Acton Institute Powerblog

Explainer: Is there enough time to confirm a Supreme Court nominee before the election?

The prospect of appointing a Supreme Court justice so close to a presidential election has roiled political discourse. Is such a move unprecedented? Is it even possible? Here are the facts you need to know.

Background

Supreme Court Justice Ruth Bader Ginsburg died on September 18, just 46 days before the presidential election on November 3. President Donald Trump has said he will fill the vacancy, “most likely” with a female, naming his nominee at a press conference on Saturday at 5 p.m. EDT.

Who will President Donald Trump nominate to the Supreme Court?

The leading candidates are Amy Coney Barrett and Barbara Lagoa, with Allison Jones Rushing as a darkhorse candidate. Other women on President Trump’s 2020 list of potential Supreme Court nominees include Sarah Pitlyk, Joan Larsen, Martha Pacold, Britt Grant, Allison Eid, Kate Todd, Margaret Ryan, and Bridget Bade.

Is it possible to confirm a Supreme Court nominee in so little time?

The timeline is short but not unprecedented. The Senate confirmed Ruth Bader Ginsburg 42 days after her nomination by President Bill Clinton. The Senate gave Ginsburg near-unanimous support after four days of confirmation hearings, which featured the expert testimony of Kay Coles James (now the president of the Heritage Foundation) describing RBG’s “philosophy of judicial activism, most notably with regard to abortion” – a description that proved apt.

How long does the Senate usually deliberate before voting for a Supreme Court justice’s confirmation?

Since the court’s more contentious era began with Robert Bork’s nomination in 1987, the average time between the first day of Senate confirmation hearings and the Senate confirmation vote is 30 days. (These are calendar days, not Senate working days; congressional recesses prolonged certain nominations. The third column includes the number of calendar days between formal nomination and confirmation/rejection.)

Here are the raw data:

Nominee Days of Senate deliberation Total days
Robert Bork 39 days of Senate deliberation 106 days total
Anthony Kennedy 52 days of Senate deliberation 66 days total
David Souter 41 days of Senate deliberation 69 days total
Clarence Thomas 36 days of Senate deliberation 100 days total
Ruth Bader Ginsburg 15 days of Senate deliberation 43 days total
Stephen Breyer 18 days of Senate deliberation 74 days total
John Roberts 17 days of Senate deliberation 63 days total
Samuel Alito 23 days of Senate deliberation 83 days total
Sonia Sotomayor 25 days of Senate deliberation 67 days total
Elena Kagan 39 days of Senate deliberation 88 days total
Neil Gorsuch 91 days of Senate deliberation 66 days total
Brett Kavanaugh 33 days of Senate deliberation 89 days total

A 2020 Supreme Court nomination could take place under this time line.

To provide greater specificity:

Robert Bork was nominated by President Ronald Reagan on July 7, 1987, to replace Justice Lewis Powell Jr. The Senate held 12 days of confirmation hearings for Bork from September 15-30, 1987. The Senate denied Bork a seat on the Supreme Court by a vote of 58-42 on October 23, 1987. The phrase “Borking” entered the political lexicon, as the public square devolved to the new norm of demonizing Supreme Court nominees.

Anthony Kennedy was nominated by President Ronald Reagan on November 30, 1987, to replace Justice Lewis Powell Jr. The Senate held three days of confirmation hearings for Kennedy from December 14-16, 1987, before adjourning for the holiday recess. The Senate confirmed Kennedy by a vote of 97-0 on February 2, 1988. As of this writing, Kennedy is the last justice to be confirmed unanimously, 32 years ago.

David Souter was nominated by President George H.W. Bush on July 25, 1990, to fill the seat of Justice William Brennan. The Senate held five days of confirmation hearings for Souter from September 13-19, 1990. The Senate confirmed Souter by a vote of 90-9 on October 2, 1990.

Clarence Thomas was nominated by President George H.W. Bush on July 8, 1991, to fill the seat of Justice Thurgood Marshall. The Senate held five days of confirmation hearings for Thomas from September 10-16, 1991. However, sexual harassment allegations by Anita Hill touched off a second set of confirmation hearings from October 11-13. The Senate confirmed him by a vote of 53-48 on October 15, 1991.

