People For the American Way

Crash Course: How Does The Supreme Court Nomination Process Work?

News and Analysis

Trump nominated Brett Kavanaugh for the Supreme Court of the United States. Kavanaugh has a record that shows he will bend over backwards to push his extremist agenda and won’t come to the bench with an open mind.

The next few weeks will be critical in the fight to stop Kavanaugh from taking a seat on the Supreme Court. Use this video and blog to understand what’s going to happen. Then settle in to call, tweet, email and text your senators and show up at rallies near you. Thank you to Lena Zwrarensteyn of The Leadership Conference on Civil and Human Rights, Marge Baker of People For the American Way, Kate Ryan of NARAL, Shaneice Simmons of Rock the Vote, and Cici Battle of Young People For (YP4) Action, a program of PFAW, and more for the crash course!

Crash Course On SCOTUS

LIVE: You can join the fight to stop Brett Kavanaugh today!Learn more with a panel of experts from People For the American Way, NARAL Pro-Choice America, Voto Latino, The Leadership Conference on Civil and Human Rights, Rock the Vote, and Young People For (YP4).

Posted by People For the American Way on Friday, August 24, 2018

Why are people sounding the alarm on Brett Kavanaugh?

There is a clear indication that Trump is an unindicted co-conspirator in a plot to illegally influence the 2016 election and hand him the presidency. That is significant and it is part of a pattern from his campaign and this administration. This Supreme Court fight is a culmination of what’s at risk for our entire democracy.

President Trump selected Kavanaugh from a list of pre-vetted candidates who he promised would overturn Roe v. Wade and dismantle the Affordable Care Act, which provides health insurance coverage to millions of Americans. What’s at stake could not be greater. Kavanaugh is an out-of-touch political operative who is much more likely to rule for the wealthy and powerful than to rule for all of us.

What is the hearings process like for a Supreme Court nominee?

There is nothing normal about the way Trump, Chairman Grassley, and Majority Leader McConnell are running this nomination process. First, Brett Kavanaugh was handpicked by outside groups with a political agenda to dismantle the Affordable Care Act and gut Roe v. Wade. Second, the White House is colluding with Senate Republicans to hide Kavanaugh’s record. Senator Leahy, the most senior member on the on the Senate Judiciary Committee, has said it is the most incomplete, most partisan, and least transparent process he has ever seen for a Supreme Court nominee. Lastly, it is not normal that a president who was implicated by his own lawyer in criminal activity is now trying to ram through a nominee whose record shows that he believes presidents should be above the law and not subject to criminal investigation or indictment.

We may not know exactly what is going to happen, but typically what happens in a Supreme Court nomination hearing is that there are four days of consideration. The first day is devoted to opening statements from all the members of the Senate Judiciary Committee. The 21 Republican and Democratic members on the committee will each have about 10 minutes to give their opening statements. Most Republicans on the committee have openly announced their support for Kavanaugh, so listen for them to say that he is smart, kind and will come to cases with an open mind. Democrats, on the other hand, will raise serious concerns about whether Kavanaugh has a political agenda—those who picked him think and hope he does.

Next, you’ll hear from Brett Kavanaugh, who will give his own opening statement before the committee adjourns for the night.

The next day will begin intense questioning of Brett Kavanaugh  from committee members. The senators can do several rounds of questions, so we expect it to last two days. A lengthy questioning could go late into the evening Wednesday night and then they would continue with more questions on Thursday.

On the last day, which will likely be Friday, you will hear from outside witnesses. Listen for some of those witnesses to talk about the harm that could come upon them, their families and their loved ones based on Kavanaugh’s record.

What should we be paying attention to during the hearing? What role do senators play during the process?

The Republican senators will say that Kavanaugh is a smart, kind guy that just calls balls and strikes as now-Chief Justice Roberts said during his hearings. Democrats will say it’s fine and good that he is a nice and bright man, but we really need to know if he will come to cases with an open mind rather than a political agenda—and that’s a political agenda on a range of issues including health care, presidential power, religious liberty, women’s rights, voting rights, privacy, and more.

You’ll hear intense questioning from the senators and you can expect that Kavanaugh won’t directly answer certain questions. We already know from senators’ reports from meetings with Kavanaugh that he is not answering their questions on Roe and the ACA. And unlike past hearings, expect to see a lot of back and forth, because Democrats are not going to accept a non-answer. It’s unacceptable.

