What does the US Constitution say about the Supreme Court selection process?

Answer 1

Article II of the Constitution states that the President has sole authority to nominate most federal judges and justices with the "advice and consent" of the Senate. The Senate signals it's approval or disapproval of a nomination by voting. Only a simply majority (51%) of favorable Senate votes are required to confirm a nomination.

Answer 2

Article II defines the role and enumerates the powers of the President of the United States. Section 2, Paragraphs 2 and 3 contain information about the nature of appointments (actually nominations) the President may make to certain government positions, including filling vacancies for federal judges and Supreme Court justices.

This section is called the "Nomination" clause, because the Constitution specifies that the Senate also plays a role in the selection process, in that they have the right to confirm or reject any nominee the President advances for the offices listed (by a simple majority vote, except in cases of filibuster).

When there is a vacancy on the bench the President (Executive branch) nominates a person to be a Supreme Court justice. Usually, the President receives recommendations from trusted advisors, or may have someone in mind whom an earlier President appointed to a US Court of Appeals Circuit Court to gain judicial experience.

The FBI investigates the nominee's background and returns a report to the Senate Judiciary Committee. The Committee considers the candidate's judicial and personal record to determine suitability for office, then holds a hearing to question him or her about judicial record, political philosophy, ideology, and anything else they find appropriate. The Committee discusses the findings and may follow-up with addition written questions.

When the Committee is satisfied they have enough information to make a recommendation, they vote to decide whether to send the vote to the floor with a recommendation that the full Senate vote for or against commissioning the nominee. Occasionally, if the Committee is split in its opinion, they may send the vote to the floor with no recommendation.

The full Senate may hold its own hearing, which generally lasts less than a week, where they may also question the candidate before voting. If the nominee receives a simple majority (51% of those present) vote, he or she officially becomes a Supreme Court Justice.

If the Senate rejects the nominee, the President will pick another nominee or may nominate the same person for additional review. This authority comes from Article II, Section 2 of the US Constitution, which states that the President has the power to nominate, and by and with the consent of the Senate, appoint Judges of the Supreme Court. Thus the President nominates but does not appoint Justices of of the Supreme Court. Actual appointment occurs only after Senate confirmation.

Note that Paragraph 3 provides for recess appointments, which is the power to place a candidate in a particular role while Congress is on recess. These are actually nominations with deferred "advice and consent," because Congress has the right to approve or reject that person's permanent commission upon their return from recess and before the temporary appointment period ends (if they do nothing, the position become vacant at the end of the specified period - usually at the conclusion of the next calendar year).

The Senate rejected John Rutledge as Chief Justice in 1795, because they were concerned about his mental status. Rutledge is the only Supreme Court justice ever forced out of office involuntarily.

President George W. Bush deliberately used recess appointments to bypass filibusters by the Democratic Senators, who opposed some of his federal court (not Supreme Court) choices.

Senate Majority leader Harry Reid worked out an agreement with Bush prior to the 2007 summer break to prevent abuse of this Presidential power while Congress was out. The agreement didn't extend through the Thanksgiving and winter holiday, however, so Reed chose to keep Congress in session, meeting pro forma*every three days to prevent the recess appointment of James Holsinger as U.S. Surgeon General during the break.

Only once in the history of the Court has a President made a recess appointment that was later rejected by Congress. George Washington appointed former Associate Justice John Rutledge to succeed John Jay as Chief Justice of the United States in August 1795. The Senate refused Rutledge's commission, and his tenure ended in December 1795.

According to Cornell University Law School, "The Constitution appears to distinguish three stages in appointments by the President with the advice and consent of the Senate. The first is the "nomination" of the candidate by the President alone; the second is the assent of the Senate to the candidate's "appointment;" and the third is the final appointment and commissioning of the appointee, by the President."

Article II, Section 2, Paragraphs 2 and 3

"Nomination Clause"

He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court,and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.

The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.

Article III

Article III, which discusses the Judiciary, only prescribes that judges and justices may hold their office during periods of "good behavior," which would also logically apply to a reasonable period of time before nomination and during the Senate vetting process.

Article III does not specify any qualifications necessary for holding judicial office:

Article III, Section 1

"The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office."

You are referring to the "Advice and Consent Clause" in Article II, Section 2, Paragraph 2 of the US Constitution, where some of the President's enumerated powers are subject to review and confirmation by the Senate.

*Meeting Pro forma means they convened a session simply to satisfy the basic requirements of the Constitution, which provides that neither chamber (the House nor Senate) may adjourn for more than three days without the consent of the other. This is part of the system of checks and balances instituted by the Constitution.

Answer 3

It is a political process.