INTRODUCTION

Under Article II of the Constitution, the President has the power, by and with the advice and consent of the Senate, to appoint Judges of the Supreme Court. Since Supreme Court Justices are appointed for life, each nomination to the Supreme Court has a long-lasting influence on the Court and on the day-to-day life of every American.

This guide is designed to explain the nomination process and to suggest resources for further research on the nomination process. For help in researching the Court and individual Justices, consult the Supreme Court Research Guide.

NOMINATION & CONFIRMATION PROCESS

Article II section 2 of the Constitution states that the Presidents "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint ... Judges of the Supreme Court..." U.S. Const. art. 2 § 2, cl. 2.

The process:

The following resources are about the nomination process:

Nomination Hearings of the Justices

• The first published report of Judicial Committee public hearings was that of the nomination hearings of Louis D. Brandeis in 1916. For a complete reprint of documents since 1916, check:
  
  • The Supreme Court of the United States: Hearings and Reports on Successful and Unsuccessful Nominations of Supreme Court Justices by the Senate Judiciary Committee, 1916 - (Roy M. Mersky and J. Myron Jacobstein compiled, 1975- ) [KF8744 .J8]
    
    
• Senate Committee on the Judiciary: Supreme Court Nomination Hearings (1971-forward) (GPO Access)
  Hearing transcripts of the following nominations are made available in their entirety by GPO Access: Elena Kagan, Sonia Sotomayor, Samuel A. Alito, Jr.John G. Roberts, Jr., Stephen G. Breyer, Ruth Bader Ginsburg, Clarence Thomas, David H. Souter, Anthony M. Kennedy, William Hubbs Rehnquist, to be Chief Justice of the United States, Anthony Scalia, Sandra Day O'Connor, John Paul Stevens, and Williams H. Rehnquist and Lewis F. Powell Jr.
  
  

Confirmation Failures

According to Henry B. Hogue (see his CRS Report dated January 1, 2008), there were 158 presidential nominations to the Court between 1789 and 2007, 36 nominations failed to win confirmation from the Senate. The 20th Century saw six confirmation failures, and they were: John J. Parker nominated by President Hoover in 1930, Abe Fortas nominated to be Chief Justice by President Lyndon Johnson in 1968, Homer Thornberry nominated by President Lyndon Johnson in 1968, Clement F. Haynsworth Jr. nominated by President Nixon in 1969, G. Harrold Carswell by President Nixon in 1970, Robert H. Bork by President Reagan in 1987, John G. Roberts, Jr ., nominated by President George W. Bush in 2005 (his nomination to Associate Justice was withdrawn so that President Bush could nominate him to be Chief Justice) and Harriet E. Miers, also nominated by President Bush in 2005.

The following resources suggest the reasons behind failed confirmations as well as charts listing brief information for all the failed confirmations:

RESEARCH GUIDES & RESOURCES

• Christine L.Nemacheck, Strategic Selection Presidential Nomination of Supreme Court Justices from Herbert Hoover through George W. Bush [KF8742 .N46 2007] examines patterns and trends in the selection of Supreme Court Justices.
  
  
• Supreme Court Nominations (United States Senate) provides a chart listing all Supreme Court Nominations, which includes justice replaced, date nominated, vote, and nominating President.
  
  
• The April 2005 issue of eJournal USA (U.S. Department of State) is devoted to the Supreme Court of the United States and includes essays by Chief Justice Rehnquist as well as legal scholars about how the Supreme Court commands the respect of Americans and plays a vital role in the constitutional system. One of the articles, "I Do Solemnly Swear" by Robert S. Barker, offers "a historical perspective on the nomination, confirmation, and appointment of justices to the U.S. Supreme Court."
  
  
• The Supreme Court Historical Society provides a history of the court as well as a research guide on how to research the court.
  
  
• David G. Savage, Guide to the U.S. Supreme Court (5th ed. 2010) (KF8742 .W567 2010)
  
  
• About the Supreme Court (Supreme Court of the United States)
  Provides biographical information about the justices, brief overview of this history and jurisdiction of the Court. It includes a handy "Member of the Supreme Court of the United States" chart listing the following information by justice: name, state appointed from, appointed by President, judicial oath taken and date service terminated.
  
