Supreme Court Justices – How Are They Appointed?

By now you are all very familiar with Brett Kavanaugh, President Trump’s pick for Supreme Court Justice. If appointed, Judge Kavanaugh will fill the seat of Anthony Kennedy, and likely function as a critical swing vote on the Supreme Court.

So how does the process of being selected to serve as a Supreme Court Justice work?

There are 4 steps involved in the process of appointing a Supreme Court Justice:

  1. The President Selects a Pick– The Constitution of the United States gives the president the power of nomination. The President may select anyone he chooses. The selection need not be a current judge, but could simply be a politician, or anyone else who the president deems appropriate for the role.
  2. Consideration by Senate Judiciary Committee-The nominee is then considered by the Senate Judiciary Committee (a subset of the full Senate, which currently consists of 21 members). To begin this process, a prehearing investigation is conducted into the nominee’s background.  Following that step, a public hearing is held, where the candidate is asked questions about his or her ideology, judicial philosophy and certain views. The Senate Judiciary Committee then prepares a report, which is provided to the full Senate. The SJC may provide a favorable recommendation, a negative recommendation, or no recommendation.
  3. Review by the Full Senate-If the nominee survives this process and any filibuster attempts, a vote is conducted by the full Senate. In order for the nominee to be confirmed, a simple majority of all senators present and voting is required.
  4. The President Finalizes the Appointment-If the nominee is confirmed by the Senate vote, the President may then sign a commission appointing the candidate to the Supreme Court.

If the vote of the full Senate results in a tie, Vice President Mike Pence would cast a tie-breaking vote, thereby securing the appointment of Mr. Kavanaugh. If that occurs, such a vote by a vice president would be the first in U.S. history.

As an aside, the President further has the power to select a “recess appointment”, whereby the President could temporarily fill a seat on the Supreme Court, without any input from the Senate.

As is often the case, the discussions of whether Judge Kavanaugh should be appointed have been fiery, with allegations of sexual misconduct in Kavanaugh’s youth. In addition, some claimed that Kavanaugh tried to obscure his positions on presidential immunity, racial profiling and other issues, while others believe that Kavanaugh has been evasive on whether he would support a reversal of Roe V. Wade, the 1973 ruling protecting abortion rights.

What are your thoughts on Brett Kavanaugh and the whole appointment process?

Scott Bonebrake is a general practitioner in Media, PA, and has been a licensed attorney for 23 years. Please feel free to contact Scott with any questions or concerns at 610-892-7700, or at sbonebrake@noelandbonebrake.com.