Justice Delayed

Ninety days have elapsed since Justice John Paul Stevens submitted his letter of resignation to the President on April 9, 2010. Thirty days later, on May 10, the President nominated Elena Kagan to fill the vacancy. An additional sixty days have passed and the seat remains vacant. How long does it take to fill a Supreme Court vacancy? A recent Congressional Research Service report, Speed of Presidential and Senate Actions on Supreme Court Nominations, 1900-2010, examines the nomination-and-confirmation process (from when the President first learned of a vacancy to final Senate action). It concluded that the process has generally taken almost twice as long for nominees after 1980 than for nominees in the previous 80 years. From 1900 to 1980, the entire process took a median of 59 days; from 1981 through 2009 (when the most recent Supreme Court appointment was completed), the process took a median of 111.5 days.

A Wall Street Journal article, Supreme Court Nomination Timelines, which has a timeline of the confirmation process for the current court, says that Justice Clarence Thomas had the longest process from nomination to confirmation at 107 days, but his nomination was slowed by the harassment allegations of Anita Hill. John Paul Stevens had the swiftest process at just 19 days from his nomination to Senate confirmation.

Since 1980 Presidents have moved more quickly in announcing nominees after learning of vacancies (a median of 18 days compared with 34 days before 1980). But the Senate portion of the process (i.e., from the nomination announcement to final Senate action) now appears to take much longer than before (a median of 80.5 days from 1981 through 2009, compared with 17 days from 1900 through 1980). Most notably, the amount of time between the nomination announcement and first Judiciary Committee hearing has more than quadrupled--from a median of 12.5 days (1900-1980) to 50.5 days (1981-2009). The confirmation of Supreme Court Justice Sonia Sotomayor in 2009 illustrated the lengthier overall time frame for recent Supreme Court appointments. Forty-eight days elapsed between President Barack Obama's announcement of Sotomayor's selection and the start of Judiciary Committee hearings on the nomination. The entire interval from the time at which the President apparently first learned of the vacancy until final Senate consideration lasted 97 days.

Now that the Senate Judiciary Committee has held its hearings on the Kagan nomination, it is expected to vote in favor of her nomination when the Senate returns from its recess on July 12. When the Committee forwards the nomination to the Senate for an eventual confirmation vote, perhaps by August 6, the last day before the Senate takes its month-long August recess break, the process for the Kagan nomination will have lasted close to 120 days.

For further reading on the history of the appointment process for the Supreme Court, the Brooklyn Law School Library has in its collection Justices, Presidents, and Senators: a History of the U.S. Supreme Court Appointments from Washington to Bush II by Henry J. Abraham (Call #KF8742 .A72 2008), a history of the 110 members of the Court. Justice Sotomayor is the 111th Justice on the Court. If confirmed, Elena Kagan will be the 112th Justice.