Stephen Breyer retirement: How does a Supreme Court justice get confirmed?
ByDebbie Lord, Cox Media Group National Content Desk
ByDebbie Lord, Cox Media Group National Content Desk
Supreme Court Justice Stephen Breyer is expected to announced Thursday that he will be retiring at the end of the court’s current term this summer, according to media reports.
According to the U.S. Constitution, President Joe Biden has the duty to nominate a person to replace Breyer. That person will then go through a process that involves investigations into his or her past and hearings before the Senate Committee on the Judiciary before a vote is held by the full Senate to confirm the appointment.
Here’s a look in more detail at the process the Supreme Court nominee will go through:
1. The president selects a nominee: On the death, retirement or impeachment of a Supreme Court justice, the president has a constitutional duty to nominate someone to take his or her place. Article Two of the U.S. Constitution — the “Appointments Clause” — gives the executive branch the authority to appoint court justices.
The clause reads in part: “he shall nominate, and by and with the advice and consent of the Senate, shall appoint ... judges of the supreme court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law.”
It’s not an easy task. The president generally looks for a person with substantial judicial experience; one who shares his ideology — almost always a member of the same political party — and one who actually has a chance to be confirmed by the Senate.
Before the nominee is announced, he or she is investigated by the FBI and other agencies.
2. The confirmation process: Who can serve on the high court? Anyone, really, since the Constitution does not set qualifications for a Supreme Court justice. The only hurdle the Constitution requires is that the nominee must be confirmed by the Senate in order to take a seat on the court.
Once that nominee is put forth by the president, the nomination will go before the Senate’s Judiciary Committee. The committee currently comprises 11 members of the majority party, the Democrats, and 11 members of the minority party, the Republicans. That ratio of members is based on the ratio of majority to minority members of the Senate, so for this congressional term, there are an equal number of members on both sides.
After a nominee is called to be questioned by the committee, he or she will meet committee members for personal interviews and answer any questions they may have about his or her thinking on certain issues that could come before the court.
The Judiciary Committee will hold hearings to question the nominee, his or her supporters, and his or her opponents.
While the nominee attends the hearings, which can last for days, the Constitution does not require a nominee to testify.
Likewise, the committee’s practice of personally interviewing nominees isn’t a historical one, either. The committee only began to do that in the 1940s.
After the hearings, a vote is taken in the committee. The nominee will receive either a favorable recommendation, a negative recommendation or the nomination will be reported to the full Senate with no recommendation.
3. The floor vote: When the nomination makes it out of the committee and to the Senate floor, it is at the mercy of the majority party, since that party sets the agenda for Senate action.
It is the Senate majority leader’s job to determine when the nomination sees the light of day on the full Senate floor. There is no time frame for him to act.
If the nomination gets out of the committee, it comes to a vote by the full Senate. It takes a simple majority vote — 51 of the 100 Senate votes — to either “advise and consent to the nomination” or reject the nominee.
4. Can Republicans do anything to slow it down or stop it?
No, not without help from some Democrats. They can’t, thanks to a vote that happened in 2013.
That year, the Democratic majority in the Senate changed the rules so that lower court and cabinet nominees could be confirmed with a simple majority (if all members are present, 51 of 100 votes), rather than by a “super majority” vote — or one that requires 60 votes.
What was left in place after that rule change was that a filibuster, a way to slow down a vote on an issue, could be used for Supreme Court nominees as long as 60 senators voted for it.
That means that if 51 senators say the debate on a candidate is over, then the nomination vote can no longer be delayed.
5. The numbers for a confirmation vote this year.
Republicans and Democrats each have 50 votes in the Senate. Assuming all the Democrats vote to confirm a Biden nominee, then Vice President Kamala Harris would step in to cast the tie-breaking vote for confirmation.
What is the likelihood of a Democrat defecting from the party and voting no? It may be better than you think, given recent history and the fact that it is a midterm election year.
