How a Supreme Court nominee becomes a justice

A potential justice nominated by the president must win confirmation in the Senate

President Biden announced he will nominate federal judge Ketanji Brown Jackson to fill retiring Justice Stephen G. Breyer’s seat on the Supreme Court. Breyer, 83, has served on the court for nearly three decades and plans to retire after the current term concludes.

Here’s how the confirmation process works for a Supreme Court nominee:

President

NOMINATION

The president chooses a candidate who is well-qualified as well as someone who generally serves his political interests.

Senate Judiciary

Committee

COMMITTEE BREAKDOWN

11

R

D

11

VETTING

The committee checks the nominee’s credentials and background, including finances and past legal decisions.

FIRST HEARING

The committee questions the nominee’s qualifications. The nominee is given a chance to respond.

COMMITTEE VOTE

If a majority of the committee opposes the nominee, tradition calls for the panel to send the nomination to the full Senate recommending that it be rejected.

Full Senate

50*

50

*Includes two independents who

caucus with the Democrats. Democrats have the majority with Vice President Harris as tiebreaker.

DEBATE ON SENATE FLOOR

Led by the chair of the Judiciary Committee, the Senate debates the nomination.

Filibuster

Republicans voted in 2017 to end the 60-vote threshold to force a vote on Supreme Court nominees.

FINAL VOTE

Simple 51-vote

majority required.

NOMINATION

FAILS

NOMINATION

CONFIRMED

President

NOMINATION

The president chooses a candidate who is well-qualified as well as someone who generally serves his political interests.

Senate Judiciary

Committee

COMMITTEE BREAKDOWN

11

R

11

D

VETTING

The committee checks the nominee’s credentials and background, including finances and past legal decisions.

FIRST HEARING

The committee questions the nominee’s qualifications. The nominee is given a chance to respond.

COMMITTEE VOTE

If a majority of the committee opposes the nominee, tradition calls for the panel to send the nomination to the full Senate recommending that it be rejected.

Full Senate

50*

50

*Includes two independents who

caucus with the Democrats. Democrats have the majority with Vice President Harris as tiebreaker.

DEBATE ON SENATE FLOOR

Led by the chair of the Judiciary Committee, the Senate debates the nomination.

Filibuster

Republicans voted in 2017 to end the 60-vote threshold to force a vote on Supreme Court nominees.

FINAL VOTE

Simple 51-vote

majority required.

NOMINATION

FAILS

NOMINATION

CONFIRMED

President

NOMINATION

The president chooses a candidate who is well-qualified as well as someone who generally serves his political interests.

Senate Judiciary Committee

COMMITTEE BREAKDOWN

VETTING

The committee checks the nominee’s credentials and background, including finances and past legal decisions.

R

11

D

11

FIRST HEARING

The committee questions the nominee’s qualifications. The nominee is given a chance to respond.

BACK TO THE START

A nominee may withdraw from consideration at any time, as Harriet Miers did in 2005.

COMMITTEE VOTE

If a majority of the committee opposes the nominee, tradition calls for the panel to send the nomination to the full Senate with the recommendation that it be rejected.

Full Senate

DEBATE ON SENATE FLOOR

Led by the chair of the Judiciary Committee, the Senate debates the nomination.

50*

50

Filibuster

*Includes two independents who

caucus with the Democrats. Democrats have the majority with Vice President Harris as tiebreaker.

Republicans voted in 2017 to end the 60-vote threshold to force a vote on Supreme Court nominees.

FINAL VOTE

Simple 51-vote

majority required.

NOMINATION

CONFIRMED

NOMINATION

FAILS

Republicans rammed through a change in Senate rules in 2017 to ensure the confirmation of President Donald Trump’s first nominee, Neil M. Gorsuch, with a simple majority vote after blocking President Barack Obama from filling the vacancy for much of 2016. That change will probably smooth the path for confirmation, although the Senate remains evenly divided, with Vice President Harris casting the tiebreaking vote.

In fall 2020, despite the dying wishes of Justice Ruth Bader Ginsburg, Republicans pushed through the nomination of Amy Coney Barrett in a matter of weeks. Trump nominated her on Sept. 26, and she was confirmed Oct. 26, eight days before the election. Between 1975 and 2016, it took about 70 days on average to confirm a justice.

Jackson’s confirmation hearings are scheduled to begin on March 21. Senate Judiciary Committee Chairman Richard J. Durbin (D-Ill.) set a goal of confirming Biden’s nominee before the Easter recess, which is scheduled to begin April 8. This would mean that the confirmation process would take 43 days or fewer.

Barrett was confirmed 8 days before the 2020 election

Time to confirm

sitting justices

Average days

to confirm

72

27

Barrett

88

Kavanaugh

65

Gorsuch

87

Kagan

66

Sotomayor

82

Alito

62

Roberts

73

Breyer

99

Thomas

Barrett was confirmed 8 days before the 2020 election

Time to confirm

sitting justices

Average days

to confirm

72

27

Barrett

88

Kavanaugh

65

Gorsuch

87

Kagan

66

Sotomayor

82

Alito

62

Roberts

73

Breyer

99

Thomas

Average days

to confirm

Barrett was confirmed 8 days before the 2020 election

Time to confirm

sitting justices

72

27

Amy Coney Barrett

88

Brett M. Kavanaugh

65

Neil M. Gorsuch

87

Elena Kagan

66

Sonia Sotomayor

82

Samuel A. Alito Jr.

62

John G. Roberts Jr.

73

Stephen G. Breyer

99

Clarence Thomas

“President Biden’s nominee will receive a prompt hearing in the Senate Judiciary Committee, and will be considered and confirmed by the full United States Senate with all deliberate speed,” Sen. Charles E. Schumer (D-N.Y.) said in a statement.

Although the ideological balance of the court is unlikely to shift significantly, Biden has a chance to make good on his campaign promise to nominate the first Black female justice. The Senate can begin the confirmation process while Breyer is still on the bench, according to senior Senate aides.

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