  
• The Supreme Court and the Federal Judiciary (Steven C. Caldwell ed., 2002) [KF8776 .S86 2002] covers nominations not confirmed, the appointment process, qualifications, and recess appointments.
  
  
• The Secondary Sources section of our U.S. Supreme Court Research guide includes more useful books, databases and journal indexes.

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NOMINATION OF ELENA KAGAN TO REPLACE ASSOCIATE JUSTICE JOHN PAUL STEVENS (Confirmed)

On May 10, 2010, President Obama nominated current Solicitor General Elena Kagan to fill the seat previously held by Justice Stevens. The Senate Judiciary Committee held the confirmation hearings the week of June 28. On Thursday, August 5, the Senate confirmed Solicitor General Kagan by a vote of 63-37, and she was sworn in on Saturday, August 7.

Supreme Court Nomination

• Senate Judiciary Commitee
  List of documents submitted with committee questionnaire, letters sent and received in connection with the nomination, and a photo gallery.
• GPO Access
  Access confirmation hearing, questionnaire and responses, and documents submitted for the record.
• C-SPAN video of confirmation hearings, swearing in ceremony, and more
• Full transcripts of the hearings are available in the CQ Transcriptions database on LexisNexis
• Judiciary Committee vote to send nomination to full Senate
• Senate debate (Congressional Record)
• Senate vote

Biographies of Elena Kagan

• Office of the Solicitor General
• Profile from the New York Times
• Background from the White House
• Profile from National Public Radio
• Faculty directory at Harvard Law School
• Video from the White House
• Judgepedia entry
• Wikipedia entry

Solicitor General Confirmation

• Hearing before the Senate Committee on the Judiciary
  • Webcast (Senate Judiciary Committee)
  • Printed Hearing (Government Printing Office)
• Judiciary Committee Questionnaire and Related Materials (at end of document)
• List of letters Received in Connection with the Nomination
• Executive Business Meeting of Judiciary Committee
• Discussions of Kagan Nomination Appearing in The Congressional Record:
  • Discussion of Kagan in context of debate over David Ogden nomination to Deputy Attorney General, including letter to Senator Specter: 155 Cong. Rec. S2995 - S3015 (March 11, 2009)
  • Debate over her nomination and vote: 155 Cong. Rec. S3520 - 3536 (March 19, 2009)

Publications by Elena Kagan

Book Chapters and Reports:

• "Office of the White House Counsel" in Mark Green and Michele Jolin, eds.,Change for America: A Progressive Blueprint for the 44th President (Basic Books 2009)
• "Foreword" in Daniel Hamilton and Alfred Brophy, eds., Transformations in American Legal History: Essays in Honor of Professor Morton J. Horwitz (Harvard 2009)
• Elana Kagan & Cass Sunstein, Remembering 'TM' (1993) (reprint of "For Justice Marshall," 71 Texas L. Rev. 1125 (1993) and "On Marshall's Conception of Equality," 44 Stanford L. Rev. 1267 (1992)).

Articles:

• Elena Kagan, "Remarks Commemorating Celebration 55: The Women's Leadership Summit, Introduction," 32 Harv. J. L. & Gender 233 (2009)
• Conversation between Justice Ruth Bader Ginsburg and Dean Elena Kagan, 32 Harv. J. L. & Gender 237 (2009)
• Elena Kagan, "The Harvard Law School Revisited: Reflecting on Louis D. Brandeis's Harvard Law School Reflections," 11 Green Bag, 475 (2008)
• Elena Kagan, "Clark Byse," 121 Harvard L. Rev. 454 (2007)
• Elena Kagan, "Richard Posner, the Judge," 120 Harvard L. Rev. 1121 (2007)
• Elena Kagan, "David Westfall," 119Harvard L. Rev. 947 (2006)
• Elena Kagan, "Women and the Legal Profession - A Status Report," 61 Record of the Association of the Bar of the City of New York 37 (2006)
• Elena Kagan, "Presidential Administration," 114 Harvard L. Rev. 2245 (2001)
• Elena Kagan & David J. Barron, "Chevron's Nondelegation Doctrine," 2001 The Supreme Court Rev. 201 (2001)
• Elena Kagan, Libel and the First Amendment (Update), Encyclopedia of the American Constitution, Supplement II (2000)
• Elena Kagan, Masson v. New Yorker Magazine, Inc., Encyclopedia of the American Constitution (2000)
  
