The Volokh Conspiracy

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

It seems doable.


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.