congressional Research Service
19

Supreme Court Appointment Process: Consideration by the Senate Judiciary Committee

If a majority of its members oppose confirmation, the committee technical y may decide not to
report a nomination, which would prevent the full Senate from considering it. However, since its
creation in 1816, the Judiciary Committee’s typical practice has been to report even those
Supreme Court nominations that were opposed by a committee majority,74 thus al owing the full
Senate to make the final decision on whether the nominee should be confirmed.75
This committee tradition was reaffirmed in June 2001 by the committee’s then-chair, Senator
Patrick J. Leahy (D-VT), and its then-ranking Member, Senator Orrin G. Hatch (R-UT), in a June
29, 2001, letter to Senate colleagues. The committee’s “traditional practice,” their letter stated,
has been to report Supreme Court nominees to the Senate once the Committee has
completed its considerations. This has been true even in cases where Supreme Court
nominees were opposed by a majority of the Judiciary Committee.
We both recognize and have every intention of following the practices and precedents of
the committee and the Senate when considering Supreme Court nominees.76
During the 20th century, the Senate usual y, but not always, agreed with Judiciary Committee
recommendations that a Supreme Court nominee be confirmed. In other words, a favorable
recommendation by the committee has, in a few instances (each occurring during the period 1968
to 1970), not been followed by Senate confirmation of the nomination.77
Historical y, unfavorable committee reports, or reports without recommendation, have been
precursors to nominations encountering substantial opposition in the full Senate, although a few
of these nominations have eventual y been confirmed by narrow margins.78

the nomination favorably.
74 According to CRS data, since its creation in 1816, the Judiciary Committee has reported 108 Supreme Court
nominations to the full Senate (while not reporting 8 nominations). Of the 108, se ven were reported unfavorably
(indicating substantial committee opposition)—those of John Crittenden (1829), Ebenezer R. Hoard (1869), Stanley
Matthews (1881), Lucius Q.C. Lamar (1888), William B. Hornblower (1894), John J. Parker (1930), and Robert H.
Bork (1987). T wo nominations were reported without recommendation—those of Wheeler H. Peckham (1894) and
Clarence T homas (1991).
75 Of the seven nominations reported unfavorably, two were approved by the Senate (Stanley Matthews and Lucius
Q.C. Lamar). Of the two nominations reported without recommendation, one was approved by the Senate (Clarence
T homas).
76 Sen. Patrick J. Leahy and Sen. Orrin G. Hatch, “Dear Colleague” Letter, June 29, 2001, Congressional Record, daily
edition, vol. 147, June 29, 2001, p. S7282.
77 T he Senate disagreed with the Judiciary Committee’s favorable assessment of a Supreme Court nominee three times
in the 20th century, declining to confirm Supreme Court nominees Abe Fortas (to be Chief Justice) in 1968, Clement F.
Haynsworth Jr. (as an Associate Justice) in 1969, and G. Harrold Carswell (as an Associate Justice) in 1970, even
though their confirmations had been recommended by the committee. Abe Fortas was already serving on the Court as
an Associate Justice when he was nominated by President Lyndon Johnson to be Chief Justice.
At least once in the 19th century, the Senate, in 1873, questioned a favorable committee report on a nominee to the
Court, recommitting the nomination of George H. Williams to be Chief Justice; the nomination later was withdrawn by
the President, without having been reported out a second time by the committee. A year later, in 1874, the nomination
of Caleb Cushing to be Chief Justice failed to receive Senate confirmation after being reported favorably by the
Judiciary Committee. Soon after the committee’s action and in the face of growing Senate opposition, the nomination
was withdrawn by President Ulysses S. Grant without, however, having received formal Senate consideration. See
Jacobstein and Mersky, The Rejected, pp. 82-87 (Williams), pp. 87-89 (Cushing), pp. 125-137 (Fortas), pp. 141-147
(Haynsworth), and pp. 147-155 (Carswell).
78 As discussed previously, the following three Supreme Court nominations, though reported out of committee without
a favorable recommendation, nonetheless were confirmed by the Senate: Stanley Matthews (1881), by a 24-23 vote;
Lucius Q.C. Lamar (1888), by a 32-28 vote; and Clarence T homas (1991), by a 52 -48 vote. T he remaining six
nominations were rejected by the full Senate.
Congressional Research Service
20

