US Supreme Court Appointment Process

Last week, US Supreme Court Justice Stephen Breyer announced he would retire at the end of the current term. 

American President Joe Biden stated that he intends to quickly announce his nominee to replace Breyer.

For people interested in the process, the Congressional Research Service has updated its guide on the Supreme Court Appointment Process: President’s Selection of a Nominee:

"The appointment of a Supreme Court Justice is an event of major significance in American politics. Each appointment is of consequence because of the enormous judicial power the Supreme Court exercises as the highest appellate court in the federal judiciary. Appointments are usually infrequent, as a vacancy on the nine-member Court may occur only once or twice, or never at all, during a particular President’s years in office. Under the Constitution, Justices on the Supreme Court receive what can amount to lifetime appointments which, by constitutional design, helps ensure the Court’s independence from the President and Congress."

"The procedure for appointing a Justice is provided for by the Constitution in only a few words. The “Appointments Clause” (Article II, Section 2, clause 2) states that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint ... Judges of the supreme Court.” The process of appointing Justices has undergone changes over two centuries, but its most basic feature—the sharing of power between the President and Senate—has remained unchanged: To receive appointment to the Court, a candidate must first be nominated by the President and then confirmed by the Senate. Political considerations typically play an important role in Supreme Court appointments. It is often assumed, for example, that Presidents will be inclined to select a nominee whose political or ideological views appear compatible with their own."

"The political nature of the appointment process becomes especially apparent when a President submits a nominee with controversial views, there are sharp partisan or ideological differences between the President and the Senate, or the outcome of important constitutional issues before the Court is seen to be at stake."

"Additionally, over more than two centuries, a recurring theme in the Supreme Court appointment process has been the assumed need for professional excellence in a nominee. During recent presidencies, nominees have at the time of nomination, most often, served as U.S. appellate court judges. The integrity and impartiality of an individual have also been important criteria for a President when selecting a nominee for the Court."

"The speed by which a President selects a nominee for a vacancy has varied during recent presidencies. A President might announce his intention to nominate a particular individual within several days of when a vacancy becomes publicly known, or a President might take multiple weeks or months to announce a nominee. The factors affecting the speed by which a President selects a nominee include whether a President had advance notice of a Justice’s plan to retire, as well as when during the calendar year a Justice announces his or her departure from the Court."

The Congressional Research Service, based in Washington D.C., is a US federal government agency that conducts research for the US Congress.