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President Joe Biden will get his first chance to nominate a justice to the U.S. Supreme Court with the impending retirement of Justice Stephen Breyer after nearly three decades on the bench.
The process for replacing a Supreme Court justice always is closely watched, but it will take on new intrigue in the divided Senate, where Democrats have struggled to unify behind Biden's agenda.
The Senate is split evenly between the two parties, with Vice President Kamala Harris acting as the tie-breaking vote. While Democrats control the chamber, moderate senators in the party have stopped several pieces of legislation the Biden administration has championed.
Here is how Biden, and the presidents before him, get their nominee onto the high court.
What is the process for appointing a Supreme Court justice?
The Constitution outlines in simple terms how a justice is appointed to the U.S. Supreme Court. The “Appointments Clause” says the president nominates a justice and the Senate provides “advice and consent” to seat the judge.
In short, the president nominates justices and the Senate confirms them. In practice, that process plays out in several steps that allow for vetting candidates for the lifetime post.
The president nominates his candidate after background investigations into public record and professional credentials as well as personal financial affairs. Those investigations usually are done by officials in the Justice Department and the White House, according to the Congressional Research Service.
Then, the nominee begins the confirmation process, first in the Senate Judiciary Committee and then in the full Senate.
The Judiciary Committee does most of the Senate’s vetting of the nominee, investigating their background and qualifications. For the last half century, that has involved a pre-hearing investigation followed by public hearings and a final recommendation to the full Senate.
Once that recommendation is reported to the Senate, floor debate can begin in the full Senate ahead of a confirmation vote.
What does Breyer's retirement mean for Biden?: A chance to make his mark
How many votes are needed in the Senate to appoint a Supreme Court justice?
A simple majority of the 100 senators is needed for confirmation.
In a senate split evenly between Democrats and Republicans, that might provide outsized influence to individual senators. Similar dynamics have slowed Biden's agenda as Sens. Joe Manchin, D-W.Va., and Kyrsten Sinema, D-Ariz., have stymied efforts to pass social spending bills and voting rights legislation.
How quickly can a justice be appointed?
Typically, the process of seating a justice takes months, but it can be – and has been – done faster.
Presidents typically are swift to nominate their picks for the court. Among the current justices, the average time between the vacancy occurring to the public announcement of a nominee was 17 days, according to the Congressional Research Service.
The confirmation process typically takes longer. Since 1975, the average number of days from nomination to final Senate vote was about 68 days. But Justice Amy Coney Barrett was seated in just 27 days in 2020 as the Republican-led Senate raced to confirm then-President Donald Trump’s nominee ahead of the presidential election.
The 2020 confirmation was the fastest since 1975, when the Senate took just 19 days to confirm Justice John Paul Stevens.
Other recent appointments took far longer. Justice Brett Kavanaugh’s confirmation process lasted nearly three months, and Justice Neil Gorsuch took 65 days to win over the Senate. President Barack Obama’s two appointees, Justice Elena Kagan and Justice Sonia Sotomayor, took 87 and 66 days, respectively.
How does the Senate Judiciary Committee fit into the process?
The Senate Judiciary Committee does most of the heavy lifting on the upper chamber’s investigation into the president’s nominee.
It looks into the background and qualifications of the justice, and “typically the committee conducts a close, intensive investigation of each nominee,” according to a Congressional Research Service report.
The nominee first responds to the committee’s questionnaire, which asks biographical, professional and financial disclosure questions. The FBI provides the committee with its own reports investigating the nominee’s background and the American Bar Association rates the nominee based on his or her qualifications.
The nominee also meets privately with committee members and, typically, some senators who do not serve on the committee, according to the report.
After the investigation is complete, the committee holds public hearings, often about the nominee's qualifications, background, previous public actions and stances on major social and political issues, the Constitution and court rulings.
About a week after concluding those hearings, the committee meets to send a recommendation to the full Senate about whether the nominee should be confirmed.
What is the partisan makeup of the Judiciary Committee and the Senate?
Like the full Senate, the 22-member Judiciary Committee is split evenly between Republicans and Democrats.
Sen. Dick Durbin, D-Ill., serves as chair of the committee, while Sen. Chuck Grassley, of Iowa, is the ranking Republican.
The rest of the committee is filled with household names, including several senators who have run for president. The full roster for the committee is available here.
Does the Senate always confirm the president's nominee?
In most cases, the Senate confirms the president's nominee. Since the first justice was appointed in 1789, the Senate has confirmed 120 of the 164 nominations submitted by presidents.
The Senate rejected 12 of the 44 who were not confirmed through roll-call votes, while most of the others were either withdrawn by the president or otherwise never voted on by the Senate. Six of the unconfirmed nominations were eventually renominated and confirmed, according to the Congressional Research Service.
In 2016, the Republican-controlled Senate refused to vote on then-President Barack Obama's nominee, Merrick Garland.
This article originally appeared on USA TODAY: Supreme Court nomination: What is process and how long does it take?