On Saturday, President Donald J. Trump said he would seek to nominate a replacement for the late Justice Ruth Bader Ginsburg, on the Supreme Court. The process in normal times follows a fairly defined pattern. But the combination of an upcoming general election and the COVID-19 crisis could see some differences in the nomination process.
Justice Ginsburg passed away at the age of 87 on Friday in Washington, D.C. The Supreme Court will function with eight Justices when it convenes its long conference to consider new cases about a week prior to the first Monday in October, the official start of its next term. For now, the Court will hear arguments using audio teleconferencing.
Under Article II, Section 2, of the Constitution, the Supreme Court nomination process starts with the selection of a Supreme Court nominee by President Trump. The President then will officially notify the Senate of the nomination—usually via a written statement. This is related to the Constitution’s “Appointments Clause” in Article II, Section 2, Clause 2, which reads that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … Judges of the supreme Court.”
Article I Section 5 of the Constitution allows both houses of Congress to create their own rules for proceedings, including the judicial confirmation process. And under the Senate’s current standing rules, the nomination is sent to the Senate Judiciary Committee, unless the nominee is a current or former Senate member.
In recent years, the average Supreme Court nomination and confirmation process has taken between two and three months. The nomination and confirmation process for Justice Brett Kavanaugh lasted a little under three months, while the same process for Justice Neil Gorsuch took a little over two months.
The current Senate would have until January 2, 2021 to consider the nomination and vote on it. When a new Senate is seated in the next Congress, the matter would need to be reconsidered if the nominee is not confirmed by the Senate. For example, when Merrick Garland’s nomination was not voted on by the Senate in 2016, his nomination was returned to the new President on January 3, 2017.
While it is not unusual for a Supreme Court nominee to be confirmed in the months of November and December, it would be unusual in a general election year with the presidential race underway. The most-recent justices confirmed by the Senate in a December Senate during a presidential election year were William Burnham Woods (in 1880), Ward Hunt (in 1872), and Salmon Chase (in 1864 as Chief Justice).
Once the president’s nomination is sent to the Senate, the Senate Judiciary chair, Lindsey Graham, would authorize a pre-hearing investigative stage about the nominee, followed by public hearings at the Judiciary Committee and a decision on a recommendation to the full Senate.
The nominee first undergoes the extensive investigation process and meets with senators who are part of the approval process. Next, the nominee usually appears at a public hearing at the Senate, facing a variety of questions from the Judiciary Committee. By a majority vote, the Judiciary Committee can report the nomination favorably, report it unfavorably, or report it without making any recommendation at all. It is also possible for the committee to take no action of any type to send a report to the full Senate.
Once a recommendation vote is taken by the Judiciary Committee, and the nomination is sent to the entire Senate for a floor vote, a simple majority is needed to confirm the nominee. The filibuster for Supreme Court nominees was eliminated in 2017, which would have required 60 votes for the nomination to receive a floor vote under cloture rules.
When the nomination is reported to the full Senate for consideration, it is placed on its Executive Calendar. The Senate Majority Leader, Mitch McConnell, decides how to approach the voting process. The Republicans have 53 seats in the current Senate, and Vice President Mike Pence would vote to break a tie vote, so 50 votes are needed to confirm the nominee if the full Senate is present and voting.
The age of COVID-19 could complicate matters since much of the Senate’s business in considering Supreme Court nominations in the past has been conducted in person, including voting on the confirmation of a Supreme Court nominee. For now, the Senate does not allow its members to vote remotely.
A different scenario would involve a recess appointment to the Supreme Court by President Trump. The Constitution allows the President to appoint a member to the Supreme Court if a vacancy exists and Congress is not in session. Article II, Section 2, Clause 3 of the Constitution permits the President “to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”
The last Supreme Court recess appointments were during the Eisenhower era: Earl Warren, William Brennan, and Potter Stewart. In fact, President Eisenhower appointed Justice Brennan to the Court on October 15, 1956, just weeks before a presidential election. The Senate then confirmed Brennan on March 19, 1957.
However, the definition and practice of when the Senate is in recess has changed since the 1950s. In a recent Congressional Research Service report, the CRS cites the Supreme Court’s 2014 decision in National Labor Relations Board v. Noel Canning as limiting the President’s window to make a recess appointment to occasions when the Senate has adjourned for at least 10 days.
"In light of historical practice, a recess of more than 3 days but less than 10 days is presumptively too short to fall within the [Adjournments] Clause,” said Justice Stephen Breyer for a unanimous court. In a concurring opinion, Justice Antonin Scalia believed that such vacancies could only be filled by the President if they occurred during a recess, and not before.
Also, in April 2020, President Trump argued that he had the power if needed under Article II, Section 3 to force Congress to adjourn. Under that provision, “in Case of Disagreement between [the House and Senate], with Respect to the Time of Adjournment, [the President] may adjourn them to such Time as he shall think proper.” Such a scenario would have to include votes on the House and Senate floors that differ on an adjournment time.
If the president were able to make a recess appointment to the Supreme Court, that justice is only eligible to serve for the next session of Congress unless the justice is confirmed by the Senate. The CRS noted that of the 12 recess appointments made to the Court since 1789, all 12 justices received nomination votes in the Senate and 11 were confirmed. The exception was Chief Justice John Rutledge in 1795, whom the Senate rejected because of his opposition to the Jay Treaty.
Scott Bomboy is editor in chief of the National Constitution Center.
