The news that Supreme Court Justice Stephen G. Breyer intends to retire gives President Biden his first opportunity to make a Supreme Court appointment. Of course, Biden’s nominee, if confirmed, will not shift the ideological balance of the current court. But the new justice could change the nature of the court by making it more representative of the American public.
This will be especially true if Biden makes good on his pledge to nominate a Black woman, which would be a historic first. Doing so would follow in the footsteps of Ronald Reagan, who fulfilled a campaign promise to place the first woman on the court.
Here’s what to expect in the coming months.
The president nominates
The first step in filling a Supreme Court vacancy involves a presidential nomination. Before that happens, the president and White House officials ordinarily consult with high-ranking members of the Senate, trusted advisers and representatives from interest groups. In addition, the president may consult with the retiring justice for insights on who they might like as their successor. For instance, retiring Justice Anthony M. Kennedy suggested to President Trump that Brett M. Kavanaugh replace him.
As the president assembles a list of potential nominees, two types of background checks occur. The FBI conducts a private investigation that includes close scrutiny of a candidate’s financial affairs and interviews with the potential nominee and their associates. A separate investigation is conducted by Department of Justice officials, White House aides and, on occasion, private counsel. This typically involves poring over the candidate’s public record, including speeches and judicial opinions, as well as interviews with the would-be nominee.
These background checks are intended to ensure that the nominee has no problematic financial liabilities or skeletons in their closet, and to ensure that the president is appointing a like-minded nominee. These background checks do not always catch everything. For example, Reagan nominee Douglas Ginsburg withdrew his nomination after journalists revealed that he smoked marijuana as a law professor — something the background investigations missed. And of course, both Clarence Thomas and Brett M. Kavanaugh faced accusations of sexual harassment or sexual assault.
The Senate advises and consents
Once the president announces an appointment, the nomination is sent to the Senate. With the exception of President Barack Obama’s 2016 nomination of Merrick Garland, every nomination not withdrawn has then been forwarded to the Senate Judiciary Committee.
Before the committee holds hearings, three major things happen. First, the committee conducts its own investigation of the nominee. Committee staff conduct independent research into the nominee’s background, and the nominee is asked to fill out an extensive questionnaire that includes requests for financial disclosures, publications, potential conflicts of interest and a description of services to the disadvantaged.
Second, the nominee pays a series of courtesy calls to members of the Senate. During these visits, senators get to know the nominee, ask questions and mention the issues they care about. Although typically serious, these meetings can sometimes have a lighter tone. For example, former University of Chicago law professor Elena Kagan talked about her favorite Chicago restaurants in a friendly visit with then-Senator Richard J. Durbin (D-Ill.).
Third, the nominee prepares for Judiciary Committee hearings. Known as “murder boards,” these mock hearings often feature friendly senators, White House staff and members of the legal community playing the roles of Judiciary Committee members. The murder boards are intense — often carrying on for several hours a day over the course of weeks — and let the nominee rehearse while allies ask hostile questions.
Supreme Court confirmation hearings
The Senate Judiciary Committee’s confirmation hearings are the most visible aspect of the confirmation process. Millions of Americans tune in to the gavel-to-gavel television coverage. During several days of testimony, nominees face dogged questioning by senators on an array of topics, including their judicial philosophies, pressing legal and political issues of the day and their views of the court’s precedents.
Although these hearings have been heavily criticized as nothing more than theater, with nominees routinely dodging senators’ questions, this is not always the case. Research shows that past nominees have provided their positions on many significant issues, including the right to privacy, gender discrimination, the Second Amendment and, in the case of Ruth Bader Ginsburg, abortion rights. More recent nominees, however, have revealed less about their opinions, even on settled matters of constitutional law. For instance, Amy Coney Barrett refused to answer questions about the right to privacy, gender discrimination, and criminal bans on same-sex intimacy — questions most nominees before her felt at liberty to opine on.
After the hearings, the committee votes on whether to send the nomination on to the full Senate for debate and a vote. It almost always does. During the debate, senators take positions for and against the nominee, speak to their constituents and donors, and generate sound bites for the media. Since the senators’ minds are generally made up by this time, very little debating actually occurs.
When debate ends, a vote is traditionally taken. Since Republicans ended the filibuster for Supreme Court nominees in 2017, a simple majority vote is all that is necessary to confirm a nominee to a lifetime appointment on the Supreme Court.
Each newly appointed justice changes the court in a variety of ways. This includes its ideological orientation, the extent to which it reflects the public it represents, and the everyday interactions among the justices, including where they sit on the bench.
The Biden nominee
If Republican senators and special interest groups follow past playbooks, they are likely to use the weeks after the appointment to attempt to make Biden’s nominee look unqualified for the court, either because of a lack of experience, a disfavored approach to judging, or a lack of the appropriate judicial temperament. But research finds that most nominees facing a Senate controlled by the same party as the president are confirmed. Even though the Democrats enjoy only a razor-thin majority in the Senate, expect Biden’s nominee to be confirmed to the Supreme Court.
Paul M. Collins, Jr. is professor of legal studies and political science at University of Massachusetts Amherst.
Lori A. Ringhand is J. Alton Hosch Professor of Law and Josiah Meigs Distinguished Teaching Professor at the University of Georgia School of Law.
Together they are the authors of Supreme Court Confirmation Hearings and Constitutional Change (Cambridge University Press, 2013).