What to Know About the Process of Confirming a Supreme Court Justice

Posted March 9, 2022

In January, Associate Justice Stephen Breyer announced his retirement from the U.S. Supreme Court. A month later, President Joe Biden announced that he would nominate Judge Ketanji Brown Jackson of the U.S. Court of Appeals for the District of Columbia to replace the retiring justice. Breyer continues to serve on the court as Jackson undergoes the confirmation process.

Chad Slieper, director of the Law, Science, and Technology program in the School of Public Policy, explains what to expect as Jackson attempts to become America’s 104^th associate justice and the first Black woman to serve on the nation’s highest court.

“Given that Supreme Court justices serve for life, appointing one is a huge opportunity to help shape the philosophy of the court and exert influence over the country’s political system in a way that typically long outlives the president’s own term,” Slieper said.

Article II of the U.S. Constitution specifies that presidents appoint Supreme Court justices with the advice and consent of the Senate. Jackson will face confirmation hearings in front of the Senate Judiciary Committee, where members will examine her qualifications and previous decisions.

From there, the Senate will vote on whether to allow her onto the court. Since 2017, Senate rules have held that if a Senator chooses to filibuster a confirmation vote, a simple majority of the chamber can end it. That is different from the 60 votes required to end many other filibusters. Given that there are currently 50 Democrats and 50 Republicans, if all Democrats vote the same way, a Republican abstaining or crossing the aisle or Vice President Kamala Harris could break a potential tie, Slieper explains.

Since Democrats hold the slimmest majority possible, and the midterm elections will occur in November, Slieper expects that Democrats will move quickly to try and confirm President Biden’s nominee.

Members of the House of Representatives are not involved in the confirmation process of a Supreme Court nominee, as Article II mentions only the Senate.

“The Senate is viewed as a body that is slightly more insulated from a variety of pressures and more deliberative than the House of Representatives,” Slieper said. “This is in no small part because senators serve longer terms than representatives, and their terms are staggered, so they’re not all up for election every two years.”

If confirmed, Judge Jackson will become Associate Justice Jackson. Slieper notes that in the federal court system, the title of “Justice” is reserved for those on the Supreme Court, which comprises eight associate justices and one chief justice. The chief justice is not the most senior member, but one appointed to fill that role specifically; President George W. Bush nominated John Roberts to serve in that role after the death of William Rehnquist in 2005.

“They each get a single vote, and in that way, they are equal to one another,” Slieper explained. “The chief justice, however, also gets to do things like set the procedures for oral arguments, and even more importantly, assign who will write the Court’s opinions when they are in the majority of a decision.”