Whoever is confirmed to replace Justice Stephen Breyer – who has recently announced that he will be retiring – will be the 116th justice to serve. Breyer, who was nominated by President Bill Clinton in 1994, was confirmed by a lopsided 87-9 Senate vote.

The Constitution sets out the basic framework for nominations. Article II gives the president power to nominate “judges of the supreme court” and the Senate the responsibility to give its “advice and consent.” Thus, when there is a vacancy on the court, the president submits a nomination to the Senate, and the Senate votes to confirm or reject the nomination.

The process we are used to – when a nominee appears before the Senate Judiciary Committee to answer questions – is relatively new, having been the norm for only about 70 of the nation’s 200-plus years of existence. The first nominee to appear before a Senate committee was Harlan Fiske Stone (nominated by President Calvin Coolidge) in 1923, followed by Felix Frankfurter (nominated by President Franklin Roosevelt) in 1938. This pattern became the norm in the 1950s with the nomination of William Brennan (nominated by President Dwight Eisenhower).

Though there have been some significant controversies over judicial nominations, the prospects of being confirmed once nominated are actually very good. Over the years, 120 justices have been nominated to the court who went on to serve (seven were confirmed but declined to serve). Only 12 nominees have been rejected, the same number withdrawn, and 10 who received no vote.

Even some of these nominees eventually served on the court. For instance, Chief Justice John Roberts was nominated to serve as a justice, but his name was withdrawn so he could be nominated to serve as chief justice when Chief Justice William Rehnquist died. When Roger Taney was nominated to serve by President Andrew Jackson, the Senate postponed confirmation but then confirmed when he was later nominated to serve as chief justice.

Among the unlikely nominees who were still confirmed was Lucius Lamar. He had resigned from serving in the U.S. House of Representatives to aid the secession of Mississippi from the Union, and he served in the Confederate army. He was appointed as a justice by President Grover Cleveland and confirmed in a 38-32 Senate vote.

There have been a few nominees who did not receive a hearing, but this is rare and appears to have happened mainly when the nominating president would soon be replaced by a successor. A notable exception occurred during the presidency of John Tyler, who was only able to get one of his five nominees confirmed. President Tyler had taken office after the death of Whig President William Henry Harrison, who had only served 31 days. Tyler was expelled from the Whig Party, which controlled the Senate and refused to consider most of his nominees.

Although the ultimate prospects of a nominee are good, this does not mean the process of confirmation will be painless.

The turning point for contentious nominations was probably the nomination of Robert Bork in 1987. Tom Goldstein of SCOTUSblog explained:

The nomination changed everything, maybe forever. Republicans nominated this brilliant guy to move the law in this dramatically more conservative direction. Liberal groups turned around and blocked him precisely because of those views. Their fight legitimized scorched-earth ideological wars over nominations at the Supreme Court, and to this day both sides remain completely convinced they were right. The upshot is that we have this ridiculous system now where nominees shut up and don’t say anything that might signal what they really think.

Ironically, the chair of the Senate Judiciary Committee at the time of Bork’s nomination was then-Sen. Joe Biden.

Even after the Biden hearing, not all hearings were contentious. Breyer, for instance, was overwhelmingly approved after “tame” hearings. Justice Ruth Bader Ginsburg (also nominated by Clinton) was approved in a 96-3 vote, and Justices Anthony Kennedy (President Ronald Reagan) and David Souter (President George H.W. Bush) were approved by votes of 97-0 and 90-9 respectively.

The margins have become a little tighter in the last two administrations:

President Barack Obama

• Sonia Sotomayor (68-31)
• Elena Kagan (63-37)

President Donald Trump

• Neil Gorsuch (54-45)
• Brett Kavanaugh (50-48)
• Amy Coney Barrett (52-48)

This recent history suggests the next few months could see significant drama over Breyer’s replacement. The constitutional process includes important roles for the executive and legislative branches, and history suggests the latter will be deferential, but surprises are possible.