Bench Memos

Law & the Courts

Confirmation Can Be Both Swift and Thorough

As a senior Judiciary Committee staffer to Senator Orrin Hatch, I was the lead Republican staffer on the nomination of Ruth Bader Ginsburg to the Supreme Court in 1993. President Clinton formally nominated Ginsburg on June 22, 1993. The Judiciary Committee hearing began less than a month later, on July 20, 1993. And the full Senate confirmed Ginsburg’s nomination on August 3, 1993—42 days after she was nominated.

At the time of Ginsburg’s nomination, she had served on the D.C. Circuit for 13 years, had written more than 700 opinions, and taken part in hundreds of other cases. That of course was on top of her many briefs as an ACLU litigator and her numerous speeches and articles. The Senate of course hadn’t had any occasion to examine her record since her confirmation in 1980.

None of this prevented a swift confirmation. Committee Republicans didn’t complain that the process was being rushed.

From the candidates being most talked about for the new vacancy, it appears that President Trump will nominate someone whom the Senate very recently—within the past one to three years—confirmed to a federal appellate judgeship. The Senate Judiciary Committee will already be very familiar with that nominee’s record up until that time, and the opinions that the nominee has written since then will be very small in number compared to Ginsburg’s many hundreds. So there is no reason that the process should take very long.

Data on average time to confirmation of recent nominations obscures the fact that the Senate often operated at considerable leisure (taking the usual recesses, for example), concerned only with acting in time so that the newly confirmed justice would be seated and prepared when the October term of the Court began.