Making History: Setting Precedent for the Supreme Court Nomination Process
Introduction:
The announcement of Supreme Court Justice Stephen Breyer’s retirement on January 27, 2022 come the end of the current Supreme Court term in June 2022[1] has allowed President Joseph Biden to nominate a successor.[2] He promised to nominate a qualified Black woman to the seat, as he stated at a White House event, “The person I will nominate will be someone with extraordinary qualifications, character, experience and integrity, and that person will be the first Black woman ever nominated to the United States Supreme Court. It’s long overdue, in my view.”[3] On February 25, 2022, he fulfilled his promise and officially nominated Ketanji Brown Jackson for the position.
Procedure and Precedent:
An official nomination of a candidate is the first step in the confirmation process. Following the nomination, the Senate Judiciary Committee – consisting of 11 republicans and 11 democrats to mirror the ratio of the split Senate – vets the nominee’s credentials and background, including finances and past legal decisions. The Committee then holds multiple hearings to question the nominee’s qualifications, allowing the nominee to respond, followed by a vote to send the nominee to the Senate floor for debate. The hearing for Jackson concluded on March 24, 2022, and on April 4, 2022 the panel deadlocked in a vote for the first time since 1991. The vote was 11-11 along party lines, causing a full Senate vote to be necessary in order to discharge Jackson’s nomination from the committee to the Senate floor. The Senate vote was 53-47, allowing for debate with a conclusory vote to confirm the nominee.
This process, from nomination to confirmation, takes an average of 72 days.[4] However, the confirmation of Justice Amy Coney Barrett lasted 27 days and ended with a confirmation just 8 days before the 2020 election; it was expedited to ensure a conservative appointed Justice to the vacant seat left by late liberal Justice Ruth Bader Ginsburg.[5]
Democrats utilized the expedited confirmation of Justice Amy Coney Barrett as a standard for their own with Ketanji Brown Jackson. Senate Majority Leader Charles Schumer affirmed their intentions, stating, “President Biden’s nominee will receive a prompt hearing in the Senate Judiciary Committee, and will be considered and confirmed by the full United States Senate with all deliberate speed.”[6] Due to a change made under President Trump before the confirmation of Justice Brett Kavanaugh, a Supreme Court nominee needs only a 51 vote majority.
Justice Ketanji Brown Jackson was confirmed on April 7th, 2022 by a vote of 53-47 and will be sworn in upon Justice Breyer’s retirement in June 2022.[7] Democrats initiated the expedited process before Republican members had vocalized their support. A swift confirmation was desired prior to June 2022 while they had the necessary seats in the Senate, especially with the imminent retirement of Senator Diane Feinstein (D-CA), currently 88. Governor Gavin Newsom (D-CA), who has the power to appoint a successor should a vacancy arise, would have had to make an appointment before the confirmation and had he not, votes along party lines would not have allowed for the confirmation of Ketanji Brown Jackson.
If these Republican Senators had not vocalized their support, however, a nomination still would have taken place with the current standing. The Vice President has the power to cast a tie-breaking vote in the case of a split senate like that of the current 177th Senate. Vice Presidential power in nominations also came into question in 2020 for the confirmation of Amy Coney Barrett when Republicans held a slim majority of 53 senators, where the same conclusion was made. Despite sources stating otherwise, tie-breaking votes were necessary[8] for the confirmation of nominees in the past and can still be utilized.[9]
Conclusion:
The precedent set by the expedited deliberation of Justice Amy Coney Barret and the change made under President Trump that only required a simple majority to confirm a nominee suggests this is a historical turning point for the nomination process of a Supreme Court Justice. This Senate rule has become especially notable amidst the split Senate and particularly polarized nation. While the Vice President may not have had to cast a tie-breaking vote for Ketanji’s nomination, the Senate rule has been set for this to inevitably become an issue. Should that power be wielded, and should the Vice President’s action therefore be disputed, the case would be heard before the Supreme Court regarding the constitutionality of the tie-breaking vote. The decision, of course, would be influenced by the split of the Supreme Court bench; the future of the Court rests on the very Court itself.
