What are the next stages in the process to name new Supreme Court justice?

27 January 2022, 07:44

Members of the Supreme Court pose for a group photo at the Supreme Court in Washington (Erin Schaff/AP)
Members of the Supreme Court pose for a group photo at the Supreme Court in Washington (Erin Schaff/AP). Picture: PA

Stephen Breyer’s impending retirement gives Joe Biden the opportunity to keep his promise to nominate a black woman.

President Joe Biden and Senate Democrats are expected to move quickly to fill the seat of retiring Supreme Court Justice Stephen Breyer, seizing the chance to energise their voting base ahead of November’s midterm elections, when control of Congress will be at stake.

The president promised during his campaign to name a black woman to the Supreme Court if a vacancy arises, and the White House reiterated that commitment.

Fulfilling the promise would represent an enormous breakthrough for black Americans, who have long been underrepresented in the federal judiciary.

Supreme Court Associate Justice Stephen Breyer is set to step down (J Scott Applewhite/AP)
Supreme Court Associate Justice Stephen Breyer is set to step down (J Scott Applewhite/AP)

For Democratic politicians, it could also lessen the sting from their unsuccessful efforts to pass voting rights legislation or get Mr Biden’s ambitious social spending and environmental package over the finish line.

A look at the confirmation process and what we know, and do not know, about what is to come:

– What is next?

The Senate plans to launch the confirmation process as soon as Mr Biden makes a nomination.

Senate Majority Leader Chuck Schumer, a New York Democrat, said Mr Biden’s pick will receive a prompt hearing and will be considered and confirmed “with all deliberate speed”.

Even though Mr Breyer is not expected to retire until the summer, the Senate can move quickly to confirm his successor.

Democrats could quickly hold confirmation hearings in the Judiciary Committee and even hold a full vote in the Senate before he steps down.

The Senate would just refrain from sending the president the paperwork on the final confirmation vote until Mr Breyer steps aside.

The Supreme Court’s term usually ends in late June.

– What does it take to confirm a nominee?

Only a Senate majority.

The Senate is divided 50-50 along party lines, but Democrats control the chamber because Vice President Kamala Harris can break tie votes.

Supreme Court nominations used to need 60 votes for confirmation if any senator objected, but then-senate Majority Leader Mitch McConnell, a Republican from Kentucky, changed Senate rules in 2017 to allow the confirmation of Supreme Court justices with 51 votes.

Vice President Kamala Harris has the casting vote (Terry Person/AP)
Vice President Kamala Harris has the casting vote (Terry Person/AP)

He did so as Democrats threatened to filibuster President Donald Trump’s first nominee, Neil Gorsuch.

– How does the process work?

It is up to the Senate Judiciary Committee to vet the nominee and hold confirmation hearings that typically extend over three days.

Once the committee approves the nomination, it goes to the Senate floor for a final vote.

This process passes through several time-consuming steps, including meetings with individual senators.

Then chief Justice William Rehnquist, second from right, poses with members of the Supreme Court after the investiture of the court’s newest member Stephen Breyer on September 30 1994 (Ken Heinen/AP)
Then chief Justice William Rehnquist, second from right, poses with members of the Supreme Court after the investiture of the court’s newest member Stephen Breyer on September 30 1994 (Ken Heinen/AP)

From the appointment of the first justices in 1789 through its consideration of nominee Amy Coney Barrett in 2020, the Senate has confirmed 120 Supreme Court nominations out of 164 received.

Of the 44 nominations which were not confirmed, 12 were rejected outright in roll-call votes by the Senate, according to the Congressional Research Service.

– Who are the senators to watch?

Supreme Court nominations have become increasingly partisan, so it is likely the vast majority of Republicans will oppose Mr Biden’s nominee.

But with the court’s ideological balance unthreatened by the nomination, Mr Biden’s pick would not change the court’s 6-3 conservative tilt, some bipartisan support is possible.

