According to Senator Grassley, Judge Gorsuch’s confirmation hearing will be held in six weeks. That means the hearing will be held during the week of March 13–barring any procedural delays from members of the Judiciary Committee. After the Committee votes, the full Senate would vote. When will this happen? Precisely when is unclear. Justice Kagan’s hearing wrapped up on June 30, and the Judiciary Committee voted on July 20. The full voted on her confirmation on August 5. The Sotomayor hearing followed a similar timeline. But those are poor examples, because they could leisurely take their time during the summer recess, before the first Monday in October.
Justice Alito’s confirmation–which occurred during a (less, but still) tumultuous time–is more instructive. Alito’s confirmation hearing began on January 9, 2006, and stretched 5 days. The committee vote was held on January 24–ten days after the hearing concluded. Despite a threatened filibuster by Barrack Obama, John Kerry, Joe Biden, Hillary Clinton, Harry Reid and others, Alito came for a full Senate vote one week later on January 31. So from the opening statement of the hearing, until the full confirmation vote, 22 days elapsed.
Assuming a similar timeline applies to Gorsuch’s hearing, his Senate vote would be held on April 4 (give or take). But that date only holds if everything moves smoothly. If the Democrats use various parliamentary delays, like they did with Sessions, a few more days could be added. And, if a filibuster is mounted, that will burn more time until the nuclear option is triggered. Thus, more more likely than not, Justice Gorsuch will not be able to assume office until the second week in April. (I have no doubt he, and his incoming clerks, will hit the ground running).
This confirmation date will still have allowed enough time for Gorsuch to join the Court and hear some remaining cases. Last year, U.S. v. Texas was argued on April 18. McDonnell v. US was argued on April 27.
Yet, on Friday, the Court took a confounding action. At Justice Scalia’s very last conference, on January 15, 2016, the Court granted certiorari in three cases: Murr v. Wisconsin, Microsoft v. Baker, and Trinity Lutheran Church v. Pauley. The briefing in all three cases wrapped up by August, yet as of two days ago, they still lingered in docket purgatory. They were never scheduled for oral argument, and by all accounts, they were waiting for a ninth Justice to resolve what could have otherwise been 5-4 splits. However, the Court scheduled Murr and Baker for March 20, and 21, respectively. (Trinity Lutheran remains unscheduled). Additionally, Gloucester County School Board v. GG was scheduled for March 28. I would expect the vote in this case to be tight, in light of Justice Breyer’s “courtesy” stay. Why not wait a week or two until Justice Gorsuch is in office for each of these cases?
As Tony Mauro noted in a recent piece, the tradition is that a Justice does not consider cases that were argued before he joined the Court. Rather, if the vote ties, the case is re-argued. Again, why not wait a week to avoid the prospect of 4-4 tie, followed by a re-argument the following term? This move does not make sense. Any ideas?