14.5: Judicial Appointments

At the state level, procedures for filling courts’ benches vary as a consequence of federalism. Some states assign their governors or legislatures the responsibility of nominating judges, whereas others allow citizens to choose their own judges through either partisan or nonpartisan elections. For federal courts, all judges, including those on district and appellate courts as well as the Supreme Court, are nominated by the president and subsequently confirmed by the Senate. This procedure is outlined in Article II of the Constitution, which specifies that the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint...Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for....”

The process of nominating a district court judge, appellate court judge, or Supreme Court justice begins when a vacancy opens a court. This can occur when a new court or seat on a court is created by an act of Congress, but most commonly it happens when a sitting judge or justice dies, retires, is impeached and removed from office, or is promoted to fill a vacancy on a higher court. Once a seat is opened, the president nominates someone (usually a judge or other person with extensive legal experience) to fill it. The nominee is first submitted to the Senate Judiciary Committee for review, during which he or she may be called to testify before the committee. If the committee approves of the nomination, the whole Senate then debates and votes. If a majority of Senators vote in favor of the nominee, he or she is sworn in and fills the vacancy.

Since the 1980s, judicial nominations, especially Supreme Court nominations, have increasingly become fiercely partisan battles. Supreme Court nominees such as Robert Bork, Clarence Thomas, and Brett Kavanaugh — all nominated by Republican presidents — were subjected to hostile and withering Senate Judiciary Committee hearings, each time with most of the furor coming from Democratic senators. (Thomas and Kavanaugh were eventually confirmed to the Supreme Court; Bork was not.) The polarization of the parties in Congress has contributed to this conflict, as shown in Figure 14.2 below. Whereas in the past Supreme Court nominees could usually count on the votes of senators from both parties, recent confirmations have been entirely or almost entirely supported by members of the president’s party.

Figure 14.2: Supreme Court confirmation votes, 1987–2022 (Source: U.S. Senate)

Polarization has even led Congress to change the rules of the judicial confirmation process. During Barack Obama’s presidency, Senate Republicans used the filibuster to block a series of lower-court nominees for partisan reasons, driving Senate Democrats (who controlled the chamber at the time) to lower the threshold for cloture from 60 votes to 51 for district and appellate court nominations. Obama’s third Supreme Court nominee, Merrick Garland, was blocked by a Republican-controlled Senate which refused to even hold hearings on his nomination, preferring to gamble that a Republican victory in the 2016 presidential election would result in a more conservative judge being nominated. When this gamble paid off, embittered Democrats closed ranks to filibuster Donald Trump’s first Supreme Court nominee, Neil Gorsuch, leading Senate Republicans to lower the cloture threshold for Supreme Court nominations to 51 votes as well.

The contentiousness of Supreme Court nominations stems from the power wielded by the court. Federal judges serve life terms unless resignation, impeachment, or promotion foreshortens their service. A president can therefore impact American politics long after his time in office comes to an end by installing one or more Supreme Court justices who will interpret the laws in a way favorable to his policy desires for many years. The stakes are high: Supreme Court decisions in recent decades have decided the result of a close presidential election (Bush v. Gore), enabled an explosion of super PACs and campaign spending (Citizens United v. FEC), prohibited states from banning same-sex marriage (Obergefell v. Hodges), and allowed states to ban abortion (Dobbs v. Jackson Women’s Health Organization).