• Elena Kagan, "When a Speech Code is a Speech Code: the Stanford Policy and the Theory of Incidental Restraints," 29 U.C. Davis L. Rev. 957 (1996)
• Elena Kagan, "Private Speech, Public Purpose: the Role of Governmental Motive in First Amendment Doctrine," 63 The University of Chicago L. Rev. 413 (1996)
• Elena Kagan, "Confirmation Messes, Old and New" (Book Review), 62 University of Chicago L. Rev. 919 (1995)
• Elena Kaga, "Regulation of Hate Speech and Pornography After R.A.V." 60 University of Chicago L. Rev. 873 (1993)
• Elena Kagan, "For Justice Marshall," 71 Texas L. Rev. 1125 (1993)
• Elena Kagan, "A Libel Story: Sullivan Then and Now," 18 Law & Social Inquiry 197 (1993)
• Elena Kagan, "The Changing Faces of First Amendment Neutrality: R.A.V. v St. Paul [112 S. Ct. 2538 (1992)], Rust v Sullivan [111 S. Ct. 1759 (1991)], and the Problem of Content-Based Underinclusion," 1992 The Supreme Court Rev. 29 (1992)
• Note, "Certifying Classes and Subclasses in Title VII Suits," 99 Harvard L. Rev. 619 (1986)

Speeches by Elena Kagan

• Kagan on Cameras in the Courtroom at the Ninth Circuit Judicial Conference (7/23/2009), via YouTube
• Women and the Supreme Court (First Amendment Center 1/28/2010)
• Kagan accepting Dean of the Year Award from Equal Justice Works (11/4/2008) via YouTube

Kagan's Work as Solicitor General

Kagan argued in front of the court six times during the 2009 term. Oral argument transcripts are available from the Law Library of Congress. Briefs filed by the Solicitor General's office from these six cases are available below. See our Supreme Court Research Guide for where to locate other briefs.

• Robertson v. U.S. ex rel. Watson (No. 08-6261)
• Holder v. Humanitarian Law Project (Nos. 08-1498 & 09- 89) (includes Reply Brief)
• U.S. v. Comstock (No. 08-1224) (includes Reply Brief)
• Free Enterprise Fund v. Public Co. Accounting Oversight Bd. (No. 08-861)
• Salazar, Sec'y of Interior v. Bruno (No. 08-472) (includes Reply Brief)
• Citizens United v. Federal Election Commission (No. 08-205) (includes Supplemental Brief and Supplemental Reply Brief)

Harvard Law School Dean

The following materials relate to Kagan's tenure as dean of Harvard Law School from 2003 to 2009.

• Press Releases
• Report of the Task Force on Women Faculty
• Fall 2004 - Fall 2008 columns from Harvard Law Bulletin (Alumni Magazine)

Clinton White House

From 1995 to 1999, Kagan served as Associate White House Counsel to President Clinton. The following material relate to her time in this position.

• Partial-Birth Abortion Bill Memo

Other Collections of Documents about Kagan

Selected Resources on Elena Kagan by the Law Library of Congress

Elena Kagan page by University of Michigan Law Library

Retirement of Justice Stevens

On April 9, Justice Stevens announced his retirement from the Court. View his letter to President Obama here.

Other Sources

The following sources offer in-depth coverage of the Court, including pending nominations.

• SCOTUSblog
• NPR legal affairs stories
• New York Times Supreme Court coverage
• Blogrunner's Supreme Court topic page collects the most recent and influential news stories and blog postings.

JUDGE SONIA SOTOMAYOR: NOMINEE TO REPLACE JUSTICE DAVID H. SOUTER (Confirmed)

On May 26, 2009 President Obama nominated Judge Sonia Sotomayor to replace Justice Souter on the United States Supreme Court. The White House blog has a video of President Obama announcing the nominee and a transcript of the event.

