Will Kavanaugh Be Confirmed in Time for the First Tuesday in October?

It seems doable.

|The Volokh Conspiracy |

Senator Grassley announced Wednesday that Judge Kavanaugh's hearing will be delayed until at least September. That's too bad. I would have preferred to move things along more quickly. The notion that nothing gets done in Washington in August has long annoyed me. But I suppose I'll get over it.

Paul Mirengoff on Powerline expressed hope that Kavanaugh will nonetheless be confirmed by the full Senate in time for the Supreme Court's new term (this year October 1). That strikes me as reasonable. Mirengoff gives several recent examples in which the time from hearing to full Senate vote was quite a bit less than a month, so getting the process wrapped up by October 1 ought to be achievable.

In this post, I just want to remind everyone that Supreme Court nominations did not used to take as long as they do now. As recently as the 1920s, it was still possible for a member of the Supreme Court to resign on a Monday, the president to nominate his successor on a Tuesday, and the Senate to confirm the nominee later that afternoon. One, two, three. The process couldn't have been carried out any more speedily.

It is worth noting that part of the reason (though probably just a small part) for the change is the Senate hearing itself. It was not until 1925 that the Senate Committee on the Judiciary held its first hearing on a Supreme Court nominee. And it was not until the 1950s that hearings became routine. When Harry Truman nominated Sherman Minton in 1949, Minton actually refused to appear before the Senate committee. He considered it undignified and unnecessary given his record of judicial service (and for that matter his service in the Senate itself). The Senate confirmed him anyway.

Those days are gone. I'd be very surprised if any super-quick confirmations occur in my lifetime (or in yours, Dear Reader). Big Government, polarized politics, and "legal realism" and its progeny, have all combined to mean that a lot rides on who sits on the Supreme Court. Confirmations will thus be time consuming.

Nevertheless, the months of July, August and September ought to be enough to scrutinize Kavanaugh's record thoroughly and fairly. Kavanaugh was hardly a surprise nominee coming out of nowhere. Most of the groundwork for this nomination and confirmation process was laid long ago.

Update: Paul Mirengoff has more news suggesting things may unfold more slowly.

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  1. Just a note that things didn’t always go so smoothly in the good old days. John J. Parker, nominated by Herbert Hoover for the Court in 1930, was rejected by the Senate, 39-41, thanks to opposition from labor groups (he was in favor of “yellow-dog” contracts) and the NAACP (he’d said that blacks didn’t belong in politics). The Senate has become much more partisan than it used to be, in large part because the two parties are much more homogeneous these days, both reflecting and abetting the political “sorting” of the U.S. Also, if the Court itself had an informal policy of not making “big decisions”, particularly ones that overturn state or federal laws, by less than a 6-3 majority, then it could “depoliticize” itself. I confess that there are many 5-4 decisions affecting civil liberties, particularly regarding the war on terror, that I applaud. I also feel that the Court ought to overturn all the “discourage poor/black people from voting” laws the states can turn out. Unfortunately, the opposite tends to be the case.

  2. If referring to “the First Tuesday in October” is some sort of meta-comment about the situation, I don’t get it. The Supreme Court convenes on the first Monday in October.

  3. Professor Heriot,
    I feel like quite a few things have happened since 1950 that would cause the confirmation process to change rather substantially. Such as the Warren Court, Abe Fortas, Roe vs Wade, the Nixon confirmations, Bork, gang of 14, the DC Circuit filibusters, the nuclear option, Merrick Garland and nuclear option 2.0.

    To the extent advice and consent used to be perfunctory and deferential, those days are long gone. Nothing in the constitution requires advice and consent to be administered that way anyway.

  4. In this post, I just want to remind everyone that Supreme Court nominations did not used to take as long as they do now.

    Similarly, I wish to remind everyone that the Supreme Court did not always consist of nine justices. For decades, the number of justices mirrored the number of federal judicial circuits. As recently as the 1860s, for example, the number of justices ranged from eight to ten. The Court has been enlarged at least four times.

    1. I worry about you RAK. Constantly setting yourself up for disappointment.

  5. #1. Because this is an election year, I’m not so sure. The National Archives sent a letter to the Senate Judiciary Committee informing it that it won’t be able to process all of the document’s requested until the end of October. If the Republicans push forward without the documents, it can negatively impact their chances of winning during a year that Democrats are playing defense.

    #2. I will also point out that Associate Justice Elena Kagan was confirmed on August 5th in Obama’s second year. This means that Trump can’t say he was the first president to get two nominees confirmed. However, this probably won’t stop him from making this claim.

    1. IIUC he would be the first President to get two nominees confirmed in 1st term.

      1. By this time in Trump’s presidency he is already falling behind many presidents in getting his second nominee confirmed. These are just the ones since WWII ended:

        Harry Truman (2)
        Richard Nixon (2)
        George H.W. Bush (2)
        William Clinton (2)
        Barack Obama (2)

        If Kavanaugh isn’t confirmed by September 25th, you can add John Kennedy to that list with two successful nominees.

