Bench Memos

The Question of Timing

From various quarters we hear that President Obama is closing in on his choice of a nominee to succeed Justice David Souter on the Supreme Court.  The president told Democratic senators on Wednesday that he would be reviewing names over this weekend, which has led some to expect an announcement next week.  But earlier today, the White House said that the president has not yet interviewed any candidates for the nomination–and he can hardly be expected to make an announcement before he meets at least one of them.  National Journal’s new blog dedicated to this story, “The Ninth Justice,” reported a few hours ago that on Sunday, both the president and Judge Diane Wood will be at the Westin Hotel in Indianapolis–he for fundraisers, she for a Seventh Circuit conference.  It’s hard to believe that a meeting won’t be arranged.

All of this has led me to muse about the matter of timing in the coming nomination, and the struggle that will inevitably ensue once it has been made.  The timing of the nomination has in some ways been forced by the timing of Justice Souter’s announcement that he will retire.  I think Ed Whelan was on to something when he remarked recently here that Justice Souter probably wanted to keep his pending retirement unannounced until the Court’s current term ends in June–that he was doing the Obama White House a favor by giving the administration a heads-up, providing them plenty of time to find his successor quietly–and that it was the White House that leaked the news and caused Justice Souter to tender his public letter.

Ed is also right, I think, to note that whoever leaked this news and started one of the capital’s biggest current stories “didn’t do President Obama any favors.”  The best course of action for the White House, I think, would be not to nominate anyone until the final day of the Court’s term has come and gone.  Yes, that may be a month from now, but typically a number of important–and often closely-divided–rulings come down in the Court’s final days.  If the president’s nominee is known at that time, the temptation will be overwhelming for observers of those last decisions to ask the question, “How would this case have come out if Nominee X were on the Court now instead of Justice Souter?”  It’s true that such a question can always be asked in retrospect when a nominee is named after the term is over.  But somehow questions asked in retrospect do not carry the same sense of lively importance, of immediacy, as questions asked about this case that has just come down this minute.  And even the nominee himself (or herself) is likely to be pestered with importunate queries on such matters–which the nominee will of course decline to answer, but which will nonetheless hang in the air for everyone else to speculate about.

Could the White House hold out another month without choosing someone?  If a nominee is soon chosen, could the president’s staff keep that from leaking?  Both prospects seem unlikely.  Whether by the administration’s choice or not, we will probably know the name of a nominee before May is over.  And then the real fun will begin that makes everything so far seem like a warm-up act.

Evidently the president and Senate majority leader Harry Reid want to have a nominee confirmed by the time the Senate takes its summer recess, scheduled to begin on August 7.  The sooner a nomination is announced, the more easily such a target date could be met.  But minority leader Mitch McConnell, quite reasonably, wants 60 days to pass before hearings convene in the Judiciary Committee, in order to prepare properly for those hearings and the debate that will follow.  Dial forward 60 days even from this Monday, and we’d be talking about hearings convening on or about Monday, July 20–which would make it impossible to complete the hearings and all post-hearing follow-up inquiries, plus floor debate, and finish with a vote on the nomination by the Senate by August 6, just seventeen days later.  Senators are loath to give up or shift their August recess, or to shorten it by returning before Labor Day.  But suppose a nomination is announced (or leaked and the story confirmed) before Memorial Day.  Is the White House prepared for klieg-light scrutiny of its nominee from Memorial Day to Labor Day, before confirmation hearings even commence?

It may have to prepare for just that.  Yep, that leaker in the White House sure made a mess.

Matthew J. Franck is the Director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute in Princeton, New Jersey.

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