President’s Selection of a Supreme Court Nominee: The Nomination of Judge Ketanji Brown Jackson in Historical Context

President’s Selection of a Supreme Court Nominee: The Nomination of Judge Ketanji Brown Jackson in Historical Context

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INSIGHTi

President’s Selection of a Supreme Court
Nominee: The Nomination of Judge Ketanji
Brown Jackson in Historical Context
March 8, 2022
This Insight provides historical information related to the selection of past Supreme Court nominees, as
well as information about the recent selection of Judge Ketanji Brown Jackson to fill the anticipated
vacancy created by Justice Stephen Breyer's announcement that he would retire at the end of the Court’s
current term (assuming his successor is nominated and confirmed by then). For additional information
related to a President’s selection of a Supreme Court nominee, such as the criteria used to select a
Supreme Court nominee, see CRS Report R44235. The information below is provided for comparative
purposes and does not presume the outcome of Judge Jackson’s nomination.
Days Elapsed Until a Nominee Was Announced
Figure 1 shows, for vacancies on the Supreme Court from 1975 to 2020, the number of days that elapsed
between the date on which it was publicly known that a Justice was leaving the Court (due to retirement
or death) and the date when a President publicly announced a nominee to replace the departing Justice.
Because, during this period, a President’s initial publicly announced choice to fill a vacancy was typically
confirmed by the Senate, the figure shows only past vacancies on the Court for which multiple
nominations were not required to fill the vacancy. For information about the three vacancies since 1975
that had multiple nominations prior to being filled (i.e., the vacancies created by the departures of Justices
Powell, O’Connor, and Scalia), see CRS Report R44235.
For the 13 vacancies included in Figure 1 (excluding the anticipated Breyer vacancy), approximately 19
days, on average, elapsed between the date on which it was publicly known that a Justice was leaving the
Court and the date on which the President publicly identified a nominee for the vacancy. For the same 13
vacancies, the median length of time between the two dates was 12 days.
Most recently, President Biden announced his intent to nominate Judge Jackson on February 25, 2022—
29 days after Justice Breyer’s announcement on January 27, 2022.
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Figure 1. Number of Days from Vacancy Announcement of Departing Justice to President’s
Public Announcement Identifying Nominee for Vacancy
(Jackson nomination compared to vacancies since 1975 that required only one nomination prior to being filled)

Source: Congressional Research Service.
Professional Position at Time of Nomination
Supreme Court nominees have typically distinguished themselves in the law as lower court judges, legal
scholars, or private practitioners. Some have also served as Members of Congress, federal administrators,
or governors. Figure 2 shows, from 1945 to the present, the type of professional position or office held by
an individual at the time of his or her nomination to the Supreme Court. So, for example, at the time of
his nomination by President Truman in 1945, Harold H. Burton was serving as a U.S. Senator from Ohio.
Since 1945, the most common type of professional experience at the time of nomination to the Supreme
Court has been service as a federal appellate court judge. Specifically, 26, or 65%, of 40 nominees were
serving as a U.S. circuit court judge when nominated to the Court—including the most recent nominee,
Judge Jackson.
The percentage of nominees serving as U.S. appellate court judges at the time of nomination is even
greater during relatively more recent presidencies. From 1981 to the present, for example, 16 (or 84%) of
19 nominees were serving as U.S. circuit court judges at the time of nomination

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Figure 2. Type of Professional Experience of U.S. Supreme Court Nominees at Time of
Nomination
(1945-Present)

Source: Congressional Research Service.

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Since 1945, the next most common type of professional experience at the time of nomination is service as
an official in the executive branch—accounting for 8, or 20%, of 40 nominees. Overall, at least since
1945, it has been relatively rare for a nominee, at the time of his or her nomination, to be serving as a
state judge, working as an attorney in private practice, or holding elective office—6, or 15%, of 40
nominees fall into one of these three categories.
Prior Judicial Experience
Figure 3 shows, for the nine current Justices on the Supreme Court, the number of years of prior federal
judicial experience, if applicable, each had as a U.S. district and/or circuit court judge (as well as the total
number of years of such experience considering both positions). The figure also shows this information
for Judge Jackson.
Figure 3. Number of Years of Prior Federal Judicial Experience Prior to Appointment to the
Supreme Court

Source: Congressional Research Service.

For the nine current Justices, the average length of prior federal judicial experience at the time of
appointment to the Court was approximately 9 years (with a median of 11 years). Additionally, of the
nine, one, Justice Kagan did not serve as a lower federal court judge prior to being appointed to the Court.
Of the eight Justices with prior federal judicial experience, Justice Thomas served the fewest number of
years, whereas Justice Sotomayor served the greatest number. At present, Justice Sotomayor is also the
only Justice with prior experience as both a circuit and district court judge.
Judge Jackson, as of March 1, 2022, has nearly nine years of prior federal judicial experience—which is
more total years of prior federal judicial experience than four current members of the Court and fewer
total years of such experience than five current members. Most of her prior federal judicial experience has
been as a district court judge (which was also the case with several past Justices no longer on the Court,
e.g., Justice Whittaker). If confirmed, she would also be one of two members of the current Court with
experience as both a circuit and district court judge.

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Author Information

Barry J. McMillion

Analyst in American National Government

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 not 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.

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