Can the Senate Confirm a Supreme Court Nominee Before Election Day?

President Trump recently announced that he would name a nominee to fill the vacancy left by the death of Justice Ruth Bader Ginsburg this Saturday, leaving 38 days between the President’s nomination and Election Day. 

Questions have swirled whether Senate Republicans will have time to confirm the President’s nominee before the November election. Recent practice suggests confirming a justice before the election is possible but unlikely. 

President Trump’s most recent Supreme Court nominee, Justice Brett Kavanaugh, was nominated on July 10, 2018, and confirmed 88 days later on October 6, 2018. Of course, Justice Kavanaugh’s confirmation was delayed due to allegations of misconduct while in high school, leading to an additional Senate Judiciary Committee hearing day held twenty days after the Committee held four days of hearings in early September 2018. 

Nevertheless, despite the delay in Justice Kavanaugh’s confirmation, no justice has been confirmed in under 38 days since Justice Sandra Day O’Connor was confirmed on September 21, 1981, 33 days after her nomination by President Reagan. According to the Congressional Research Service, “since 1975, the average number of days from nomination to final Senate vote for [nominees receiving a final vote] is 69.6 days (or approximately 2.3 months), while the median is 69.0 days.” Justice Ruth Bader Ginsburg herself waited 42 days from nomination to final Senate vote. All seven subsequent nominees (from Justice Breyer to Justice Kavanaugh) saw over two months from nomination to confirmation. 

Of course, some confirmations move faster than others. Justice John Paul Stevens was confirmed in 19 days after President Ford nominated him in 1975. Before the Senate Judiciary Committee began formally scrutinizing nominees in the 20th century, the Senate often confirmed a president’s nominee only a few days after a nomination.  

The modern confirmation process, though, is far more structured. After a Supreme Court nominee is announced, the nomination is sent to the Senate Judiciary Committee. This committee process, as described by the Congressional Research Service, moves in three phases: “(1) a pre-hearing investigative stage, followed by (2) public hearings, and concluding with (3) a committee decision on what recommendation to make to the full Senate.” For any Supreme Court nomination, the Committee will conduct its own investigation and seek reports compiled by the FBI and other Executive Branch offices. The nominee’s record is extensively studied, and the nominee often visits Senators in their Washington offices. 

The pre-hearing phase is often the largest gap between nomination and confirmation. For President Trump’s two Supreme Court nominees—Justices Gorsuch and Kavanaugh—it took 47 days and 56 days, respectfully, between nomination and initial Committee hearings. Notably, this gap is longer than Senate Republicans would have to vote a nominee out of Committee and confirm them by Election Day. 

For President Trump’s first two nominees, initial public hearings took place over four days, with multiple rounds of Senators questioning the nominee, and witnesses—including friends, critics, and scholars—testifying to offer their opinions about the nominee. 

After the Committee favorably reports the nominee to the Senate, the nomination proceeds to the floor, where today’s Republican majority can quickly end debate and vote on the nomination. The Senate took four days to confirm Justice Gorsuch after he was favorably reported from Committee. The Senate took nine days for Justice Kavanaugh. 

There are, of course, ways to try and expedite the process every step of the way. The Senate Judiciary Committee may schedule hearings immediately after the President’s Saturday announcement; it may hold fewer hearing days; it may meet sooner after public hearings to report a nominee favorably. After, the full Senate could expedite a final confirmation vote.

However, historical practice suggests there still may not be enough shortcuts to meet an Election Day deadline.

(This post originally appeared on Legislative Procedure.)

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Topics: Legislative Procedure