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Photos: Stephen Breyer through the years Here are some memorable photos of Supreme Court Associate Justice Stephen Breyer through the years. (Chip Somodevilla/Getty Images)
Photos: Stephen Breyer through the years 1994: U.S. President Bill Clinton and his Supreme Court nominee Stephen Breyer walk to the Rose Garden of the White House in Washington on Monday, May 16, 1994, where the president officially introduced Breyer to the nation. (AP Photo/Doug Mills)
Photos: Stephen Breyer through the years 2003: U.S. Supreme Court Justices (from left, seated) Chief Justice William H. Rehnquist, Associate Justice Sandra Day O'Connor, Associate Justice Anthony M. Kennedy, (from left, standing) Associate Justice Clarence Thomas and Stephen G. Breyer pose for pictures at the U.S. Supreme Court on December 5, 2003, in Washington, D.C. (Mark Wilson/Getty Images)
Photos: Stephen Breyer through the years 2005: Supreme Court Justice Stephen Breyer (right) and Henrietta Fore, director of the U.S. Mint, participate in a ceremony to unveil the Chief Justice John Marshall Silver Dollar on May 4, 2005, at the Supreme Court Upper Great Hall in Washington, D.C. (Chip Somodevilla/Getty Images)
Photos: Stephen Breyer through the years 2009: Former U.S. Supreme Court Justice Sandra Day O'Connor (left) talks with Justice Stephen Breyer during the Sandra Day O'Connor Project on the State of the Judiciary's forum "Striking the Balance: Fair and Independent Courts in a New Era" at Georgetown University Law Center May 20, 2009, in Washington, D.C. (Chip Somodevilla/Getty Images)
Photos: Stephen Breyer through the years 2010: U.S. Supreme Court justices Ruth Bader Ginsburg (left), Stephen Breyer, Vice President Joseph Biden and first lady Michelle Obama smile as President Barack Obama speaks during a reception in honor of Jewish American Heritage Month on May 27, 2010, in the East Room of the White House in Washington, D.C. (Alex Wong/Getty Images)
Photos: Stephen Breyer through the years 2011: Supreme Court Justices Stephen Breyer testifies during a hearing before the Senate Judiciary Committee on October 5, 2011, on Capitol Hill in Washington, D.C. (Alex Wong/Getty Images)
Photos: Stephen Breyer through the years 2012: U.S. Supreme Court Associate Justice Stephen Breyer arrives for a lunch hosted in honor of Prime Minister David Cameron at the State Department on March 14, 2012, in Washington, D.C. (Brendan Hoffman/Getty Images)
Photos: Stephen Breyer through the years 2013: Supreme Court Justice Stephen Breyer (left) speaks with British Ambassador Sir Peter Westmacott, England's Prince Harry and Lady Wesmacott before a reception and dinner at the British Ambassador's residence on May 9, 2013, in Washington, D.C. (Alex Brandon-Pool/Getty Images)
Photos: Stephen Breyer through the years 2015: Kathleen Kennedy Townsend, Patrick Kennedy, Supreme Court Justice Stephen Breyer and Dr. Joanna Breyer attend the Edward M. Kennedy Institute for the U.S. Senate Opening Night Gala and Dedication on March 29, 2015, in Boston. (Paul Marotta/Getty Images for Edward M. Kennedy Institute)
Photos: Stephen Breyer through the years 2016: At center front, Supreme Court Chief Justice John Roberts and wife Jane Sullivan Roberts, trailed by Justice Stephen Breyer and wife Joanna Hare and in back row, Justice Clarence Thomas and wife Virginia Thomas, walk down the steps of the Basilica of the National Shrine of the Immaculate Conception at the end of the funeral for late Supreme Court Justice Antonin Scalia on February 20, 2016, in Washington, D.C. (Drew Angerer/Getty Images)
Photos: Stephen Breyer through the years 2017: Front row from left, U.S. Supreme Court Associate Justice Ruth Bader Ginsburg, Associate Justice Anthony M. Kennedy, Chief Justice John G. Roberts, Associate Justice Clarence Thomas and Associate Justice Stephen Breyer, back row from left, Associate Justice Elena Kagan, Associate Justice Samuel Alito Jr., Associate Justice Sonia Sotomayor and Associate Justice Neil Gorsuch pose for a group portrait in the East Conference Room of the Supreme Court on June 1, 2017, in Washington, D.C. (Alex Wong/Getty Images)
Photos: Stephen Breyer through the years 2018: United States Supreme Court Associate Justice Stephen Breyer poses for the court's official portrait in the East Conference Room at the Supreme Court building November 30, 2018, in Washington, D.C. (Chip Somodevilla/Getty Images)
Photos: Stephen Breyer through the years 2020: U.S. Supreme Court Justice Neil Gorsuch (left) and Justice Stephen Breyer stand during a private ceremony for Associate Justice Ruth Bader Ginsburg at the U.S. Supreme Court on September 23, 2020, in Washington, D.C. (Andrew Harnik-Pool/Getty Images)
Photos: Stephen Breyer through the years 2021: Members of the Supreme Court pose for a group photo at the Supreme Court in Washington, D.C., on April 23, 2021. Seated from left: Associate Justice Samuel Alito, Associate Justice Clarence Thomas, Chief Justice John Roberts, Associate Justice Stephen Breyer and Associate Justice Sonia Sotomayor. Standing from left: Associate Justice Brett Kavanaugh, Associate Justice Elena Kagan, Associate Justice Neil Gorsuch and Associate Justice Amy Coney Barrett. (Erin Schaff-Pool/Getty Images)