        This really doesn’t depend on the president. A lot of it has to do with justices waiting until their party wins the presidency, expanding the court, incapacity, death, and ethics. The only reason I point this out is because Trump likes to compare himself to his predecessors and tweet stories like this.

      2. The record is William Taft with five in his first two years. I don’t think Trump is going to come close to that.

  6. Kavanaugh deserves a confirmation hearing -just as prompt as Merrick Garland received.

    By the way, I can’t seem to find any record of Heriot publicly calling for the Senate to hold hearings on Garland’s nomination. Strange.

    1. “By the way, I can’t seem to find any record of Heriot publicly calling for the Senate to hold hearings on Garland’s nomination. Strange.”

      I bet you also can’t find any record of anyone publicly calling for the Senate to hold a final vote on Miguel Estrada after he was nominated by Bush in 2001. Not so strange after all.

      1. Estrada got a confirmation hearing and seven cloture votes in accord with Senate procedures. Garland didn’t get a hearing or a vote. Totally different situation.

        1. Facts don’t bother DJD.

        2. “Estrada got a confirmation hearing and seven cloture votes in accord with Senate procedures. Garland didn’t get a hearing or a vote. Totally different situation.”

          Bullshit. Complete and utter bullshit. The advice and consent comes from a vote on the nomination, not a vote for cloture. Neither Estrada nor Garland got a vote on their nominations, and that’s all that matters.

          1. It’s not a great sign of logic when you have to do that much work to frame it so they were in parallel.

            1. Only an utter moron would consider pointing out that advice and consent depends on an actual vote on the nomination, not the dog and pony show of a confirmation hearing, as a lot of work. for anyone else it’s pretty obvious. I get why you had problems though.

              1. I guess I can see why an actual vote would be “consent,” but how about “advice?” Would only an utter moron wonder why the framers used two different words there?

                1. Because you seem confused about the meaning of “and,” probably.

                  1. Ha ha so in your view, the use of the word “and” means the phrase “advice and consent” refers to a single action, like a vote on the nominee? So “advice and consent” can be interpreted to mean the same thing as “consent?” You are right, if that’s indeed what “and” means, I am confused.

        3. @ William_Zanzinger

          How about Franklin Stuart Van Antwerpen, Jay Waldman, Terrence Boyle, Lillian BeVier, Sidney Fitzwater, John Smietanka, Justin Wilson, Frank Keating, Kenneth Ryskamp, and one John Roberts the first time he was nominated? No senate action.

          You might like your hypocrites more than DJDiverDans hypocrites, but hypocrites they all remain.

    2. Kavanaugh and Garland are not similar situations.

  7. Has Bovada published a prop bet on the date of confirmation?
    I’m betting he’s not on SCOTUS for the 1st oral argument.

  8. Wonder what Kavanaugh has turned up with respect to Vince Foster’s “murder.”

    Maybe he should go investigate Seth Rich next.

  9. the months of July, August and September ought to be enough to scrutinize Kavanaugh’s record thoroughly and fairly.

    Well, if you say so, Ms. Heriot. But it does seem to me that you can’t scrutinize his record thoroughly if you don’t have the necessary documents, which apparently won’t even be available by the end of September.

    So WTF are you talking about?

    1. LMAO. Poor Progressive Democrats couldn’t get their shiite together when Kavanaugh was confirmed for DC Appellate Court and now can’t get their shiite together for his SCOTUS nomination.

  10. I would bet the pubs are not so unhappy about the delay due to the elections in November. If the dems are seen as being unreasonable in demanding literally millions of documents which almost no one will read it could increase pub turnout. I doubt dem turnout could be increased any more since they have been screaming about how this nomination is not legit from day one.

  11. Prof. Heriot gets it wrong, again.

    She pinpoints the ‘problem’ on the Senate itself; however, the elongated Senate confirmation process is due to increased activism by citizens, special interests groups (e.g. environmentalists, pro-lifers, etc.), and other entities (e.g. Industry, ACLU, etc.).

    This is not even a problem but is actually a good development since it shows more people are actively participating in our government and society.

    1. You’re looking at a symptom, not the cause. The Senate chooses to wait on third parties so senators can use “independent” research as cover when they vote a particular way. A much better method would be to vote on whether or not a nominee is at least minimally qualified for the position, not how the nominee might handle a particular case. That is how it used to be done.

  12. I don’t think Sanford is a typical example.

    He was famous. He was basically nominated by the Chief Justice. And the Republicans had a 53-43 majority in the Senate.

    1. The point behind the article though is that the slow confirmation process is a modern era problem. Eight individuals have been officially appointed and confirmed on the same day. Another thirty three nominees were confirmed within five days.

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