Nomination and Senate Confirmation

In one line

The President nominates a judge and the Senate confirms by a simple majority, and because the appointment is for life the confirmation is a political contest.

In the wording a student can write in an exam: under Article II section 2 the President has power, by and with the advice and consent of the Senate, to appoint judges of the Supreme Court, and by Article III section 1 they hold office during good behaviour, so that the appointing decision is taken once and its effects last for decades.

The provisions

Article II section 2 clause 2. The President shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States whose appointments are not herein otherwise provided for and which shall be established by law.

Two thirds is required for treaties and not for appointments, so a simple majority of the Senate confirms a judge.

Article III section 1. Judges of the supreme and inferior courts hold their offices during good behaviour, and their compensation shall not be diminished during their continuance in office. There is no retiring age.

Article I section 5. Each House may determine the rules of its proceedings, which is the constitutional basis of the filibuster and of its abolition.

The process

Nomination. The President selects, usually after consultation with advisers and, for lower courts, with the senators of the State concerned under the convention of senatorial courtesy.

Committee. The Senate Judiciary Committee holds hearings, which since 1925 have involved the nominee appearing in person, and reports.

Floor. The Senate debates and votes. A simple majority confirms.

The filibuster. Until 2013 a nomination could be blocked unless sixty senators voted for cloture. In 2013 the Senate abolished the filibuster for lower court and executive nominations, and in 2017 for Supreme Court nominations, in each case by a simple majority using its power under Article I section 5. The consequence is that a President whose party holds the Senate can confirm without any support from the other party.

Why the process is political

Three features combine.

Life tenure. A Justice appointed at fifty may serve thirty five years. The decision is therefore about the next generation and not about the next term.

Judicial review. Because the Court decides the most contested questions in American public life, and because Article V makes amendment nearly impossible, the composition of the Court is the constitutional politics of the country.