The Senate Judiciary Committee held hearings from July 13 to July 16. On August 6, the Senate confirmed Judge Sotomayor. She was sworn in on August 8th.

Biographies of Judge Sotomayor

• Wikipedia
• Almanac of the Federal Judiciary (Westlaw subscription required. Search "Sotomayor" to receive both her profile and lawyer's comments.)
• Profile from the New York Times
• Background from the White House
• Press Release from Princeton University with links to photos and documents from Judge Sotomayor's days as a student.

Supreme Court Nomination Confirmation Hearings & Senate Action

• Witness lists (PDF version) and webcasts of hearings from the Senate Judiciary Committee
• List of documents submitted with committee questionnaire, letters sent and received in connection with the nomination, and a photo gallery from the Senate Judiciary Committee.
• GPO Access
  Access confirmation hearing, questionnaire and responses, and documents submitted for the record.
• C-SPAN video of confirmation hearings, swearing in ceremony, and more
• Transcripts
  • From the Washington Post
  • Full transcripts are also available from CQ or Federal News Service on Lexis.com. Search the POLTRN or FEDNEW databases.
• The Judiciary Committee reported the Sotomayor nomination to the full Senate on July 28.
  • View the webcast
  • Committee vote
• Congressional Record
  • August 3rd (remarks by Senators about nomination)
  • August 4th (remarks by Senators about nomination)
  • August 5th (remarks by Senators about nomination)
  • August 6th (remarks by Senators and vote)
• Senate Roll Call Vote

Other Confirmation Hearings

• Nomination to the Second Circuit
  • Congressional Hearing: Nominee to be a Judge, U.S. Circuit Court, Second Circuit (1997) (Testimony relating to Judge Sotomayor begins near page 353)
  • Materials related to the nomination released by the William J. Clinton Presidential Library and Museum
• Nomination to the Southern District of New York
  • Nominee to be Judge, U.S. District Court, Southern District of New York ( Testimony relating to Judge Sotomayor begins near page 201; the committee questionnaire detailing her work history begins on page 281).
  • Materials related to the nomination released by the George Bush Presidential Library and Museum

Publications By Judge Sotomayor

• Sonia Sotomayor, Foreword, in The International Judge: An Introduction to the Men and Women Who Decide the World's Cases (Daniel Terris, Cesare P.R. Romano, and Leigh Swigart eds. 2007)
• Sonia Sotomayor, "Another Historical Moment," 53 Federal Lawyer 29 (2006)
• Sonia Sotomayor, "Tribute to John Sexton," 60 New York University Annual Survey of American Law 23 (2004)
• Sonia Sotomayor, Raising the Bar: Latino and Latina Presence in the Judiciary and the Struggle for Representation, 13 Berkeley La Raza L.J. 87 (2002). ( Judge Mario G. Olmos Memorial Lecture )
• Sonia Sotomayor, et. al., La Independencia Judicial: Que Necessitamos Para Conservarla. 60 Revista del. Colegio de P.R. 59 (1999)
• Sharon E. Grubin, et al., "Report of the Second Circuit Task Force on Gender, Racial, and Ethnic Fairness in the Courts," Reprinted in 1997 Annual Survey of American Law 9 (1997)
• Sonia Sotomayor & Nicole A. Gordon, Returning Majesty to the Law and Politics: A Modern Approach, 30 Suffolk U. L. Rev. 35 (1996)
• Student Note, Statehood and the Equal Footing Doctrine: The Case for Puerto Rican Seabed Rights. 88 Yale L.J. 825 (1979)

Opinions and Court Documents

Westlaw's SOTOMAYOR database includes opinions, law reviews, and other legal documents written by or about the nominee. It also includes biographical information by West's Profiler and the Almanac of the Federal Judiciary as well as congressional documents.

