President Donald Trump named Amy Coney Barrett, 48, a judge with the 7th U.S. Circuit Court of Appeals in Chicago, as his nominee to replace Supreme Court legend Ruth Bader Ginsburg.
Trump, who has seen two of his nominees join the Court, had promised to name a woman. Ginsburg, a Justice for 27 years, died Sept. 18 at the age of 87. Saturday's announcement, eight days after Ginsburg's death, has intensified partisan debate in the Republican-dominated Senate.
Democrats say the new Justice could shift the court’s balance to 6-3 in favor of conservatives and lead to the overturning of the Roe v. Wade abortion ruling, the ending of the Affordable Care Act, and restriction of LGBTQ rights.
"The Court plays an outsize role in constitutional law," says Saikrishna Prakash, the James Monroe Distinguished Professor of Law at the University of Virginia Law School. "These nine people decide what our Constitution means."
The president had two other women in mind, according to sources: Barbara Lagoa, 52, a judge with the 11th U.S. Circuit Court of Appeals in Atlanta; and Allison Jones Rushing, 38, a judge with the 4th U.S. Circuit Court of Appeals in Richmond, Va.
On average, a new Justice joins the Supreme Court almost every two years, according to supremecourt.gov. Going back to the Ford administration, it takes an average of nearly 71 days from nomination to a Senate vote.
If confirmed, Barrett will join a bench of five conservative and three liberal judges.
The Senate vote on Barrett can take place after the election, until Jan. 2, 2021. Senators who won in the 2020 election take their seats on Jan. 3.
If the vote doesn’t take place by Jan. 2, Barrett's nomination will be returned and the winner of the 2020 presidential election will name another. If Trump wins, it's likely he'll renominate Barrett.
How Supreme Court candidates are nominated and vetted:
1- Presidential nomination
The president nominates a candidate to fill a Supreme Court vacancy. Presidents usually choose someone whose political views match their own, but the choice is made in consultation with administrative staff, senators, and others.
"Probably the most important influences are the lawyers in the Office of White House Counsel," says Professor Brian Fitzpatrick, the Milton R. Underwood Chair in Free Enterprise at Vanderbilt Law School in Nashville. "They review and propose judges for the president."
With a few notable exceptions, including Sandra Day O'Connor and Elena Kagan, the nominee pool "is now almost exclusively judges from lower federal courts," Fitzpatrick says. "It's become the modern practice."
Barrett is from the lower-court pool. In the past, nominees came from other areas of government, "but now, the reality is, you must have technical, legal and constitutional skills and experience in complex areas of the law," Fitzpatrick says.
USA TODAY reported Trump’s nominee came from a list compiled with the help of conservative groups, including the Federalist Society and the Heritage Foundation.
2- Background investigation
Nominees can expect their personal and professional lives will be fully investigated before they are formally selected. The investigation is divided into two parts:
Public records and professional credentials are usually checked by senior Justice Department and White House officials.
Private background checks, generally conducted by the FBI, which also examines the nominee’s personal finances.
The investigations, which become more focused as the list of candidates is whittled down, certify the nominee’s qualifications and look for anything that could prevent a candidate from being confirmed.
3- Judiciary Committee review
The nomination is first sent to the Senate Judiciary Committee – 12 Republicans and 10 Democrats – for consideration.
In preparation for a hearing, the committee initiates its own “intensive investigation into the nominee’s background” says the Congressional Research Service.
It starts with a detailed questionnaire seeking biographical and financial information and past activities. The document can be extensive; for example, Justice Brett Kavanaugh’s 2018 questionnaire was 110 pages with questions and responses.
Administrative aides can assist nominees in answering questions. Committee members can ask for more information in addition to the questionnaire.
The committee examines the nominee’s past. It also gets the FBI’s confidential reports, but these are restricted for security.
4- Meet and greet on the Hill
Before the Senate Judiciary Committee hearing, Barrett, like previous nominees, will pay “courtesy calls” on non-committee senators in their Capitol Hill offices. For some senators, this is may be the first time they meet the nominee they’ll be voting on.
They're important for nominees because "they help establish a rapport with someone who is going to vote on you," Prakash says. "You don't want to come off as being arrogant."
The meetings may not always work as a charm offensive, "but they do help humanize nominees, who are sometimes treated as political punching bags," Fitzpatrick says.
