Russell Hebets Oct. 10, 2018

We realize there is a chance you were buried in a mudslide several weeks ago and have only now tunneled out into the light of day. First of all, if so, welcome back! Second, you have some catching-up to do with Brett Kavanaugh’s Supreme Court confirmation, which we think makes apposite a review of the Supreme Court appointment process in general.

Appointment to the Supreme Court is prescribed in almost no detail in Article II, Section 2 of the United States Constitution, which says that the President shall install new Court justices “with the Advice and Consent of the Senate.” Out of that sentence, by trial and error, a procedure has grown to split the power of appointment more or less as the Constitution’s authors imagined, but this procedure has no binding in law and may therefore change abruptly.

What Does the Appointment Process Usually Look Like?

In most cases the President will discuss Supreme Court candidates with senators before making a choice; once a nomination is announced the Senate Judiciary Committee takes over. The Committee gathers information about the nominee from the FBI, Department of Justice, and White House, conducts interviews with the nominee as well as proponents and opponents of his or her candidacy, and votes on the matter, remanding it to the full Senate either with or without a recommendation. After further debate the Senate votes also—confirmation of the nominee requires a simple majority of those participating.

How Do Vacancies Arise and Who Can Be Nominated?

Since there is no term limit for Supreme Court judges (a feature of their office intended to shield them from debasing influence by the executive and legislative branches), vacancies on the Court bench are rare. Typically they arise by death or retirement, although several judges over the last century have also resigned. In recent decades judges have retired more often than they did before: from 1900 to 1950, 14 of 34 vacancies resulted from deaths; from 1954 onward only 2 of 24 did, 20 others coming about by retirement.

Like much of the Supreme Court appointment process, eligibility for nomination derives from tradition rather than law. All nominees so far have held law degrees, but nothing requires that, and the “expectation of excellence” that scholars mention as a guiding force in the choice of nominees would obviously be difficult to codify. Since 1945, 23 of 37 candidates worked as federal appellate judges when their names were brought forward, 8 as officials in the executive branch, and 2 as private attorneys.

Why It Matters

The decisions of the Supreme Court flow downward, affecting all other judicature in the United States. No less than elections or the passage of new laws, and maybe even more, the appointment of new Court justices is an important part of American government. You could argue that the life of the country turns on such events. And yet, how often do they feel important? How often do they draw our attention away from our everyday affairs? Despite the controversy about Brett Kavanaugh’s confirmation, it is at the very least a chance for us to remember, and take part in, the institutions at work around us.