Senate Judiciary Committee Chairman Lindsey Graham has announced that hearings for Judge Amy Coney Barrett’s Supreme Court nomination will begin Oct. 12 and last three to four days. There’s no reason Barrett can’t be confirmed before the election.
Four days would follow a pattern that has been in place since Ruth Bader Ginsburg herself was appointed to the court in 1993 (Brett Kavanaugh had an extra day three weeks after his initial hearings in 2018, and John Roberts, having been nominated for chief justice, had an extra day in 2005).
Graham also indicated he hopes his committee can vote on the nomination by Oct. 26, which would allow time for a vote by the full Senate later that week. Supposing that vote took place on Friday, Oct. 30, there would be 18 days from the beginning of hearings to the confirmation vote.
This too would be typical: It was 18 days for Neil Gorsuch, 24 for Sonia Sotomayor, 22 for Samuel Alito, 17 for Stephen Breyer, and 14 for Ginsburg. Elena Kagan’s vote was 37 days after her hearings began in 2010 partly because of the Senate’s July Fourth recess. Kavanaugh’s vote was 32 days later because of the extra day of hearings, but it was only nine days from the end of his hearings to his confirmation vote.
So far, the process Senate Republicans have announced is perfectly consistent with the process their Republican and Democratic predecessors followed for the last three decades and four presidencies. If these timelines suggest an effort to “jam through” a nomination, then most of the present Supreme Court was jammed through by one Senate or another.
To be fair to Joe Biden, however, there is one period associated with the nomination that we haven’t yet considered: the time from the nomination to the beginning of hearings. This, if anywhere, is where the process has been truncated.
This Nominee Has Already Been Vetted
For the members of the present court, including Ginsburg, the shortest period from nomination to hearings was 28 days, and that was for Ginsburg herself. If we go back through all 14 previous nominations of the post-Roe v. Wade era, during which time the contemporary process of confirmation has developed and the political energy around it has increased, we find two shorter periods.
It was eight days from the nomination of Justice John Paul Stevens to the beginning of his hearings and 21 days for Justice Sandra Day O’Connor. Graham’s timeline allows for 16 days from the nomination to the beginning of the hearings.
What is the purpose of this period? In recent decades, political campaigns have been launched to try to influence public opinion or put pressure on politically vulnerable senators, but the essential “advice and consent” purpose is to research the nominee’s record and assemble a list of suitable questions and witnesses for the hearings. Can that be done in 16 days?
The answer to that question depends on the particulars of the case. Had President Donald Trump never announced a list of possible Supreme Court nominees and chosen a candidate who was relatively unknown with a record that had never been seriously vetted, 16 days would probably be too little time to prepare properly for the hearings.
The circumstances of Barrett’s nomination are very different, however. Barrett went through the confirmation process with almost the same Senate Judiciary Committee just three years ago for her seat on the 7th Circuit Court of Appeals. She was approved by the committee on a party-line vote 11-9 on Oct. 5, 2017.
Of the 22 senators presently on the Senate Judiciary Committee, 17 were on the committee then. Those who weren’t on the committee then include Republicans Marsha Blackburn, Joni Ernst, and Josh Hawley, and Democrats Cory Booker and Kamala Harris.
This confirmation was no rubber-stamp approval, as both the vote and any account of the hearings make clear. Moreover, although it was not a Supreme Court nomination process, it nevertheless involved an examination of her record up until just three years ago. In other words, there is relatively little new material to be examined.
Barrett Is No Surprise Pick
Shortly after Barrett’s previous confirmation, Trump added her and three others to his list of potential Supreme Court nominees, lengthening the list to 25 names. For almost three years, Democrats, Republicans, pundits, academics, nonprofits, and everyone else has been on notice that she could be nominated for a Supreme Court opening during the Trump presidency. It would be political malpractice for those with any special responsibility in this area not to be prepared, at least in a general way, for such a nomination.
During the summer of 2018, Barrett was widely considered to be on Trump’s shortlist for the nomination to replace Justice Anthony Kennedy, a nomination that, of course, ultimately went to Kavanaugh. For example, a New York Times article from June 27, 2018, identified six “frontrunners” from the candidates on Trump’s list, including Barrett.
Not only was Barrett on the list of 25 possible nominees, but she was understood to be on a shorter list of the most likely ones. In fact, the choice of Barrett in this case was perhaps the least surprising nomination in a generation. Once Trump said the day after Ginsburg’s death that he would nominate a woman to fill the vacancy, speculation immediately centered on Barrett.
Assessing the language of the Constitution on the process whereby Supreme Court appointments are made and the historical record on the timing of announcing, vetting, and voting on nominees likely will do very little to sway Democrat senators to change their minds on Barrett. Instead, we can expect continued references to what some of the senators’ Republican counterparts were saying with regard to election-year nominations in 2016, albeit the circumstances were far different.
A Republican president nominating a judge to be confirmed by a Republican-controlled Senate is different from the executive branch and the upper chamber being controlled by opposing parties. President Barack Obama was free to make a Supreme Court nomination in 2016, but since the confirmation never would have gone through, a hearing would have been a waste of time.
This is all the more reason for advocates of the Barrett nomination to double-down on defending the confirmation process on constitutional grounds. The rule of law, not rhetorical inventions and pleas of partisans, should guide the means by which we live out our political process.