Senators are not obligated to meet nominees and in the past, some have declined to do so. "Senators are going to do what's good for them politically," Fitzpatrick says.
American Bar Association evaluation
The American Bar Association will review Barrett and give its recommendation to the Judiciary Committee – this time in an unofficial capacity.
Since 1956, with some exceptions, presidential administrations have included the ABA in the nomination process of Supreme Court and other judicial candidates.
The association received advance information on nominees. It evaluated them and issued ratings based on integrity, competence and judicial temperament. It issued one of three recommendations: Well Qualified, Qualified, or Not Qualified, and forwarded it to the Judiciary Committee.
However, the Trump administration “fired” the ABA in 2017 and said it would not give the association special access to judicial nominees. George W. Bush’s administration did the same during his presidency.
The separation stems from a dispute whether the association has shown a preference for Democratic nominees. The ABA maintains it is nonpartisan.
5- 'Murder boards' are practice for hearings
Candidates prepare for Senate Judiciary Committee hearings with “murder boards” – exhausting but necessary sessions in which "they get practice to go in front of the Judiciary Committee," Fitzpatrick says.
"They're asked the questions that senators will probably ask. It gives them a chance to think through their answers."
Murder boards are conducted by the administration and designed to be demanding for candidates. Nominees are closely questioned on legal, ethical and constitutional issues that may come up during committee hearings.
The questioning can get tough.
Once in front of the committee, "you're bombarded with questions," Prakash says. "You don't want to be unprepared. The murder boards give nominees some flavor of what to expect from senators."
That's because "in high-profile hearings, politicians can make a name for themselves by asking pointed questions or engaging with the nominee," Prakash says.
6- Committee holds multi-day hearings
The focus now shifts to the Senate Judiciary Committee, where Supreme Court nominees historically didn’t appear for testimony until 1925. Subsequent appearances were sporadic, but all candidates have testified before the committee since 1955. Hearings usually last 3 to 5 days but can go longer.
Senators want to learn about nominees, but "if you're a senator, you're thinking about how my vote will affect my political career," Prakash says.
In the hearing, nominees can be questioned on those issues and their qualifications and social and political issues. Witnesses, including legal experts or representatives of advocacy groups, can also testify. Confidential matters are held in closed-door sessions.
"Judicial philosophy is a major consideration," Fitzpatrick says. "Generally, Republicans want judges who aren't going to make law; Democrats want judges who will."
For some nominees, it's a new experience. "Most of these judges don't get asked questions," Prakash says. "They ask the questions."
"Now they find themselves on the hot seat, being questioned by senators who can be skeptical, hostile, or even angry."
7- Committee recommendation
Within a week after the hearing, the committee votes on the nomination. By a majority vote, it can recommend that the Senate either:
- Confirm the candidate, or
- Reject the candidate
It can also issue a No Recommendation, which is neither positive or negative.
Whatever the recommendation, the committee sends it to the full Senate, led by Majority Leader Mitch McConnell, R-Ky. The Senate decides whether Barrett will join the Court.
8- Senate votes to confirm or reject
The last step for Barrett will be the full Senate vote, but first senators must agree to consider the nomination.
Senate Majority Leader Mitch McConnell, R-Ky., schedules when the Senate will consider. Traditionally, the majority leader asks for unanimous consent to proceed.
Without unanimous consent, McConnell can make a motion to consider, and the Senate votes. A simple majority of senators present decides to take up the nomination.
Debate follows, with senators taking the floor to support or oppose the nominee.
If Democrats are unable to postpone the proceedings, Vice President Mike Pence, the Senate’s presiding officer, will ask for a vote after the debate. It's phrased this way:
The Senate decides with a simple majority vote, often but not always, taken by roll call, with senators voting “yea” or “nay” as their names are called. If the vote is tied, the vice president casts the deciding vote.
9- Presidential commission and oath of office
If Barrett is confirmed, the Secretary of the Senate attests to the result and sends it to the White House. After the president signs a document called a commission, the new Justice can take the oath of office.
SOURCE USA TODAY reporting and research; Congressional Research Service; Georgetown Law Library; supremecourt.gov; senate.gov; American Bar Association; Poynter Institute; National Law Journal; Bloomberg; National Constitution Center; Brennan Center for Justice at New York University Law School; Associated Press