Why Supreme Court Confirmations Now Take a Year

A Supreme Court justice used to be confirmed by the Senate in two or three weeks. The process was procedural: the president named a nominee, the Senate held perfunctory hearings, the vote took place, and the new justice took the oath. Most twentieth-century justices went through this process without significant opposition and without the months-long political battles that confirmations now generate.

That has changed. Confirmations today often take six months or more. Some take a year. One famously did not happen at all — the Garland nomination in 2016 was left to expire after the Senate majority refused to schedule hearings. The transformation is recent, and it reflects changes in how both parties view the Court, how the Senate handles nominations, and what the political stakes of any given seat have become.

What confirmations used to look like

For most of the twentieth century, Supreme Court confirmations were not particularly partisan events. Justices were confirmed by lopsided margins regardless of who controlled the Senate. Antonin Scalia was confirmed 98 to 0 in 1986. Ruth Bader Ginsburg was confirmed 96 to 3 in 1993. Stephen Breyer was confirmed 87 to 9 in 1994. Even in cases where ideology was clearly known and clearly distinct from the opposition party’s preferences, the confirmation outcome was rarely in doubt.

The hearings themselves were briefer. A typical nominee testified for a few days, answered most questions willingly, and produced a record that the Senate then evaluated against a fairly stable set of standards. The standard was something like: is this nominee qualified, are there obvious ethical problems, is the nominee within the mainstream of American legal thought. Nominees who cleared those bars were confirmed regardless of which party held the White House.

The norm operated through the 1980s with one major exception. The 1987 rejection of Robert Bork is sometimes treated as the start of the modern era, and it changed how both sides approached subsequent nominations. After Bork, nominees prepared more carefully, said less in hearings, and treated the confirmation process as a campaign rather than a formality. The shift was gradual but durable.

Why the timelines lengthened

Three things changed in the decades after Bork, and the combined effect produced the modern long confirmation.

First, the substantive stakes increased. The Court began deciding more contested questions — on abortion, on affirmative action, on campaign finance, on executive power — and the votes on those questions were often 5 to 4 with the swing vote held by a single justice. In that environment, a confirmation could shift the median of the Court for a generation, and both parties began treating each seat as the most important judicial appointment of their lifetimes.

Second, the procedural barriers were dismantled and then partially rebuilt. The Senate filibuster used to require sixty votes to confirm a Supreme Court justice over partisan opposition, which encouraged presidents to choose nominees who could attract some cross-party support. The filibuster was eliminated for Supreme Court nominees in 2017, which meant a simple majority could confirm a justice regardless of how the minority felt. The change removed the structural pressure for cross-party negotiation and shifted the entire confirmation process onto a partisan footing.

Third, the vetting process became more thorough on all sides. Background research that used to take weeks now takes months, and outside groups on both sides invest heavily in producing opposition research designed to derail a nomination or pressure swing senators. The nominee’s record gets analyzed in greater depth, the hearings get longer, and the political coverage extends across the entire confirmation period rather than concentrating in a few news cycles.

The mathematics of a contested confirmation

A modern Supreme Court confirmation usually breaks down to a question of whether the majority party has fifty votes. Because the filibuster no longer applies, the math is simple: if every senator from the majority votes yes, the nominee is confirmed. If two or more majority senators defect, the nominee may fail.

This shift has changed how nominations are designed. A president whose party controls the Senate by a narrow margin will usually pick a nominee acceptable to the most conservative or most liberal members of their own caucus, because those are the votes most likely to defect on ideological grounds. A president whose party controls the Senate comfortably has more room to pick a nominee that will produce a unified party-line vote without any need for negotiation.

The minority party has limited tools to block a confirmation in this environment. They can extend the hearings, demand more documents, propose amendments to the rules, and use procedural delays to draw out the timeline — but the underlying vote will still take place, and absent a defection from the majority, the result is predictable. What looks like a months-long battle is often a battle over timing and narrative rather than over the outcome.

When confirmations stall completely

A confirmation can stall not because the votes are not there but because the Senate majority refuses to schedule hearings. This happened with Merrick Garland in 2016 — the Republican Senate majority declined to consider his nomination, citing a then-novel argument that election-year vacancies should be filled by the next president. Garland’s nomination expired when the Senate adjourned without acting.

The Garland precedent has reshaped how vacancies are handled. Future Supreme Court vacancies occurring close to a presidential election now produce an immediate procedural question — should the seat be filled before the election, or should it be held for the winner — and the answer depends on which party controls the Senate at that moment. The norm that used to require the Senate to vote on every nominee was abandoned in 2016 and has not been re-established by either party.

The longer-term consequence is that Supreme Court vacancies in the last year of a presidential term now operate under a different set of rules than vacancies earlier in a term, and the rules can shift based on which party benefits in a given moment. The procedural neutrality of the confirmation process has narrowed considerably.

The hearings as performance

A modern confirmation hearing serves two purposes for the nominee. First, demonstrate competence — answer enough legal questions correctly to satisfy the senators of both parties that the nominee has the necessary expertise. Second, say as little as possible about substantive policy positions that could be used in future cases.

The first purpose is usually easy. Modern nominees are almost always highly credentialed lawyers with strong academic and judicial records. They have argued cases, written opinions, and produced enough material to demonstrate technical competence within a single afternoon of testimony.

The second purpose is harder and more central to the modern hearing format. Nominees are coached to decline to answer questions about how they would rule on specific issues that might come before the Court, citing the ethical norm that judges should not prejudge cases. The result is hours of testimony in which the nominee carefully says nothing about the topics the public is most interested in. The hearings are educational about the nominee’s personality and demeanor; they are usually unhelpful about how the nominee will actually vote.

For a viewer, the most informative parts of a hearing are usually the questions the nominee answers more specifically than expected, or refuses to answer at all in unusually pointed ways. Those moments are the cracks in the prepared posture. They are where the underlying jurisprudence shows through.

What the longer timelines mean

Confirmation timelines that take six months or a year change how the Court functions in the interim. A vacancy on the Court means eight justices, which can produce 4-4 splits that leave lower court rulings standing without national precedent. Major cases can be deferred, reargued, or affected in unpredictable ways depending on which justice is missing.

The longer timelines also mean that judicial appointments have become a more central part of presidential campaigns. A candidate’s list of potential nominees now functions as a substantive policy commitment, and the speed with which a given vacancy is filled is itself a political event. The combination has elevated the Supreme Court in the political consciousness in ways that previous generations would have considered unusual.

Whether the modern confirmation process is sustainable is a question both parties have raised at different times, usually when they are in the minority. The structural pressures that produced the current process are unlikely to reverse. Future confirmations will probably look more like the recent ones than the older ones, with longer timelines, more partisan voting, and more visibility into a process that used to operate mostly out of view.