Supreme Court Appointment Process: Consideration by the Senate Judiciary Committee

Printed Committee Reports
In past decades, reporting to the Senate frequently included a printed committee report; the six
most recently reported Supreme Court nominations, however, were done so without printed
reports.79 Prepared behind closed doors, after the committee has voted on the nominee, the printed
report presented in a single volume the views of committee members supporting a nominee’s
confirmation as wel as “al supplemental, minority, or additional views ... submitted by the time
of the filing of the report....”80 No Senate committee, however, is obliged to transmit a printed
report to the Senate. Instead, the chair of the Judiciary Committee may file a one-page document
reporting a nomination to the Senate and recommending whether the nomination should be
confirmed.
A printed report may be valuable in providing for Senators not on the Judiciary Committee a
review of al of the reasons that the committee’s members cite for voting in favor or against a
nominee.81 A written report, however, might not always be considered a necessary reference for
the Senate as a whole. For instance, in some cases, Senators not on the Judiciary Committee
might believe they have received adequate information about a nominee from other sources, such
as from news media reports or gavel-to-gavel video coverage of the nominee’s confirmation
hearings.82 Further, preparation of a written report would likely mean additional days for a
nomination to stay with the committee before it can be reported to the Senate.83 In some
situations, this might be viewed as creating unnecessary delay in the confirmation process,
particularly if there is a desire to fil a Court vacancy as quickly as possible.84

79 From the 1960s through 2010, the Judiciary Committee reported 25 Supreme Court nominations to the Senate, 16 of
which included transmittals of printed reports. During this time span, the nine Supreme Court nominations reported to
the Senate without printed report were those of Byron W. White and Arthur J. Goldberg in 196 2, Abe Fortas in 1965,
Warren E. Burger in 1969, John Paul Stevens in 1975, John G. Roberts Jr. (for Chief Justice) in 2005, Samuel A. Alito
Jr. in 2006, Sonia Sotomayor in 2009, and Elena Kagan in 2010.
80 Rule 26, paragraph 10(c), Standing Rules of the Senate.
81 T his argument, for instance, was raised in 1969, after the nomination of Warren E. Burger to be Chief Justice was
reported by the Judiciary Committee to the Senate floor without a printed report. During floor consideration of the
nomination, three Senators expressed concern about the absence of a printed committee report. The Senators
maintained that it was important for the Senate, when considering an appointment of this magnitude, to be able to
consult a printed report from the Judiciary Committee that provided a breakdown of any recorded votes by the
committee and an explanation of the committee’s recommendation regarding the nominee. “The Supreme Court of the
United States,” debate in the Senate, Congressional Record, vol. 115, June 9, 1969, pp. 15174-15175 and 15192-
15194. Shortly after this discussion, however, the Senate concluded debate on the Burger nomination and voted to
confirm the nominee, 74-3.
82 In one instance, involving the Supreme Court nomination of Ruth Bader Ginsburg in 1993, the Senate received the
Judiciary Committee’s printed report on the nomination on August 5, two days after voting to confirm the nominee. In
that instance, it might be argued, the greater value of the committee’s report, in being transmitted after the Senate’s
confirmation vote, was not as an advisory resource for the Senate but as an official record for posterity that reviewed
the nature of the committee’s investigation of the nominee and the reasons for committee members unanimously
favoring the nominee’s confirmation.
83 A written report ordinarily is produced within a week of the committee vote. On infrequent occasions, however, the
report may entail weeks of preparation if the nomination is controversial or if the report is regarded as possibly crucial
in influencing how the full Senate will vote on the nomination. In 1970, for instance, the committee submitted its
written report on nominee Clement F. Haynsworth Jr. more than a month after voting 10 -7 to recommend that Judge
Haynsworth be confirmed. (Subsequently the full Senate rejected the Haynsworth nomination by a 55 -45 vote.)
84 Concern that vacancies on the Court be filled as expeditiously as possible appeared to figure in the decisions to report
two recent Supreme Court nominees, John G. Roberts Jr. and Samuel A. Alito Jr., to the Senate without printed report.
Dispensing with a written report for Roberts was briefly discussed on the Senate floor on July 29, 2005, the day his first
nomination (for Associate Justice) was received by the Senate. (T his nomin ation would later, on September 6, 2005, be
Congressional Research Service
21

