14.6: Judicial Appointments

At the state level, procedures for filling courts’ benches vary. Some states assign their governors or legislatures the responsibility of nominating judges. Most allow citizens to choose their own judges through 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 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 appointment process begins when a vacancy opens on a court. This can occur when Congress creates a new court or a new seat on an existing court, but usually it happens when a sitting judge or justice dies, retires, is impeached and removed from office, or is promoted to a higher court. Once a seat opens, the president nominates someone (usually a judge or other person with extensive legal experience) to fill it. The nominee is first reviewed by the Senate Judiciary Committee, which may call him or her to testify. If the committee approves 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 become fiercely partisan battles. 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 opposition coming from Democratic senators. (Thomas and Kavanaugh were eventually confirmed to the Supreme Court; Bork was not.) Polarization in Congress has contributed to this conflict, as shown in Figure 14.3 below. Whereas in the past Supreme Court nominees could usually count on votes from both parties, recent nominees have been entirely or almost entirely supported by members of the president’s party.

Figure 14.3: Supreme Court confirmation votes, 1987–2022 (Source: U.S. Senate)

Polarization has also led to changes in the nomination process. During Barack Obama’s presidency, Senate Republicans frequently 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. Republicans preferred to gamble that a victory in the 2016 presidential election would allow them to nominate a judge more conservative than Garland. When this gamble paid off, embittered Democrats closed ranks to filibuster Donald Trump’s first Supreme Court nominee, Neil Gorsuch. In response, Senate Republicans lowered the cloture threshold for Supreme Court nominations to 51 votes as well.

The contentiousness of modern Supreme Court nominations stems from the court’s influence. In recent decades, the Supreme Court has decided 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). Because Supreme Court justices serve for life unless resignation, impeachment, or promotion foreshortens their service, presidents who install one or more justices can impact American politics long after their terms come to an end.