Every Step in Confirming a Federal Judge, from Vacancy to Oath

Who has the final say over who sits on a federal bench for the next thirty years? The president, says nearly everybody, and nearly everybody is wrong. The Constitution deliberately splits the job in two and then scatters a dozen choke points along the road. A judge is not made in a moment. A judge is made in a sequence, and anybody who wants to know why a nomination moves fast one year and dies in a drawer the next needs to know that sequence cold.

So let's walk it. I will keep the steps plain and numbered, because that is how a procedure ought to be explained, and I will tell you at each stage who holds the pen and where the trouble usually starts. The rule behind all of it is one sentence in Article II, Section 2 of the Constitution. The president "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint" the judges of the Supreme Court and all other officers of the United States whose appointments are not otherwise provided for. Nominate is the president's job. Advice and consent is the Senate's job. Everything below is the machinery built on those two verbs.

Step 1. The vacancy

Nothing happens until there is a seat to fill. A vacancy opens in a handful of ways. A judge dies. A judge resigns. A judge is promoted to a higher court. A judge is removed by impeachment, which has happened only a few times in American history and never to a Supreme Court justice, though Samuel Chase was impeached by the House in 1804 and acquitted by the Senate in 1805. Or Congress creates a brand new judgeship by statute.

The most common source of planned vacancies is a judge taking senior status. Article III says federal judges "hold their Offices during good Behaviour," which in practice means for life. But a judge who meets an age-and-service formula may step back to a lighter caseload and open the active seat for a successor while keeping the salary. The formula is often called the Rule of 80: a judge at least sixty-five years old whose age plus years of service on the bench adds up to eighty. Worked example: a judge who is sixty-five needs fifteen years on the bench, because 65 + 15 = 80. A judge who is seventy needs ten, because 70 + 10 = 80.

Why it matters: Judges time their departures. A judge who prefers a successor chosen by a president of a certain party will often announce senior status while that party holds the White House and the Senate. That is not a scandal. It is how the system works, and it is why lame-duck periods and election years draw so much attention. We cover that in Judges in a Divided Washington, and the Lame-Duck Window That Closes January 3.

Step 2. The president picks

The Constitution lets the president nominate anyone. There is no requirement that a judge be a lawyer, let alone a judge, a certain age, or a citizen of a given state. In practice the president works from a short list assembled by White House counsel, the Justice Department, and outside advisers, and for lower-court seats the president usually defers to the senators of the state, especially senators of his own party. For Supreme Court vacancies, the president and a small group of advisers interview finalists personally.

Notice what the president is doing here. He is making a choice that will outlast his presidency by decades. That is the reason the choice is the single most durable thing a president does.

Where it can stall: A president who does not have a nominee ready will leave a seat open for months. A president who picks someone unconfirmable will see the nomination fail, or be withdrawn.

Step 3. Paperwork, FBI check and the committee questionnaire

Once a name is announced, the nominee completes a detailed questionnaire for the Senate Judiciary Committee. It asks for every job, every publication, every speech that can be found, cases the nominee has handled, financial disclosures, and more. The FBI conducts a background investigation of the nominee's history, which is delivered to the committee. The nominee also begins the round of private visits with senators called courtesy calls.

Take this step seriously, because most of the confirmation fights you will ever read about begin in the paper trail. A speech from twenty years ago, a brief in an old case, an omitted detail on a form: any of them can reshape a hearing.

Step 4. The blue slip tradition

For district court judges, and by long tradition for U.S. attorneys and U.S. marshals, the Judiciary Committee sends a blue-colored form to the two senators from the nominee's home state. Each senator returns it with an approval or an objection. For many years, a negative or unreturned blue slip meant the nomination would not get a hearing. That gave a single home-state senator, even one in the minority party, a veto over district judges from his or her state.

The tradition has been honored differently by different committee chairmen. In 2017, the Judiciary Committee's chairman at the time stopped treating a missing blue slip as a veto for nominees to the courts of appeals, which cover several states, while keeping it for district judges. Later chairmen have made their own calls, and you should check the committee's current published policy rather than assume. The blue slip is a custom, not a rule written in the Constitution or in a Senate standing rule.

Why conservatives care: It is a reminder that the Senate is a body of states. A senator from a small state is not just one of a hundred votes; he or she is a gatekeeper for a very large share of the judges who will hear cases in that state.

Step 5. The hearing

The committee holds a hearing. For the Supreme Court, a hearing runs several days, with opening statements by every committee member, testimony by the nominee, and testimony from outside witnesses such as bar association officials, scholars, and people for and against. For lower courts, the committee often hears several nominees at the same session on a single day.

At the hearing, senators question the nominee. By custom, a nominee does not promise how he or she would rule in a future case. Expect questions about judicial philosophy, about prior decisions and writings, and about how the nominee would approach long-settled precedent. Read the transcripts yourself. The best way to see how a future judge thinks is to watch which questions the nominee answers directly, which ones get a polite refusal, and which ones draw a careful distinction.

