What Happens After the Nomination? How a Nominee becomes a Supreme Court Justice

On January 31, 2017, President Trump nominated Judge Neil M. Gorsuch, a Coloradan and judge on the Tenth Circuit Court of Appeals (“Tenth Circuit”), to fill the open seat on the United States Supreme Court that has been empty since Justice Antonin Scalia died on February 13, 2016.i   Judge Gorsuch was nominated to the Tenth Circuit by President George W. Bush on May 10, 2006, and confirmed by the Senate on July 20, 2006.  Prior to serving on the Tenth Circuit, Judge Gorsuch earned degrees from Columbia University, Harvard Law School and Oxford University, and he also served as a law clerk for the only other Coloradan who has served on the Supreme Court, Associate Justice Byron R. White and the still-serving Associate Justice Anthony M. Kennedy.ii

While Judge Gorsuch’s legal and personal history are going to be widely discussed over the coming weeks and months, what else happens after the nomination?  How does a nominee become a United States Supreme Court Justice?iii

First, the nominee will begin filling out an elaborate questionnaire detailing every client he has ever had, sources of income, speaking fees, media interviews, writings – and more.iv   This questionnaire, which can be hundreds of pages long, is provided to the Senate for their review.  Additionally, the F.B.I. and Senate Judiciary Committee will begin investigating the nominee.

Next, the nominee will hold private meetings with as many senators as possible.v   These meetings are short, 15 minutes to an hour, closed-door sessions during which both the senators and the nominee are trying to learn more about each other.  These meetings allow the nominee to get a feel for the types of concerns that might arise regarding his nomination.

After the private meetings come the public hearings, but before those hearings take place several things are going on behind the scenes.vi   First, Democratic and Republican senators will negotiate the particulars of the confirmation hearing(s) – when it will take place, the number of rounds of questioning and other issues.  At the same time, the nominee will participate in mock hearings in an effort to prepare for and simulate the confirmation hearing.  These mock hearings are administered by the nominee’s advisers who are politely known as a “murder board.”

Then it’s time for the big show.  The nominee will face questions from the twenty members of the Senate Judiciary Committee (11 Republicans and 9 Democrats).  The televised public hearings last several days and see the nominee pressed on his or her judicial philosophies.vii   After the public hearings the Senate Judiciary Committee will vote on sending the nomination to the full Senate.  A simple majority is needed, but by tradition, Supreme Court nominations are sent to the full Senate even if the nominee is rejected by the Senate Judiciary Committee.viii

The last thing a nominee needs to become a Supreme Court Justice is confirmation by the Senate.  This final step is wrought with intrigue.  There is the possibility of a potential filibuster of the nomination, which requires sixty votes to end, unless the party opposing the filibuster resorts to the so called “nuclear option.”ix   That option — confirmation with a simple majority — was first employed by former Senate Majority Leader Harry Reid (NV-D) to confirm lower level court nominees in the face of Republican resistance to Obama judicial appointments. Senate Majority Leader Mitch McConnell (KY-R) has stated his reluctance to go “nuclear,” but President Trump recently urged him to get over that reluctance in order to confirm Gorsuch.

Assuming Judge Gorsuch is confirmed by the Senate later this year, it will have been over a year since Justice Scalia’s death.  During that time the United States Supreme Court has been without a tie-breaking ninth vote.  While the wait continues, the process by which a nominee becomes a Supreme Court Justice is just getting started.

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i“Trump Nominates Neil Gorsuch to the Supreme Court,” by Julie Hirschfeld Davis and Mark Landler dated January 31, 2017 accessed at https://www.nytimes.com/2017/01/31/us/politics/supreme-court-nominee-trump.html and “Trump picks Colo. Appeals court judge Neil Gorsuch for Supreme Court,” by Robert Barnes dated January 31, 2017 accessed at https://www.washingtonpost.com/politics/trump-picks-colo-appeals-court-judge-neil-gorsuch-for-supreme-court/2017/01/31/2b08a226-e55e-11e6-a547-5fb9411d332c_story.html?.
iihttps://www.ca10.uscourts.gov/judges/judge-neil-m-gorsuch
iii“Trump Has Made His Supreme Court Nomination.  What Happens Next?” by Daniel Victor dated January 31, 2017 accessed at https://www.nytimes.com/2017/01/31/us/politics/supreme-court-nomination-process.html?emc=edit_tnt_20170131&nlid=77201887&tntemail0=y&_r=1.
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ixId. and “Trump endorses use of ‘nuclear option’ to confirm his Supreme Court pick,” by John Wagner and Ashley Parker dated February 1, 2017 accessed at https://www.washingtonpost.com/news/post-politics/wp/2017/02/01/trump-endorses-use-of-nuclear-option-to-confirm-his-supreme-court-pick/?utm_term=.6f2fb9953eb5.
 

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