Blog Post

Supreme Court nominee process moving forward, but could faces delays

January 25, 2017 | by Scott Bomboy

President Donald Trump will meet Senate Republican leaders this week about his Supreme Court nominee, in a sign that process is moving ahead. But will the nomination face enough delays to prevent a new Justice from hearing arguments this term?

 

President Trump said last week he expected to announce his selection to replace the late Justice Antonin Scalia about two weeks after the presidential inauguration. Trump also said at a ceremony on Tuesday the nomination announcement will be next week. (Editor's Note: Trump said on Wednesday morning the announcement will be on February 2.)

 

Even if President Trump releases the nominee’s name, at a conventional announcement ceremony or on Twitter by February 3 – two weeks after inauguration day – there are still a few roadblocks that could prevent a nominee from being confirmed by mid-April.

 

The Supreme Court’s last scheduled days for arguments are between April 17 and April 26. The Court’s term will likely conclude in late June, after the Justices write opinions and take care of other court business. As of today, the Senate is scheduled to start a “state work period” where its members aren’t in Washington on April 10.

 

That timing would allow for a little over two months for the Supreme Court nomination to get through the traditional process of investigations and hearings in the Senate Judiciary Committee and a vote by the full Senate. Since 1975, the average length of the process between a presidential nomination and a final Senate vote has been 67 days. In comparison, it would be a 63-day period between February 3 and April 7 of this year.

 

In recent years, the Supreme Court nomination process has been a bit longer. According to official Senate records, Elena Kagan’s nomination process lasted 87 days, while the period between Sonia Sotomayor’s nomination and confirmation was 66 days. Samuel Alito’s nomination process was 86 days.

 

The confirmation process for President Trump’s nominee faces two possible hurdles. One is the availability of the Judiciary Committee to fully take up the Supreme Court nomination process. The Senate Judiciary Committee isn’t scheduled to take a vote on Senator Jeff Session’s nomination for Attorney General until at least January 31, after Democrats asked for a one-week delay under committee rules on Tuesday. A full Senate vote would likely follow the committee’s recommendation.

 

The Judiciary Committee plays a critical role in the nomination process.  Under Senate standing rules going back to 1868, the nomination is sent to the Judiciary Committee after receiving a letter from the President, unless the nominee is a current or former Senate member. The Senate Judiciary chair, Charles Grassley, would then direct the committee to undertake a pre-hearing investigative stage, followed by public hearings and a decision on a recommendation to the full Senate.

 

The Congressional Research Service says that since 1975, it has taken 39 days on average for the pre-hearing investigative process to be completed and confirmation hearings to begin.  Nomination hearings have averaged four or five days in length, with the Judiciary Committee vote occurring about a week after the hearings have ended.

 

To be sure, Senator Grassley could expedite part of this process, which also could happen faster if the nominee is a federal judge or another public official who has been vetted and voted on by the Senate before.

 

Once the Judiciary Committee’s recommendation is sent to the full Senate, a second possible delay would a decision by Democrats in the Senate to filibuster the nomination until Republicans secure a cloture vote to end the filibuster. The Congressional Research Service says that only four cloture votes have been taken in the Senate since 1968 and only one had a direct impact on a nomination’s outcome. (In 1968, Democrats couldn’t overcome a cloture vote related to the nomination of Abe Fortas as Chief Justice.)

 

The Republicans also have the option available to kill the filibuster for Supreme Court nominees, using the same parliamentary tactics employed by Harry Reid in 2013 to eliminate other Senate filibusters. But it also believed Senate Republican leaders are working to avoid that scenario by appealing to Senate Democrats up for re-election in 2018.

 

In all, the CRS says it has taken two weeks, on average since 1975, for the full Senate hold a confirmation roll-call vote once the Judiciary Committee’s recommendation is received. If confirmed, the new Justice will take their two oaths shortly after the vote. Kagan and Sotomator took their public oaths about two days after their Senate confirmation votes. But the White House and the Court could expedite that process, too.

 

For now, the Supreme Court has a private conference scheduled for April 13, where new cases are considered for the Court, and arguments set for April 17. The Court could also decide to extend arguments beyond April, and even extend the current term beyond late June if needed. But the practical matter of writing opinions after April arguments would seem to make such extensions unlikely.

 

Scott Bomboy is the editor in chief of the National Constitution Center.


 
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