Supreme Court Appointment Process: Consideration by the Senate Judiciary Committee

withdrawn, with Roberts that same day re-nominated to be Chief Justice.) In a floor statement, the chair of the Judiciary
Committee, Sen. Arlen Specter (R-PA), described a joint agreement that he and the committee’s ranking Member, Sen.
Patrick J. Leahy (D-VT ), had reached with the Senate’s party leaders concerning the scheduling procedures for the
confirmation hearings on the Roberts nomination. T he particulars of the agreement, Senator Specter said, were shaped
by what he said was the Senate’s “duty to have the nominee in place” on the Court by the start of its next term on
October 3, 2005. In the list of particulars agreed to (including the start of hearings by a set date and the waiving by
members of the Judiciary Committee of their right under committee rules to hold over the nomination for one week
when first placed on the committee’s executive agenda), Judiciary Committee members from both parties, Senator
Specter said, “would waive their right to submit dissenting or additional or minority views to the committee report.”
“Hearings on Supreme Court Nominee John Roberts,” Congressional Record, daily edition, vol. 151, July 29, 2005, p.
S9420. Senator Leahy as well, in a floor statement immediately after Senator Specter, indicated that the joint agreement
allowed for dispensing with a written committee report on the Roberts nomination: “And we recognize,” Senator Leahy
stated, “that nothing in the Senate or Judiciary Committee rules precludes the Senate from considering the nomination
on the floor without a committee report.” Ibid.
T he scheduling of a Judiciary Committee vote on the Alito nomination, without a printed report by the committee to
follow, also appeared to be grounded on concerns of acting as quickly on the nomination as possible. In Chairman
Specter’s initial announcement, on November 3, 2005, of a schedule for the Judiciary Committee and Senate floor
action on the Alito nomination, he specified that floor action was to begin the day after the committ ee’s vote (hence not
allowing time for preparation of a printed report). Senator Specter observed that the Court was then in the midst of its
October 2005 term, with the possibility of various cases already heard by the Court having to be reargued, if the
departure of outgoing Justice Sandra Day O’Connor during the term were to result in 4 -4 decisions. T hus, Senator
Specter said, it was important to the Court for the Senate to act on the Alito nomination “as promptly as possible.”
“Senator Specter and Leahy Hold News Conference on Hearings for Supreme Court Justice Nominee Alito,” CQ.Com
Newsmaker T ranscripts, November 3, 2005 , at http://www.cq.com.
Congressional Research Service
22

Supreme Court Appointment Process: Consideration by the Senate Judiciary Committee

Author Information

Barry J. McMillion

Analyst in American National Government

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

Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan
shared staff to congressional committees and Members of Congress. It operates solely at the behest of and
under the direction of Congress. Information in a CRS Report should n ot be relied upon for purposes other
than public understanding of information that has been provided by CRS to Members of Congress in
connection with CRS’s institutional role. CRS Reports, as a work of the United States Government, are not
subject to copyright protection in the United States. Any CRS Report may be reproduced and distributed in
its entirety without permission from CRS. However, as a CRS Report may include copyrighted images or
material from a third party, you may need to obtain the permission of the copyright holder if you wish to
copy or otherwise use copyrighted material.

Congressional Research Service
R44236 · VERSION 10 · UPDATED
23