Supreme Court Confirmation: What to Expect, What to Watch

President Joe Biden has nominated Judge Ketanji Brown Jackson to the Supreme Court to replace retiring Justice Stephen Breyer, fulfilling the election promise he made to replace Breyer with a Black woman.

The nomination process enters a new phase now that Brown Jackson has been chosen. What can you expect?

What happens next in the process?

The confirmation process kicks off with hearings in the Senate Judiciary Committee, chaired by Illinois Democrat Dick Durbin. Senators and activist groups will pore over Jackson’s record in preparation for the hearings. Jackson sits on the federal appellate court in Washington, D.C. — there is no Constitutional requirement that the person is a judge or even a lawyer. However, recently that is the custom.

How long will the confirmation process take?

The confirmation process does not have a set timeline. Some confirmations are quick, while others take much longer due to the political climate at the time. With the 2020 election quickly approaching and the increasingly likely loss of the Senate by Republicans, Amy Coney Barrett’s nomination was pushed through at lightning speed — taking less than a month. Before that, the quickest confirmation was Ruth Bader Ginsburg’s in 1993, which took two months. More commonly, confirmation takes months.

How many votes does Judge Jackson need to be confirmed?

Confirmation in the Senate takes 51 votes — a simple majority.

Why do I keep hearing about 60 votes?

Republicans are determined to maintain a 60-vote legislation threshold. However, they got rid of the filibuster for Supreme Court nominees during Trump’s time in office, so confirmation only requires a simple majority.

If there is a 50-50 tie, Vice President Kamala Harris is the tie-breaking vote. A tie is a real possibility in these profoundly partisan times. There are 48 Democrats, 50 Republicans, and two independents who usually vote in line with the Democrats in a completely split chamber.

Will any Republicans vote in support of the president’s nominee?

In confirmation hearings of the past, overwhelming support for nominees was common, regardless of the candidate’s political views. Although Justice Breyer is considered a liberal justice, he was confirmed 87-9. However, prior bipartisanship has not been seen in recent years.

None of former President Trump’s nominees received more than 54 votes. More moderate Republicans, including Senators Lisa Murkowski of Alaska and Susan Collins of Maine, may be the deciding votes.

Are all Democrats expected to vote for Biden’s nominee?

One Senator to keep an eye on is Democrat West Virginia Senator Joe Manchin. Manchin has been willing to buck party pressure and vote against the party line. A few other Democrat senators could also surprise with a ‘no’ vote.

What top issues can we expect in the hearings?

Abortion is a frequent key issue during nomination battles. Depending on the result of the confirmation, the court seems poised to either drastically scale back or overturn Roe v. Wade. Voting rights will also be crucial as Democrats make it a top priority heading into the 2022 midterms. The current court has ruled on many decisions regarding voting rights in recent months.

Is there a term limit for Supreme Court Justices?

A Supreme Court Justice can serve a life term. They can also retire at a time that they choose. When they are nominated, most justices are in their late 40s or early 50s. Judge Jackson is 51. Justice Breyer was 56 when President Bill Clinton chose him for the court in 1994. Brett Kavanaugh and Neil Gorsuch, both appointed by President Trump, are in their early to mid-50s. Coney Barrett is 49.

Do the majority of justices serve a life term?

The average length of tenure on the Supreme Court has grown over the past century. According to Harvard Business Review, the average justice’s tenure will extend to 35 years. This is up 17 years over the previous 100 years.

Is that important?

Justices serving longer terms will affect the future of the Supreme Court. There will be fewer nominees, so Democrats have been eagerly awaiting Justice Breyer’s retirement while they control the Senate and the White House.

How do Supreme Court justices decide if it is time to retire?

Justices have strategically tried to time their retirements. Justices appointed by Republicans tend to wait for a Republican president to win office before retiring — same with the Democrats.

Justice Ginsburg waited to retire when Hillary Clinton won the presidency so that she could choose her successor. However, Clinton lost to Trump, and Ginsburg died on the bench with enough time for the former president to select her successor.

Likewise, Justice Antonin Scalia, a Republican-appointed justice, died at the end of Obama’s second term. When then-Senate Majority Leader Mitch McConnell refused to allow a hearing on Obama’s nominee to replace Scalia, preserved the court’s conservative leaning.

Should the size of the court be changed?

It depends on who you ask. The U.S. Constitution gives Congress the right to set the court’s makeup. However, whether or not the founding fathers intended justices to serve life terms is up for interpretation. The words of the Constitution say that justices shall serve during times of “good behavior.”

Language from Article III says:

“The judicial Power of the United States shall be vested in one supreme Court, and such inferior Courts as the Congress may from time to time ordain and establish. 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.”

Now that hearings have begun, it is time to see the confirmation process in real-time.

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