President Joe Biden’s Supreme Court appointment could be a net-negative for his judicial legacy, as the confirmation process will gum up the works for lower court nominees awaiting hearings and final votes.
Senate Democrats confirmed more than 40 Biden nominees in 2021, but that lively pace will grind to a halt once the Senate Judiciary Committee turns its attention to the president’s Supreme Court pick. And with Republicans favored to take control of the Senate in November, time is running out for Biden to stack the courts with a new generation of young, ideological progressives.
“Supreme Court confirmations generally take about two months, sometimes faster, from nomination to confirmation,” said Mike Davis, a former nominations chief for Sen. Chuck Grassley (R., Iowa). “And the lower court nominations generally get put on the back-burner and all eyes—and resources—focus on the Supreme Court nominee.”
A prompt and orderly confirmation will provide a badly needed boost for Biden, whose approval is slipping with Democratic voters, according to recent polling. Given the stakes of the Supreme Court nomination, lawmakers and staff on the Judiciary Committee will concentrate on the nominee at the exclusion of almost all other panel business. They’ll collect and review the candidate’s entire paper trail in excruciating detail, stretching back to law school and their earliest days in practice. For example, Justice Brett Kavanaugh’s nomination meant the committee needed to review a decade’s worth of judicial opinions and tens of thousands of emails and documents Kavanaugh produced as a government lawyer.
The scale of Kavanaugh’s record was a strike against picking him—Senate Minority Leader Mitch McConnell (R., Ky.), who was then serving as majority leader, warned former president Donald Trump that Kavanaugh’s nomination would take too much time and stall other nominees.
Once production and review is completed, the confirmation hearing itself runs about a week, with lengthy question-and-answer periods for each lawmaker and supplemental testimony from advocacy groups and subject-matter experts.