Of the 29 failed Supreme Court appointees, there seem to have only been two that didn't have Senate hearings, one being Merrick Garland (Barack Obama's nominee), whose nomination expired on January 3rd this year, the other being William C. Micou in 1853.

Why are Senate hearings not mandatory for all appointees?

  • 3
    It looks like all 3 of Millard Fillmore's nominees were "ignored", similar to Garland. Similar reason too, the democratic senate wanted to wait for the democratic president. en.wikipedia.org/wiki/… I don't want to make an answer cause I'm not a history expert, but I think the "reason" is simply that the founding fathers didn't anticipate political parties. They didn't anticipate partisanship.
    – userLTK
    Mar 21, 2017 at 6:48
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    I've clarified my answer after I read the comments and your question again. Basically, hearings are not compulsory by the Constitution, but they are the norm. However, Senate confirmation is mandatory, otherwise, the nominee won't be confirmed.
    – Panda
    Mar 21, 2017 at 13:48

3 Answers 3


Senate confirmation is mandatory for a Supreme Court appointee/ nominee to be confirmed and become a judge. Since 1955, confirmation hearings are always held to confirm a nominee in the Senate. The main purpose of a confirmation hearing is to directly question the nominee and find out more about him/her.

Theoretically, the Senate can confirm a nominee without holding any confirmation hearing as the requirement of a hearing is not mentioned in the Appointments Clause. However it's a routine practice since 1955 as stated in this article by CNN.

The decision to not hold hearings is a historic move from the Senate, which has regularly held confirmation hearings for nominees since hearings became routine practice in 1955, the Senate historian's office said Tuesday.

The Senate can choose to not hold a vote or any hearing and the nominee won't be confirmed which happened with Obama's nominee, Merrick Garland.

In Garland's case, the Republican-controlled Senate declined to hold any vote and thus his nomination expired on Jan 3, 2017 with the end of the 114th Congress.

  • The decision not to hold hearing is historic. But so is nominating a judge in a situation when the Senate has indicated that it would not confirm him. The fact that the Senate was not willing to consider anyone nominated by Obama in his last year of the Presidency was very clearly and very loudly stated by the Republican Senate leadership.
    – grovkin
    Sep 27, 2018 at 12:15
  • @grovkin have there been any other times times that the Senate "has indicated it would not confirm" any judge regardless of nomination? Jun 22, 2020 at 19:09

Article 2, Section 2, Clause 2 doesn't require it.

He shall have Power, by and with the advice and consent of the Senate,...he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint....Judges of the Supreme Court.

The Constitution is a combination of directive, restrictive, and permissive statements. Directive uses some variant of phrasing including "Shall," while restrictive uses similar phrasing modified with a negative "no, not, etc.." The portion of this clause directing the President to obtain the Advice and Consent of the Senate, restricts the powers of the President while endowing the Senate with the permissive authority to provide Advice and Consent. There is not a directive declaration in the Constitution stating "the Senate shall provide Advice."

  • Doesn't that say just the opposite...that the Senate does have to approve via consent?
    – user1530
    Mar 21, 2017 at 4:02
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    @blip Advice and Consent are required to appoint the individual nominated, but there is nothing in the Constitution requiring that every individual nominated be given a hearing. Mar 21, 2017 at 5:16
  • Oh! Gotcha. Yes, that makes sense.
    – user1530
    Mar 21, 2017 at 5:21
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    Actually, it doesn't make sense. The Constitution is a very tersely-written document, using relatively plain language instead of water-tight legalese. As a result it is open to interpretation. But when it says that the President "Shall nominate, and by and with the Advice and Consent of the Senate, shall appoint", it seems clear that the founders expected the Senate to take action on a nomination. Partisans can twist the words to suit their own agenda, but that doesn't mean they are abiding by the intent of the Constitution.
    – jalynn2
    Mar 21, 2017 at 12:41
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    @jalynn2 There are many viewpoints on how to interpret the constitution. Take for example textualism and originalism; those are direct opposites on what you said. These are the approaches used by some of the supreme court justices, so they would say you are flat out wrong. Simply put, how do you know the intent of the founding fathers? Why is your opinion of intent better than someone elses? Mar 21, 2017 at 14:12

Because Congress has its own power to decide what business is takes on. Each chamber (House and Senate) decides on its own rules of order.

As an (unrelated) example, the latest attempt to challenge such independent power was when the Obama administration tried to declare Congress to be in recess when it wasn't. The SCOTUS disagreed and confirmed that Congress had the power to decide on its own rules of order.

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