Ruth Bader Ginsburg was nominated by President Bill Clinton on June 22, 1993, to fill the seat of Justice Byron “Whizzer” White. The Senate held four days of confirmation hearings for Ginsburg from July 20-23, 1993. The Senate confirmed Ginsburg by a vote of 96-3 on August 3, 1993.

Stephen Breyer was nominated by President Bill Clinton on May 17, 1994, to fill the seat of Justice Harry Blackmun. The Senate held four days of confirmation hearings for Breyer from July 12-15, 1994. The Senate confirmed Breyer by a vote of 87-9 on July 29, 1994. As of this writing, Breyer is the last justice to have been confirmed with less than 10 votes cast in opposition, 26 years ago.

Chief Justice John Roberts was nominated to fill the seat of Justice Sandra Day O’Connor on July 29, 2005, but President George W. Bush withdrew his nomination on September 6, 2005; the same day, Bush named Roberts to succeed Chief Justice William Rehnquist. The Senate held four days of confirmation hearings for Roberts from September 12-15, 2005. The Senate confirmed Roberts by a vote of 78-22 on September 29, 2005.

Samuel Alito was nominated by President George W. Bush on November 10, 2005, to fill the seat of Justice Sandra Day O’Connor. After the intervening holiday recess, the Senate held five days of confirmation hearings for Alito from January 9, 2006. The Senate confirmed Alito by a vote of 58-42 on January 31, 2006.

Sonia Sotomayor was nominated by President Barack Obama on June 1, 2009, to fill the seat of Justice David Souter. The Senate held four days of confirmation hearings for from July 13-16, 2009. The Senate confirmed Sotomayor by a vote of 68-31 on August 6, 2009.

Elena Kagan was nominated by President Barack Obama on May 10, 2010, to fill the seat of Justice John Paul Stevens. The Senate held four days of confirmation hearings for Kagan from June 28-July 1, 2010. The Senate confirmed Kagan by a vote of 63-37 on August 5, 2010.

Neil Gorsuch was nominated by President Donald Trump on February 1, 2017, to fill the seat of Justice Antonin Scalia. The Senate held four days of confirmation hearings for Gorsuch from March 20-23, 2017. The Senate confirmed Gorsuch by a vote of 54-45 on April 7, 2017.

Brett Kavanaugh was nominated by President Donald Trump on July 10, 2018, to fill the seat of Justice Anthony Kennedy. The Senate held four days of confirmation hearings for Kavanaugh from September 4-7, 2018. The Senate convened another one-day hearing on September 27 to discuss allegations that Kavanaugh engaged in sexual misconduct against Christine Blasey Ford when he was a minor. Sen. Jeff Flake, R-Ariz., demanded an additional one-week delay for the FBI to investigate Kavanaugh. The Senate confirmed Kavanaugh by a vote of 50-48 on October 2, 2018.

That comes to a total of 357 calendar days of Senate deliberations between the confirmation hearings and the vote for 12 nominees, or an average of 29.75 days per nominee.

How does that compare to the 2020 election?

There are 39 days between Monday, September 28 and election day 2020.

Has any part of the confirmation process changed during this time?

The confirmation process has become streamlined since 2017. In November 2013, then-Senate Majority Leader Harry Reid effectively eliminated the filibuster for judicial nominees except Supreme Court nominees. This lowered the vote necessary to end debate and proceed to a vote, known as cloture, from 60 votes to 51. In 2017, Majority Leader Mitch McConnell applied that rules to Supreme Court justices beginning in April 2017. One would expect confirmations to take less time as a result.

Bottom line: Beginning the Senate confirmation hearings expeditiously would give senators the same amount of time to deliberate about the nominee’s answers as usual – longer than some, including the late Ruth Bader Ginsburg.

(Photo credit: Public domain.)

Rev. Ben Johnson

Rev. Ben Johnson is Executive Editor of the Acton Institute's flagship journal Religion & Liberty and edits its transatlantic website.