Robert Bork is one of twelve men to be formally nominated as a Supreme Court justice, only to be rejected by the Senate. Bork was rejected in 1987 after President Ronald Reagan nominated him. Hulton Archive/Getty Images.

      APPOINTMENT, CONFIRMATION, AND QUALIFICATIONS

      How are federal judges appointed to the federal bench?

      Article II, Section 2, provides that the president of the United States shall have the power to nominate “Judges of the Supreme Court.” That same part of the Constitution also provides that the president shall have the power to nominate “all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law.” This means that the president has the power to nominate all federal judges.

      The Constitution also provides that the U.S. Senate shall provide “Advice and Consent.” This means that the president’s judicial nominees must be confirmed by the Senate.

      What is the confirmation process?

      After the president nominates a candidate to the U.S. Supreme Court, the U.S. Senate either confirms or denies the nominee. The Senate Judiciary Committee gathers extensive information about the nominee, holds hearings, and eventually votes on whether to move the candidate on for a full Senate vote. The confirmation process can be quite difficult and lengthy depending on how controversial the candidate is deemed to be by Congress, their constituents, and interested public interest groups. It only takes a majority vote for a candidate to win confirmation. However, twenty-six nominations by presidents have not been successful. The Senate rejected twelve appointments to the Court. Those twelve, and the Senate’s rejection vote tally, were:

       Prior Judicial Experience of the Current Justices

      Chief Justice John Roberts Jr.: U.S. Court of Appeals for the District of Columbia, 2003–5

      Justice Samuel Alito Jr.: U.S. Court of Appeals for the Third Circuit, 1990–2005

      Justice Stephen Breyer: U.S. Court of Appeals for the First Circuit, 1980–94 Justice Ruth Bader Ginsburg: U.S. Court of Appeals for the D.C. Circuit, 1980–93

      Justice Anthony Kennedy: U.S. Court of Appeals for the Ninth Circuit, 1975–87 Justice Antonin Scalia: U.S. Court of Appeals for the D.C. Circuit, 1982–86 Justice David Souter: Superior Court of New Hampshire, 1978–83; Supreme Court of New Hampshire, 1983–90; U.S. Court of Appeals for the First Circuit, 1990

      Justice John Paul Stevens: U.S. Court of Appeals for the Seventh Circuit, 1970–75

      Justice Clarence Thomas: U.S. Court of Appeals for the D.C. Circuit, 1990–91

      John Rutledge (1795): rejected 14–10 (as chief justice)

      Alexander Wolcott (1811): rejected 24–9

      John C. Spencer (1843): rejected 26–21

      George W. Woodward (1845): rejected 29–20

      Jeremiah Black (1860): rejected 26–25

      Ebenezer R. Hoar (1870): rejected 33–24

      William B. Hornblower (1893): rejected 30–24

      Wheeler Peckham (1894): rejected 41–32

      John J. Parker (1930): rejected 41–39

      Clement F. Haynesworth Jr. (1969): rejected 55–45

      G. Harrold Carswell (1970): rejected 51–45

      Robert Bork (1987): rejected 58–42

      What qualifications must a federal judge possess?

      The Constitution provides no criteria or qualifications for federal judges. Technically, a non-lawyer with no legal experience could be appointed to the U.S. Supreme Court.

       CourtSpeak: Federal Judgeship Rating Systems

      ABA Standing Committee on Federal Judiciary: “To merit a rating of ‘Well Qualified,’ the nominee must be at the top of the legal profession in his or her legal community; have outstanding legal ability, breadth of experience, and the highest reputation for integrity; and either demonstrate or exhibit the capacity for judicial temperament. The rating of ‘Qualified’ means that the nominee meets the Committee’s very high standards with respect to integrity, professional competence and judicial temperament and that the Committee believes that the nominee will be able to perform satisfactorily all of the duties and responsibilities required by the high office of a federal judge.

      “When a nominee is found ‘Not Qualified,’ the Committee, based on its investigation, has determined that the nominee does not meet the Committee’s standards with regard to professional competence, judicial temperament or integrity.”

      Congress and the Department of Justice carefully review nominees to determine if they have the requisite degree of professional accomplishment and experience necessary for the lofty position. Most of the judges have a record of outstanding professional achievement, key political connections, and a history of public service in some capacity. Many appellate judges have had some prior judicial experience. For example, all nine justices of the U.S. Supreme Court previously had some form of judicial experience before they served on the U.S. Supreme Court.

      What is the role of the American Bar Association in the Supreme Court nomination/confirmation process?

      With more than 400,000 members, the American Bar Association is the largest professional trade association of lawyers. It has played a significant role in the U.S. Supreme Court (and lower federal courts) confirmation process. The ABA participates through its 15-member Standing Committee on Federal Judiciary.

      From 1952 to 2001, the presidents of the United States would consult with the Standing Committee regarding proposed nominees. For example, President Gerald Ford sought the committee’s views on numerous candidates before finally nominating Justice John Paul Stevens in 1976. Since 1948, the Committee has provided the U.S. Senate Judiciary Committee with evaluations of every federal judicial nominee.

      In March 2001, President George W. Bush took a different stance. Alberto Gonzales, counsel to the president, wrote a letter to the ABA, saying that the White House would no longer use the Standing Committee as a pre-screening mechanism before selecting judicial nominees. Gonzales wrote in part:

       Size of the Court