Step 6. The committee vote

After the hearing, the nomination is listed on the committee's executive business meeting agenda. By committee custom, the first time it appears, any member may ask that it be held over for a week. That gives the minority a weapon of delay. After that, the committee votes by simple majority. The committee can report the nomination favorably, unfavorably, or without recommendation. Clarence Thomas's nomination in 1991 went to the full Senate without a recommendation after the committee tied seven to seven.

If the committee does not act, the nomination sits. There is a Senate procedure to discharge a nomination from committee, but it is rarely used, and the majority leader and the committee chairman control the real calendar.

Where it can stall: This is the most important choke point for a president whose party does not run the Senate. The committee chairman decides whether there is a hearing at all. A nomination with no hearing is a nomination that does not move. That is exactly what happened to Merrick Garland in 2016, which we go through in From 98 to 0 to Party Lines, a Timeline of Supreme Court Confirmations.

Step 7. Floor time and cloture

Now the nomination goes onto the Executive Calendar. The majority leader controls the order of business on the Senate floor, and the leader decides whether and when a nomination comes up. Floor time is the scarcest resource in the building, and a leader who prioritizes judges is a leader who delays other business.

Once the nomination is before the Senate, a senator can try to talk it to death. To end debate, the Senate votes on cloture under Rule XXII. Here is the history in four short entries:

1. For most of the twentieth century, cloture required two-thirds of senators voting. In 1975 the threshold became three-fifths of the full Senate, which is sixty votes of a hundred.
2. In 2013, the then-majority party, Democrats, changed the Senate's precedent so that cloture on executive branch nominees and on lower-court judges takes only a simple majority. Supreme Court nominees were left out of the change.
3. In April 2017, Republicans extended the simple-majority cloture rule to Supreme Court nominations during the Gorsuch nomination.
4. In April 2019, Republicans cut the post-cloture debate time for most executive nominees and for district judges to two hours, while leaving the longer period of up to thirty hours for appeals court judges, Supreme Court justices and Cabinet-level posts.

These were not amendments to the written rules. They were set by majority votes that overruled the Senate's presiding officer, which is why they are called the "nuclear option." You can read the argument over them and what a minority party can still do in What the Minority Party in Congress Can Still Do When It Doesn't Run the Floor and Why the Filibuster Is the Best Friend a Minority Party Ever Had.

Why it matters: Before the changes, a determined minority of forty-one senators could block a nominee. After them, a majority can confirm over any objection. Whatever you think of those changes, they mean the party that controls the Senate controls the outcome.

Step 8. The confirmation vote

When debate ends, the Senate votes on confirmation. A simple majority of those voting is enough. If the vote is tied, the Vice President can cast the tie-breaking vote under Article I, Section 3. The Constitution requires no supermajority for judicial nominees. Treaties need two-thirds. Judges do not.

Two things to keep in mind. First, there is no deadline. A nomination can take a few weeks, as happened for Justice Barrett in 2020, or the full length of a Congress. Second, a nomination that the Senate does not act on by the end of a Congress is returned to the president at the end of the session or when the Senate adjourns for more than thirty days, unless the Senate agrees to let it stay. A new Congress means a new nomination.

Step 9. The commission and the oaths

After confirmation, the president signs the judge's commission, a formal document, and the Senate notifies the White House of its action. The judge then takes two oaths. One is the oath that every federal officer takes to support and defend the Constitution, set by statute at 5 U.S.C. 3331. The other is the judicial oath in 28 U.S.C. 453, which pledges to administer justice without respect to persons and to do equal right to the poor and the rich. Judges often take the oaths in a ceremony, and sometimes in two sessions.

From that day forward the new judge has life tenure, subject only to impeachment and conviction. Congress cannot reduce a federal judge's salary while in office, according to Article III.

The shortcut that was shut: recess appointments

You may have heard that a president can bypass the Senate. The Constitution does give the president power to fill vacancies that happen "during the Recess of the Senate." The Supreme Court limited that power in NLRB v. Noel Canning in 2014, holding that a recess shorter than ten days is presumptively too short to count, and that the Senate decides for itself when it is in session. So the quick-fix is closed in practice. A judge who is installed that way would also serve only until the end of the next session, so the arrangement has not been a real route to a life-tenured bench in modern times.

A quick map of the choke points

The bottom line

• Confirmation is nine steps, and the real power sits with whoever controls the Senate Judiciary Committee and the Senate floor. If you want to influence judges, you influence Senate races.
• The Constitution requires only a simple majority for judges. Every supermajority hurdle you hear about is a Senate custom or precedent, and the Senate has changed them by majority vote in 2013, 2017 and 2019.
• Read the questionnaire and the hearing transcript for any nominee who matters to you. Both are public, and both tell you more than a cable segment will.
• Call your two senators when a nomination is pending. Phone calls to home-state offices matter most on blue slip nominees.
• Check the Senate Judiciary Committee's website for the current schedule and policy on blue slips rather than relying on what you heard.