I have a policies and procedures question. I've been watching Brett Kavanaugh's confirmation hearing with the Senate Judiciary Committee on television. I'm having a hard time finding reading on the criteria the Committee uses to evaluate a candidate.

I found a wikipedia article at Appointment and confirmation to the Supreme Court of the United States, and it does a good job with many of the details of the appointment and confirmation process. However it does not provide a treatment of the criteria used to evaluate a candidate.

Brythan's answer at What requirements are there for becoming a supreme court justice? suggests there are some criteria prior to the nomination, like a "Well Qualified" rating from the American Bar Association.

My question is, what criteria are used to evaluate a candidate in the Senate Judiciary Committee? A related question is, does the Senate as a whole use the same criteria?

  • 3
    The criteria are whatever the committee want them to be.
    – Caleth
    Sep 27, 2018 at 23:39

2 Answers 2


The decision regarding whether the Senate Judiciary Committee or the Senate as a whole should vote in favor of a nominee to the U.S. Supreme Court is a purely political question. There are no binding criteria and the decision is not subject to judicial review.

Each Senator sets his or her own standards, although the Senate Judiciary Committee also would prefer not to approve a candidate whom the full Senate is likely to reject.

All previous U.S. Supreme Court nominations in recent history, except the nomination of Judge Gorsuch, that were considered by the Senate Judiciary Committee and the full Senate also took place in a context when any nominee had to overcome a filibuster threat to be considered on the merits by the U.S. Senate, a limitation that no longer applies. So, the Senate Judiciary Committee was once considering if a nominee of the majority's own party could secure 60 votes, some from members of the other party, while now it need only consider whether the nominee can secure 50 votes plus a Vice Presidential tie breaking vote from members of their own party. So, the standard to approve a nominee has loosened somewhat, at least in theory.

The vast majority of U.S. Supreme Court nominees have been confirmed.

The isolated cases in recent history where a nominee has not been confirmed (e.g. Judge Bork and Judge Garland), or where the vote in favor of a nominee was close (e.g. Justice Thomas or Justice Gorsuch), are sufficiently individualized and in some of the cases are so long ago, that they don't provide very clear precedents today.

U.S. Supreme Court nominees do, however, tend to be scrutinized more carefully than appointees to cabinet positions, because of the political power associated with that appointment and the fact that it is a lifetime appointment.

There are factors that individual Senators often consider, but none of those are binding or uniform among Senators, and those that are widely accepted are not necessarily applied in the same way by different Senators.

In general, Senators tend to opposed nominees who they perceive as too extreme in judicial philosophy in a manner opposed to their own views.

Senators also expect nominees to be licensed attorneys who had successful careers prior to their nomination (and to lack any clear evidence of incompetence or other conduct that would be grounds for disbarment or removal from judicial office), to have a "judicial temperament", and to be willing to commit orally in their testimony to being impartial in interpreting and applying the law if appointed (whether or not their background and history as a judge supports this claim).

These criteria, other than judicial philosophy, do not pose much of an issue for most nominees.

Nominees generally refuse to offer testimony regarding their opinions on unresolved legal issues that are likely to come before the court and Senators normally don't consider that refusal to be disqualifying.


A related question is, does the Senate as a whole use the same criteria?

No. Each Senator can use a different set of criteria, both in the committee and when voting as a whole. There is no official list of criteria that must be met.

As a practical matter, justices are expected to be lawyers. Most have judicial experience and experience clerking for a Supreme Court justice. But there is no requirement. The most recent three nominees have been feeder judges, meaning that a significant number of their law clerks went on to clerk for Supreme Court justices.

All recent confirmed nominees have received a Well Qualified rating from the American Bar Association. The criteria the ABA uses is in their backgrounder (PDF). From pages 9-10:

A.Evaluation Criteria

As with nominations to the lower courts, the Committee’s evaluation of nominees to the Supreme Court is directed solely to their professional qualifications: integrity, professional competence and judicial temperament.

The Committee does not take into account the nominee’s philosophy, political affiliation or ideology. The Committee’s evaluation of a Supreme Court nominee is based on the premise that a Justice must possess exceptional professional qualifications. A Supreme Court nominee should possess an especially high degree of legal scholarship, academic talent, analytical and writing abilities, and overall excellence. The ability to write clearly and persuasively, to harmonize a body of law, and to give meaningful guidance to trial courts, circuit courts and the bar for future cases are particularly important skills for a Supreme Court nominee. The significance, range and complexity of the issues considered, as well as the finality and nation-wide impact of the Supreme Court’s decisions, are among the factors that require exceptional ability.

While the ABA does not take into account philosophy, political affiliation, or ideology, there is nothing keeping Senators from doing so. Most nominees do not share such details publicly though. Officially this is because it would be improper for justices to prejudge cases in that way. Cynics suggest that this may make it harder for people to rail against a nominee.

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