Selected opinions from Judge Sotomayor, as compiled by the New York Times

Materials related to Ricci v. DeStefano (New Haven firefighters case)

• U.S. Supreme Court opinion
• Supreme Court Records & Briefs for Ricci v. DeStefano
• Sotomayor Tape Reveals Views on Ricci v. DeStefano Discrimination Case, May 29, 2009 Wall Street Journal blog with MP3 files of hearing

Analysis of Judge Sotomayor's opinions by the Congressional Research Service (CRS)

• Judge Sonia Sotomayor: Analysis of Selected Opinions (June 19, 2009)

Analysis of Judge Sotomayor's opinions by the SCOTUSBLOG:

• Judge Sotomayor's Appellate Opinions in Civil Cases
• Judge Sotomayor's Civil Opinions - Part II
• Judge Sotomayor's Civil Opinions - Part III
• Judge Sotomayor's Civil Opinions - Part IV

 

Other Resources

Law Library of Congress Guide
Compilation of News and Commentary from National Law Journal
American Bar Association Nominee Ratings

JUDGE SAMUEL A. ALITO: NOMINEE TO REPLACE JUSTICE SANDRA DAY O'CONNOR (Confirmed)

JUDGE JOHN G. ROBERTS - NOMINEE TO REPLACE CHIEF JUSTICE WILLIAM H. REHNQUIST (CONFIRMED)

• Senate confirmed Roberts as 17th Chief Justice (September 29, 2005) - U.S. Senate Roll Call Vote on the Nomination (Confirmation John G. Roberts, Jr., of Maryland, to be Chief Justice of the United States), 109th Congress - 1st Session
  
• John G. Roberts Dossier (Washington Post) includes John Roberts' biography as well as his response to a Senate Judiciary Committee questionnaire in preparation for his September confirmation hearings (Part I: Pages 1-25; Part II: Pages 26-50; Part III: Pages 51-76, and Financial Disclosure Report). The Dossier also includes links to selected memos written by Roberts during his tenure as an assistant White House counsel and a special assistant to then-Attorney General William French Smith during the Reagan administration; and selected oral arguments Roberts made before the Supreme Court when representing private clients.
  
• Records relating to John Roberts have been released at both the Reagan Library in California and the National Archives in Washington. They are also available at the following Web sites:
  • Records Pertaining to John G. Roberts, Jr.: Record Group 60: Department of Justice (The U.S. National Archives & Records Administration)
  • Roberts Opening 08/18/2005 (Ronald Reagan Presidential Library)
    
• "Hearing Before the Committee on the Judiciary, United States Senate, January 29, 2003" and "Hearings before the Committee on the Judiciary, United States Senate, April 20, May 7, May 22, June 25, and July 9, 2003" in which Judge Roberts's January 29, 2003 appearance and his April 30, 2003 appearance for his federal court confirmation hearings and written answers to questions can be found.
  
• Background Information on SCOTUS Nominee John G. Robert (Law Librarian Blog: A Member of the Law Professor Blogs Network)
  Includes links to commentaries and analyses on the Law Professor Blogs Network
  
• Supreme Court Nominations - John G. Roberts: Selected Resources of the Law Library of Congress lists articles/books and opinions written by John G. Roberts, cases argued by Roberts, Roberts' federal court nomination hearings, other secondary sources on Supreme Court nominations in general, and useful Web resources.
  
• "Memorandum of Understanding on Judicial Nominations" is a deal spearheaded by Senator McCain and signed by seven Republican Senators and seven Democratic Senators whereby the Democrats promised they would filibuster future judicial nominations only in "extraordinary circumstances" and the Republicans promised not to invoke the "nuclear option" for the remainder of the 109th Congress.
  

HARRIET E. MIERS - NOMINEE TO REPLACE JUSTICE SANDRA DAY O'CONNOR (WITHDRAWN)

• Harriet Miers Withdraws Nomination (October 27, 2005, Washington Post)
  
• Miers' Withdrawal Letter to President Bush (dated October 27, 2005) (New York Times)
  President Bush's Statement
  
• Senate Judiciary Committee's Questionnaire (New York Times)
• Financial Disclosure Report (New York Times)
  
• Financial Statement (New York Times)
  
• President's Opinion column from the Texas Bar Journal (June 1992 - May 1993) available from HeinOnline
  
• Harriett E. Miers Profile (Washington Post) - includes Miers' public financial disclosure reports from her tenure in the White House (PDFs)
  
• 1989 Questionnaire From Texans United for Life (New York Times)
  

Updated 11/2011 (MS)