President Barack Obama named Merrick Garland as his new nominee for the Supreme Court last week, setting the stage for what promises to be a rough battle over who will ultimately fill the vacant seat on the bench.
Ever since Supreme Court Justice Antonin Scalia passed away in February, the White House and Senate Republicans have been at odds over the nominating process. Obama asserts that it’s his job to appoint a new associate justice, while the GOP, which controls a majority in the Senate, want to hold out so the pick can be made by the winner of the 2016 election. Senate Majority Leader Mitch McConnell has vowed not to confirm Obama's nominee, and the Republican members of the Senate Judiciary Committee have said they will not hold any hearings on the nomination. Both sides are accusing the other of politicizing the issue for partisan gains.
Irresistible force, meet unmovable object. While the politics driving how the whole thing plays out may be complex, the nomination process itself is actually not super complicated.
The Senate has two basic opportunities to block the president's pick: 1) in the kind of recommendation the Senate Judiciary Committee offers to the chamber as a whole; and 2) whether the Senate votes to confirm (or not.) A confirmation requires a majority vote, unless opponents filibuster, which essentially means they stage a marathon speech that is used to delay a vote (Republican presidential hopeful Ted Cruz and Democrat Wendy Davis, a Texas state senator, have both made headlines with the procedural move in the past). In that case, a supermajority of 60 votes is necessary to end the debate and move on to the confirmation vote.
So, how likely is it that a nominee will be entirely rejected? Well, it's happened before. The most recent nominee to walk away was Robert Bork, in 1987. He got shut down on both counts, when a negative recommendation was followed by a vote against him. Current Justice Anthony M. Kennedy eventually took the spot. Since then, only two nominees have been withdrawn by a president before a full vote.
Still confused? To make this whole process even easier to digest, we've created a handy flowchart outlining the typical paths for the nomination and potential outcomes:
Sources: Questioning Supreme Court Nominees About Their Views on Legal or Constitutional Issues: A Recurring Issue, U.S. Senate Judiciary Committee website, Supreme Court Appointment Process: Roles of the President, Judiciary Committee, and Senate, Supreme Court Of The United States website.