September 23, 2020

What Comes Next: Nominating a Supreme Court Justice

Marty Paone

The flag flies at half-staff at the Supreme Court on the morning after the death of Justice Ruth Bader Ginsburg, 87, Saturday, Sept. 19, 2020 in Washington. (AP Photo/J. Scott Applewhite)

According to the Congressional Research Service, the average number of days from Supreme Court Justice nomination to final Senate vote since 1975 is 67 days. However, there are no hard and fast rules governing the timeline. This list shows the length of each Supreme Court Justice’s nomination process. Justice Ginsburg was nominated on June 22, 1993 and confirmed on August 3, 1993.

Once a nomination has been sent to the Senate, it usually takes some time for the Senate Judiciary Committee to acquire the documents relating to the nominee’s judicial record. This process can be quicker if the nominee has already been through the committee process for a lower court confirmation.

The Senate Judiciary Committee eventually holds a hearing where the nominee testifies and answers the Senators’ questions. Once that is completed, the Chairman may give the nominee time to submit further follow up material for some of the questions. If the Chairman and the majority of the committee are satisfied with the answers, a date will be scheduled for the Committee to meet and vote on the nominee. It should be noted that it takes unanimous consent for the Committee to meet beyond the first two hours of the Senate’s session, but Sen. McConnell can put the Senate in recess to permit the Committee to meet if there is possible objection to the Committee meeting.

The Committee Rules allow any member of the committee to ask for a one week delay in the vote, but Chairman Graham ignored such a request when he reported out an Asylum bill, S. 1494, in 2019. If time is of the essence, don’t count on such a request being honored.

Once the nomination is reported, while the Senate is in session, the Committee clerk brings the paperwork to the Executive Clerk on the floor. It is placed on the Executive Calendar and it can be considered the next day. It is a non-debatable motion to proceed to call up the nomination. If someone demands a vote, it’s a majority vote. Once the nomination is pending, Sen. McConnell can file a cloture motion for a cloture vote two days later.

To recap: if the Committee reports the nomination out on Tuesday and files it on Tuesday, Sen. McConnell can call up the nomination on Wednesday and file cloture for a Friday cloture vote. If cloture is invoked there would be a maximum of 30 hours for debate and then a vote on the nomination. A motion to postpone indefinitely is in order but would need a majority vote to succeed. Motions to adjourn could be made, but they too would lose and at some point, the Chair would put the question on the nomination and the vote would occur.

Some have posited the idea of trying to deny a quorum so no business can be conducted. That would be an extraordinary action which would require the participation of at least three Republican Senators (Vice President Pence doesn’t count towards a quorum) and could backfire. If the Senate came into session and had a vote on another matter earlier in the day, clearly showing a quorum, then later that day it turned to the consideration of the nomination and no Democrat was on the floor, Sen. McConnell could ask unanimous consent that the nomination be confirmed. With no one to object, the Chair would assume there’s a quorum based on the earlier vote and state, “without objection the nomination is confirmed.” If quorum deniers mounted a public campaign to avoid this scenario, they would be portrayed as refusing to do their jobs, an accusation some Democratic Senators up for reelection might find troubling.