Kitchen Table Economics

Filling a Vacancy on the Supreme Court: What You Need to Know

Justice Anthony Kennedy recently announced his retirement after 30 years of serving on the U.S. Supreme Court. After being appointed to the position in 1988 by President Ronald Reagan, Kennedy has been a key player in many decisions handed down by the high court, and in the last decade has become known as the “swing vote.”

But the question is what happens from here? With the midterms approaching, the process is likely to be hyper politicized, but nevertheless will follow the same procedures that are laid out in the U.S. Constitution to select a new Justice. Below are the three key steps.

1.)    Nomination: When a vacancy appears on the court, whether as a result of retirement or death, the first step in the process is for the president to decide on a nominee for the position. There are no official rules in our founding documents that establish criteria that a nominee must meet. So technically, the president can select whomever they’d like—however, typical protocol is to choose a sitting judge from a lower court.

2.)    Senate Judiciary Committee: The president’s nominee must then appear before the Senate Judiciary Committee—adhering to a clause in the Constitution that states the nominee must get the “advice and consent of the Senate.” Here the nominee is questioned and their background investigated. The committee then votes on whether to advance the nominee to the full Senate, and if so, will offer a favorable recommendation, unfavorable recommendation, or no recommendation at all.

3.)    Confirmation: Once the nominee makes it through the committee, they are voted on by the full Senate. In order to pass, the nominee needs a simple majority vote—which in this case would be 51 votes. If this final hurdle is cleared, the nominee is sworn in as the next Supreme Court Justice.