Moderate Republican Senators Susan Collins of Maine and Lisa Murkowski of Alaska will be closely watched as possible swing votes.

Both support abortion rights, which are increasingly seen as under threat from the court’s conservative majority.

An artiist's view of a Supreme Court hearing (Dana Verkouteren/AP)
An artiist’s view of a Supreme Court hearing (Dana Verkouteren/AP)

A handful of other Republican senators, including some who are retiring, could be possible crossover votes depending on the nominee.

On the Democratic side, all eyes will be on Senators Joe Manchin of West Virginia and Kyrsten Sinema of Arizona.

They were willing to buck Mr Biden and their Democratic colleagues when it came to changing the Senate’s filibuster rules.

Would they be willing to do the same when it comes to the Supreme Court?

– How long will the confirmation process take?

Supreme Court nominations have taken around 70 days to move through the Senate, but there are no set rules for how long the process lasts.

Republicans rushed to get Justice Amy Coney Barrett confirmed before the presidential election.

President Bill Clinton and his then Supreme Court nominee Stephen Breyer leave the White House in Washington, May 16, 1994 (Doug Mills/AP)
President Bill Clinton and his then Supreme Court nominee Stephen Breyer leave the White House in Washington, May 16, 1994 (Doug Mills/AP)

She was confirmed on October 26 2020, exactly a month after Donald Trump nominated her.

– What are advocacy groups advising Democrats?

They are calling for diversity in the pick, not only demographically, but in experience.

“The Supreme Court would be well served by a justice who has served as a public defender or worked to represent legal aid or civil rights organisations,” said Patrick Gaspard, president and chief executive of the Centre for American Progress.

People participate in the March for Life outside the US Supreme Court (Patrick Semansky/AP)
People participate in the March for Life outside the US Supreme Court (Patrick Semansky/AP)

“We urge the president and the Senate to move quickly to nominate and confirm the first black woman Supreme Court justice, drawing from the extraordinary pool of brilliant and qualified women scholars, jurists and attorneys that our country has to offer,” said Ben Jealous, president of People for the American Way.

“President Biden has many highly-qualified candidates to consider, but we hope he takes this opportunity to not only make good on his commitment to increase the court’s racial diversity, but also his vision for professional diversity,” said Brian Fallon, executive director of Demand Justice.

By Press Association

Latest World News

See more Latest World News

Political rivals clashed at a press briefing

Political rivals clash in heated press conference after Texas shooting leaves 19 children dead

The shooter's mother insisted he was not violent

'My son was not violent' insists mother of Texas gunman who killed 21 at school

Texas School Shooting

Gunman warned of Texas school attack on social media

Police fire tear gas to disperse supporters of Pakistan’s key opposition party marching towards Islamabad

Police in Pakistan fire tear gas in bid to stop ex-PM Khan’s banned rally

Uziyah Garcia was among those killed in the shooting

Desperation becomes sorrow following Texas school shooting

Senate majority leader Chuck Schumer

Put yourselves in shoes of these parents for once, senator urges after shooting

The archbishop of San Antonio, Gustavo Garcia-Siller, comforts families

Children killed in Texas shooting were barricaded in classroom with killer

Volodymyr Zelensky

Ukraine says Russia must withdraw to pre-war positions before talks can happen

Kim Jong Un

North Korea ‘fires suspected ICBM and two other missiles into sea’

Relatives hug outside school

Biden demands gun control after 19 children killed in US school shooting

Michelle Bachelet, UN high commissioner for human rights

Chinese leader defends record to UN human rights chief

Gas pipeline

Hungary proposes removing Russian oil embargo from EU summit agenda

Ferdinand Marcos Jr, centre, raises hands

Marcos Jr proclaimed next president of Philippines after landslide election win

A building ruined by shelling

Russian shelling ‘kills six civilians’ in Donbas region

Pakistan police

Roadblocks set up in Pakistani capital to thwart Imran Khan rally

Brian Kemp

Trump suffers stinging losses in Georgia Republican contests