If Kavanaugh is confirmed, does he become a justice immediately? If he is not confirmed, what happens?

After the hearing, the nomination has to be voted on by the Senate Judiciary Committee. There is usually at least ten days to a week between the hearings and the committee vote, so that could be scheduled for the week of September 17. Democratic senators can and will delay the committee vote once, which would likely be the week of September 24. If the nominee is voted out of committee, he is then available for a vote by the full Senate at any point. If he is confirmed by the full Senate, he will be sworn in almost immediately. There is usually a private swearing-in ceremony followed by a more public ceremony. Republicans’ goal is to get him on the Court before October 1, which is when the next Supreme Court term starts.

If he is rejected, the White House has to come up with a new nominee. Hopefully there will be more negotiations, because there were absolutely none for Brett Kavanaugh. We would expect to see the White House, the Senate majority, and the Senate minority come up with a nominee who is a more balanced, less partisan choice.

This is a nomination arc that has seen a lot of surprises. And there still could be more, so we can’t say for sure what’s going to happen.

Is there any way to remove a justice once they are confirmed?

Federal judges, including Supreme Court justices, are confirmed for life, until they retire or pass away. The only way to remove them is through impeachment. Because of the importance of having judges insulated from political pressure, the process has not been used very many times. In the past, when there have been impeachments of lower court judges, it has been for offenses like perjury, misuse of funds, and bribery. So it’s important to make sure that the right person fills this vacancy. This is a particularly critical seat, since Justice Kennedy was often a swing vote on the Court, and the justice who replaces him will make decisions that will impact people’s health and wellbeing for decades to come.

I live in a blue state with blue Senators. How can I help?

Even though there are many Democratic senators that we expect to vote no, they haven’t all said that explicitly. It’s important that they do and present a united front because we will still need at least two Republican votes. Please call your senators and tell them not only to come as a No vote, but also to talk to their colleagues who aren’t out yet, and talk to Republicans. It is essential that this not be treated as business as usual, and senators should pull out all the stops.

Is there really any hope in stopping Kavanaugh?

YES! If we fight, we will win. According to polling, Kavanaugh is the weakest nominee for the Supreme Court in modern history. He has poll numbers like that of Robert Bork, who was voted down by the Senate in 1987. Just because Kavanaugh is the nominee does not mean that he’ll become a justice. Supreme Court nominees have been stopped and withdrawn in the past, and we can do it again.

What is the Supreme Court’s role in our democracy?

The Supreme Court is the highest most important court in the entire judicial branch. The Constitution gives the Supreme Court power to check, if necessary, the actions of the president and Congress. They can stop the president if his actions are not allowed by the Constitution and a law passed by Congress can be deemed unconstitutional. It is important to have a Supreme Court that is balanced.

What are some ways in which the Supreme Court particularly impacts young people, women, and people of color?

Decisions that the Supreme Court makes impacts Americans’ lives for generations and young people will be around for generations. Young people, women and people of color also have the most to lose socially, economically and politically. The Supreme Court justices dictate whether marginalized communities matter in the eyes of the law. Equal protection of all people, specifically women and people of color, was not considered when the Constitution was originally written, so who interprets those laws is super important. So many of the advances we have made in this country have been led by courts—not the political branches—throughout history. For example, Loving v. Virginia protected the rights of two people to marry no matter their race; Roe v. Wade granted people the right to reproductive freedom; and Tinker v. Des Moines helped define students’ rights. Courts have not only provided protection, but they have been pivotal in providing access to rights that all people should have had in the first place. Notably, the Supreme Court’s decisions also impact people of color and women and girls in other nations around the world because of our country’s influence.

How can the Supreme Court nomination fights be used to elevate and address critical issues of privilege and oppression?

It’s very difficult to name the systems that contribute to the oppression of communities of color. Many institutions have not always been accessible to everyone, so we must use this conversation around the Supreme Court nominations to not only talk about the life-and-death impact of cases, but to highlight the untold stories of communities of color.

Conservatives get it. They understand the power of courts and have taken a deliberate strategy to appoint extremists to the Supreme Court that will interpret the Constitution in a way that satisfies their agenda.

That’s why we need to tell our stories. Check out hashtag #OurCourtsOurLives to read stories and share yours today.


Brett Kavanaugh, Protecting the Supreme Court, Supreme Court, Young People For Action