Bench Memos

NRO’s home for judicial news and analysis.

Delay Is Futile


Any Senate Democrats who think that delaying John Roberts’s confirmation will yield the Left any advantages ought to think again.

Because O’Connor’s resignation is effective only upon her successor’s confirmation, some on the Left might think that delaying Roberts’s confirmation by a month or two would mean that O’Connor rather than Roberts would be taking part in the decision of cases that the Court will hear in October and November. But as this article explains, it is settled practice that a justice cannot participate in the decision of a case unless he is a member of the Court when the Court’s decision is announced.

Here’s what this means in practice: Let’s assume that O’Connor were to take part in the oral arguments in October and November and that Roberts’s confirmation were to be delayed until mid-November. Because her resignation would take place in mid-November, O’Connor would not be able to take part in the final decision of any of the previously argued cases in which opinions had not yet been issued.

Only the non-controversial unanimous cases get decided within a month or so. Any remotely controversial case could be expected to take several months. Thus, delay would not benefit the Left.

If there are any closely contested cases in October or November in which Roberts’s vote would be dispositive and his confirmation is delayed, that delay would serve merely to disrupt the Court by requiring that the cases be re-argued.

In sum, delay is futile at best and unduly disruptive of the Court’s processes (and O’Connor’s retirement plans) at worst. Senate Democrats who have any interest in acting responsibly should therefore ensure that Roberts is confirmed in time to take part in, and prepare in advance for, the opening argument session on October 3, 2005.


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