On Saturday, chairman Donald J. Trump stated he would look for to nominate a replacement because that the late Justice Ruth Bader Ginsburg, top top the supreme Court. The procedure in typical times complies with a fairly defined pattern. Yet the mix of one upcoming basic election and also the COVID-19 crisis could see some differences in the nomination process.

You are watching: How does a supreme court justice get confirmed

Justice Ginsburg passed away at the period of 87 ~ above Friday in Washington, D.C. The can be fried Court will duty with eight Justices once it convenes its long conference to consider brand-new cases around a week before the first Monday in October, the official start the its following term. For now, the Court will certainly hear debates using audio teleconferencing.

Under post II, section 2, that the Constitution, the can be fried Court nomination procedure starts through the selection of a can be fried Court nominee by president Trump. The chairman then will officially educate the Senate the the nomination—usually via a composed statement. This is concerned the Constitution’s “Appointments Clause” in post II, section 2, i 2, i beg your pardon reads the the president “shall nominate, and by and with the Advice and also Consent of the Senate, shall appoint … Judges the the can be fried Court.”

Article I section 5 of the Constitution allows both houses of congress to create their own rules because that proceedings, including the judicial check process. And also under the Senate’s existing standing rules, the nomination is sent out to the Senate Judiciary Committee, uneven the nominee is a present or former Senate member.

In current years, the average Supreme Court nomination and also confirmation process has taken between two and also three months. The nomination and confirmation procedure for righteousness Brett Kavanaugh it is long a little under three months, when the same process for righteousness Neil Gorsuch took a little over two months.

The existing Senate would have actually until January 2, 2021 to take into consideration the nomination and vote top top it. When a brand-new Senate is sit in the next Congress, the issue would need to be reconsidered if the nominee is not shown by the Senate. Because that example, once Merrick Garland’s nomination was not voted on by the Senate in 2016, his nomination was returned to the new President top top January 3, 2017.

While it is not unusual for a supreme Court nominee come be confirmed in the month of November and December, it would certainly be inexplicable in a basic election year v the presidential race underway. The most-recent justices confirmed by the Senate in a December Senate throughout a presidential election year were william Burnham Woods (in 1880), Ward hunt (in 1872), and Salmon follow (in 1864 together Chief Justice).

Once the president’s nomination is sent to the Senate, the Senate Judiciary chair, lindsey Graham, would certainly authorize a pre-hearing investigative stage about the nominee, complied with by public hearings in ~ the Judiciary Committee and a decision top top a referral to the full Senate.

The nominee first undergoes the extensive investigation process and meets v senators that are part of the approval process. Next, the nominee usually shows up at a public hearing in ~ the Senate, facing a range of concerns from the Judiciary Committee. Through a bulk vote, the Judiciary Committee can report the nomination favorably, report it unfavorably, or report it there is no making any kind of recommendation at all. It is also feasible for the committee to take no action of any form to send a report to the full Senate.

Once a recommendation vote is take away by the Judiciary Committee, and the nomination is sent out to the entire Senate for a floor vote, a simple majority is needed to check the nominee. The filibuster for can be fried Court nominees was got rid of in 2017, which would have required 60 votes because that the nomination to get a floor vote under cloture rules.

When the nomination is reported to the full Senate for consideration, that is put on its executive, management Calendar. The Senate majority Leader, Mitch McConnell, decides just how to method the poll process. The Republicans have actually 53 seat in the existing Senate, and also Vice president Mike Pence would vote to rest a tie vote, therefore 50 votes are required to check the nominee if the full Senate is present and voting.

The age of COVID-19 can complicate matters because much that the Senate’s company in considering can be fried Court nominations in the past has been performed in person, consisting of voting on the check of a can be fried Court nominee. For now, the Senate go not enable its members to vote remotely.

A different scenario would certainly involve a recess meeting to the supreme Court by president Trump. The Constitution allows the president to choose a member to the can be fried Court if a vacancy exists and Congress is no in session. Article II, section 2, clause 3 of the Constitution patent the chairman “to to fill up every Vacancies that might happen during the Recess of the Senate, by granting Commissions i m sorry shall expire at the finish of their following Session.”

The last supreme Court recess appointments were during the Eisenhower era: Earl Warren, william Brennan, and also Potter Stewart. In fact, president Eisenhower appointed justice Brennan come the Court on October 15, 1956, just weeks prior to a presidential election. The Senate then evidenced Brennan on in march 19, 1957.

However, the an interpretation and exercise of when the Senate is in recess has adjusted since the 1950s. In a current Congressional Research business report, the CRS cites the can be fried Court’s 2014 decision in National Labor relationships Board v. Noel Canning together limiting the President’s window to make a recess appointment to occasions as soon as the Senate has adjourned for at least 10 days.

"In light of historic practice, a recess of more than 3 days yet less 보다 10 work is presumptively too short to fall within the Clause,” claimed Justice Stephen Breyer because that a unanimous court. In a concurring opinion, justice Antonin Scalia thought that together vacancies could only be filled through the chairman if they occurred during a recess, and also not before.

Also, in April 2020, chairman Trump argued that he had the strength if needed under article II, section 3 to pressure Congress come adjourn. Under that provision, “in instance of Disagreement in between , with Respect to the time of Adjournment, might adjourn them to such Time as he shall think proper.” together a scenario would have to incorporate votes ~ above the House and Senate floors the differ on an adjournment time.

See more: Historic Site Of The 1969 Woodstock Festival, Woodstock Museum

If the president to be able to do a recess appointment to the can be fried Court, that justice is just eligible to offer for the next session of Congress uneven the righteousness is evidenced by the Senate. The CRS listed that that the 12 recess appointments made to the Court since 1789, every 12 justices obtained nomination votes in the Senate and also 11 to be confirmed. The exemption was chef Justice john Rutledge in 1795, who the Senate rejected since of his opposition to the Jay Treaty.