Nomination and Confirmation Process
Between the U.S. district courts, the U.S. appellate courts, and the U.S. Supreme Court, there are hundreds of federal judges who hear cases every year. The Constitution does not specify qualifications for these judges, other than that they be on their best behavior when serving. Article 3, Section 1, states:
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.
The Judicial Conference of the United States makes policy for the federal courts. One of its most important jobs is identifying which judgeships will need to be filled soon (due to pending retirement, for example). It also determines which districts might require additional judgeships in the near future, though creation of new judgeships requires legislation that must be enacted by Congress. Once a vacant or new judgeship is identified, the president submits a nomination for the position to the Senate. The Senate Judiciary Committee reviews and investigates the candidate and holds a confirmation hearing, a committee session in which a presidential nominee and others are questioned in order to investigate the nominee's qualifications and background prior to confirmation. The committee then makes a recommendation to the full Senate. This recommendation may be to confirm or to reject the candidate. The committee may also forward on the candidate with no recommendation.
Finally, the full Senate debates and votes on the candidate. A simple majority of the senators present and who choose to vote is necessary for confirmation. A formal commission is then sent to the new judge, who is appointed for life. Federal judges remain in office until they resign, retire, or die, though they can be impeached and removed from office for misconduct. Over time, 15 federal judges have been impeached by the House of Representatives. Of those, eight were convicted by the Senate, and three resigned from office and had further proceedings dismissed. The rest were acquitted by the Senate.
Characteristics of Federal Judicial Nominees
There are no formal qualifications for federal judges. However, there are many personal and professional characteristics that make a candidate attractive. In theory, the judiciary is independent and nonpartisan, but since the late 20th century in particular it has been common for justices to vote in a manner consistent with the party of the president who appointed them. Thus, when choosing a justice, a president will seek a justice with a judicial philosophy consistent with his or her own and to consider how the justice might support his or her policy agenda.
During the confirmation process, senators ask nominees questions to try to determine that judicial philosophy and the nominee's views on certain key issues. Nominees tend to respond in ways that avoid pinning themselves down on specifics and may politely refuse to answer, particularly on hot-button issues like abortion, on the grounds that they should not comment on an issue that may come before the court.
A president also attempts to nominate a candidate with an unblemished professional and personal history. Scandals or legal controversies will hurt the candidate's chances for confirmation. Therefore, a reputation for integrity has become standard in the nomination process.
Age also plays a role in how attractive a nominee is to the president. Federal judgeships are lifetime appointments. A newly confirmed judge can potentially serve on the court for decades. The long-term nature of federal judgeships was intended to insulate them from politics. The framers hoped judges would focus on the job at hand and not on their position within political parties. However, the prospect of lifetime appointment can make confirmation hearings and debates a source of political tension. Senators of both parties must consider how their vote will influence federal court activity for decades into the future.
Presidents also may consider the demographics of potential nominees. Historically, federal judges have been Protestant white males. Catholic Robert Taney joined the Supreme Court as chief justice in 1836, but the next Catholic did not reach the court until 1894. The first Jewish justice on the Supreme Court was Louis Brandeis, who joined the court in 1916. The first woman federal judge, Genevieve Rose Cline, took her seat on the U.S. Customs Court (now the U.S. Court of International Trade) in 1928. This was followed by the appointment of Florence Allen in 1934 to a seat on the Court of Appeals for the Sixth District. It was not until the 1970s that appointments of women became more common. In 1981 Sandra Day O'Connor became the first woman to serve on the U.S. Supreme Court. Federal judges were exclusively white until 1937, when African American lawyer William Hastie was appointed to the U.S. District Court of the Virgin Islands. In 1967 Thurgood Marshall was confirmed as the first African American Supreme Court justice. The appointment of nonwhite federal judges followed a mostly upward trend throughout the second half of the 20th century. Gender, racial, and ethnic diversity are factors that presidents now consider when making judicial appointments.
Growing Contentiousness of Judicial Confirmations
Until the late 20th century, most federal judicial nominees were confirmed by the Senate with relative ease. With the exception of a dip under President Gerald Ford, the percentage of confirmed candidates remained at 93 percent or higher from the early 1960s until the early 1990s. It dropped to 78 percent under President George H.W. Bush, and confirmations remained between 80 and 90 percent through the Obama administration. In addition, the time it takes for the Senate to vote on confirmation has increased.
In the past it was not uncommon for senators to filibuster during a nominee's confirmation. Filibustering is a legislative tactic to delay a vote. The escalating tension surrounding federal judicial confirmations has resulted in changes to rules for the filibuster. In 2013 Democratic senators became frustrated that Republican senators delayed votes on a number of judicial nominees. The Democrats changed the Senate rules for ending filibusters on nominees to a simple majority vote. The typical number of votes required for cloture, or ending debate, is a three-fifths majority. This new rule did not apply at the time to Supreme Court nominees, but in 2017 the Republican majority in the Senate extended the simple-majority filibuster rule to Supreme Court nominees. As a result, if a president's party controls the Senate, it is very likely that any judicial nominees will be confirmed—though if the majority is very narrow, that likelihood goes down.
One tradition that gave a greater voice to senators regarding vacancies in courts in their states weakened in the 2010s. Under a practice called senatorial courtesy, it was understood that judicial nominees had to meet the approval of senators from the state in which the judges will serve—particularly the senior senator. This long-standing practice is not found in the Constitution but was a Senate custom. The tradition enabled senators from the party opposing the president to exercise an effective veto on that president's nominees, though the Senate also had a tradition of largely granting a president the right to exercise the appointment power unless a nominee's background raised serious questions of character or competence. In the increasing partisanship of politics in the 21st century, that cross-partisan cooperation collapsed, and senators used senatorial courtesy to hold up judicial nominees. In the 2010s, then, both parties abandoned the practice. In 2013 Democrats in control of the Senate jettisoned senatorial courtesy regarding lower court judicial nominees. In 2017 Republicans in control of the Senate moved away from the practice for Supreme Court nominees.