How the Supreme Court Fills a Vacancy

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The Supreme Court has nine members. When a vacancy arises, such as when a current Justice retires or dies, the President appoints someone to replace the Justice who has left. Article II of the U.S. Constitution makes this provision for the President. The Constitution does not list qualifications for the position of Supreme Court Justice, but the people who have served in that capacity have generally had extensive experience in the legal profession. Common former jobs include lawyers, judges, and law clerks to Supreme Court Justices. The last Supreme Court Justice who did not attend law school was James Byrnes, who served in 1941–1942.

Because Supreme Court Justices commonly have many years of judicial experience, they tend to be older when they become members of the Court. The oldest person to be nominated to the Court was Harlan Stone, who became Chief Justice in 1941, when he was 68. The youngest successful nominee was 32-year-old Joseph Story, who joined the Court in 1811 and served another 34 years.

The Senate, in the form of the Judiciary Committee, has hearings on the President's nominee, asking the nominee pointed questions about judicial philosophy and about the opinions that he or she has written for cases in lower courts. Other people can appear before the Judiciary Committee and answer questions about the nominee's credentials. When the hearings have finished, the Senate Judiciary Committee makes a recommendation to the full Senate, which then votes on whether the nominee should join the Supreme Court.

If a simple majority, 51 votes of the 100 members of the Senate, votes yes, then the nominee joins the Court. If the nominee does not gain the requisite number of votes, then the process starts again, with the President nominating another person and the Senate agreeing to have hearings and so forth. In its history, the Senate has rejected only 12 nominees to the Supreme Court of the 124 people nominated since the founding of the country.

As they do in other matters, Senators have the right to filibuster in order to prevent a nomination of a Supreme Court Justice. No Senator has yet done this.

Supreme Court Justice, according to the Constitution, "shall hold their Offices during good Behavior." This means, essentially, that they are not elected and do not have a term limit. Justices can be impeached. Only one Justice has been impeached. That was Samuel Chase, in 1805. As with impeachment of the President, however, impeachment involves two phases: the House votes to impeach and then the Senate votes to convict or acquit. Chase was acquitted and remained on the Court until he died, in 1811.

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David White