What to know about the Senate confirmation process for Supreme Court nominees

Can the vice president break a tie? Can a nominee be filibustered?

March 21, 2022, 5:09 AM

As Judge Ketanji Brown Jackson -- President Joe Biden's pick for the Supreme Court -- is set to face her Senate confirmation hearings beginning Monday, here are some key takeaways about the current process.

Committee Republicans alone can’t stop Biden's nominee

After the Senate Judiciary Committee concludes its hearings this week, Republicans can try to slow down Jackson's nomination by boycotting a committee vote before her nomination heads to the full Senate, but Democrats could try to go forward, anyway.

Republicans did that when Democrats attempted to boycott a committee vote on Amy Coney Barrett.

At that time, Republicans controlled a majority of seats on the panel, so the chairman at the time -- GOP Sen. Lindsey Graham of South Carolina -- went ahead without minority Democrats. They, instead, left pictures in their places of Americans who, they said, would be negatively affected should Barrett support striking down the Affordable Care Act.

Senate Judiciary Chairman Dick Durbin, D-Ill., says he wants to run a fair process, so he is doing everything he can to get GOP buy-in moving forward. The goal is for Republicans to support the process, regardless of whether they support the nominee.

If Republicans were to boycott the vote, Durbin would have a decision to make: attempt to change the rules, or have her nomination taken directly to the floor by Majority Leader Chuck Schumer.

Should every Republican in committee vote against Jackson, thereby deadlocking the panel, Schumer would have to move to discharge her nomination. That would take a bit more time, potentially endangering Democrats’ goal of having Jackson confirmed to the high court before April 8, when the Senate begins a two-week recess in observance of the Easter holiday.

PHOTO: President Donald Trump announces his Supreme Court nominee, Judge Amy Coney Barrett, in the Rose Garden of the White House, Sept. 26, 2020.
President Donald Trump announces his Supreme Court nominee, Judge Amy Coney Barrett, in the Rose Garden of the White House, Sept. 26, 2020.
Olivier Douliery/AFP via Getty Images

Filibuster of full Senate vote not allowed

Filibustering a full Senate vote on Supreme Court nomination is no longer allowed. Republicans lowered the vote threshold to a simple majority for Supreme Court confirmations in 2017 when then-Majority Leader Mitch McConnell, R-Ky., nuked the filibuster rule to get Justice Neil Gorsuch confirmed. Democrats made this move in 2013 for all lower-court nominations.

Hearings and confirmation can happen quickly

PHOTO: A group photo of the Justices at the Supreme Court in Washington on April 23, 2021.
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 pose for a group photo of the Justices at the Supreme Court in Washington on April 23, 2021.
Erin Schaff/POOL/AFP via Getty Images

Democrats are eyeing a swift confirmation after what happened with Amy Coney Barrett, who out of the nine justices currently serving on the court waited the fewest days (27), according to Congressional Research Service. Justice Stephen Breyer said he will retire at the end of the current term, but a confirmation vote can take place while a retiring justice is still on the bench. That’s what happened when Justice Sandra Day O’Connor was being replaced with Samuel Alito.

PHOTO: Supreme Court Justice Sandra Day O'Connor, left, and Supreme Court nominee Samuel Alito are seen here in these 2005 file photos.
Supreme Court Justice Sandra Day O'Connor, left, and Supreme Court nominee Samuel Alito are seen here in these 2005 file photos.
AP, FILE

The Congressional Research Service found the average amount of time for a nomination to be voted on in the Senate is 68.2 days, just over two months. The median is 69 days. Clarence Thomas waited the longest time -- 99 days.

PHOTO: Supreme Court nominee Clarence Thomas raises his right hand as he is sworn in, Sept. 10, 1991, during confirmation hearings before the US Senate Judiciary Committee, in Washington D.C.
Supreme Court nominee Clarence Thomas raises his right hand as he is sworn in, Sept. 10, 1991, during confirmation hearings before the US Senate Judiciary Committee, in Washington D.C.
David Ake/AFP via Getty Images

The vice president can break a Senate tie

PHOTO: Vice President Kamala Harris leaves the Senate chamber of the Capitol in Washington, D.C., Aug. 10, 2021.
Vice President Kamala Harris leaves the Senate chamber of the Capitol in Washington, D.C., Aug. 10, 2021.
Bloomberg via Getty Images

Although Harvard Law School Professor Emeritus Laurence Tribe has said a vice president, in the role as president of the Senate, cannot cast a tie-breaking vote on a Supreme Court nominee, he appears to be virtually alone in that opinion.

Both Democrats and Republicans, including a former GOP Senate floor manager, have told ABC News -- in no uncertain terms -- that Vice President Kamala Harris can break any potential tie -- and numerous other legal experts agree.

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