How Does A Supreme Court Justice Get Confirmed? Brett Kavanaugh's Future Is Uncertain
Supreme Court nominee Brett Kavanaugh was expected to sail through his confirmation hearings, but a recently-surfaced sexual assault allegation against him has put his nomination in jeopardy. Kavanaugh denies the allegation, but the turmoil surrounding his nomination has left many people wondering: Just how does a Supreme Court justice get confirmed, exactly?
At the most fundamental level, the process by which nominees to the Supreme Court are confirmed is quite simple. The president names somebody as their appointee, and the Senate votes on whether or not they should be confirmed. If the Senate approves the nominee, they're sworn in as the next Supreme Court justice; if it doesn't, they're not. All of this is laid out in the Constitution, which says in Article II that the president "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint...Judges of the supreme Court."
In practice, however, the confirmation process is a bit more complicated than that.
For instance, what exactly qualifies as "consent of the Senate?" That phrase isn't defined in the Constitution, and the Senate has interpreted it to mean different things at different points in time. Until 2017, for instance, Senate rules allowed the minority party to filibuster Supreme Court nominees, which effectively required nominees to get more than a simple majority of votes in order to be approved. However, even this is more complex than it sounds: The rules governing filibusters themselves have changed over time, and as a result, so has the minimum number of votes that Supreme Court nominees need in the Senate in order to be confirmed.
Nevertheless, ever since Senate Majority Leader Mitch McConnell eliminated the filibuster for Supreme Court nominees in 2017, nominees to the court have needed only a simple majority — in normal circumstances, 51 votes — in order to be confirmed to the court.
There's also the matter of the Senate Judiciary Committee, the panel of senators tasked with reviewing judicial appointments. It's custom for the committee to scrutinize Supreme Court nominees internally and hold a vote on whether to recommend that nominee for full Senate approval.
However, this is merely a custom, not a Constitutional requirement; in fact, it wasn't until 1952 that a Supreme Court nominee even appeared before the Judiciary Committee. The full Senate is allowed to confirm a Supreme Court nominee even if the Judiciary Committee recommends that it reject them (or, alternatively, if the committee holds no vote whatsoever on them); likewise, the Senate can reject nominees that are approved by the committee. These sorts of "splits" aren't incredibly common — but they're not exactly rare, either.
Lastly, it's worth stressing that the Senate Majority Leader — and only the Senate Majority Leader — has the authority to put a nominee up for a vote. What this effectively means is that whichever party controls the Senate gets to decide whether, and when, a president's nominee to the Supreme Court comes up for a vote.
McConnell used this power in 2016 and early 2017 to prevent Barack Obama's final nominee to the court, Merrick Garland, from receiving a vote in the Senate. Obama had nominated Garland in March of 2016, but McConnell refused to schedule a vote on his nomination. Garland's nomination lapsed the following January, after Donald Trump had won the presidential election. Trump nominated conservative judge Neil Gorsuch to the court after being sworn in, and McConnell promptly scheduled hearings and a vote for Gorsuch.
Despite all of these nuances, however, the bottom line is straightforward and unambiguous: The path to the Supreme Court runs straight through the Senate.