In reality, the president accepts recommendations from senators and/or congressmen of the state in which the judge will serve. Typically, the president accepts recommendations from legislators of his own party. Some states, such as New York, Wisconsin and California, have nominating commissions appointed by state legislators that make recommendations for federal judicial nominees.

Once the recommendations are received, the Department of Justice reviews the nominee's background to help the president make his decision. When the president nominates someone for an open position on the federal bench, the Senate Judiciary Committee conducts their own investigation into the nominee's qualifications. There is no set list of requirements, but Senator Orrin Hatch of Utah, who sits on the Judiciary Committee, has said that he personally believes the Committee should focus on the qualifications of a nominee: honesty, competence, temperament, and the nominees appreciation for the proper constitutional role of an Article III judge. Statement of Senator Orrin Hatch, July 1, 1999.

Members of the public are invited to comment on the nomination. The American Bar Association's judiciary committee evaluates each nominee's professional qualifications and provides senators with an opinion about whether they believe the nominee is qualified based on their evaluation of the nominee's integrity, professional competence and judicial temperament. Although not binding, some members of the Senate give weight to this non-partisan evaluation, among other factors, when deciding whether a nominee should be confirmed.