Approaching the Bench

Here’s what to expect after President Biden’s announcement that he intends to nominate a Supreme Court justice to replace retiring justice Stephen Breyer by the end of February:

  • On average it takes two to three months from nomination to confirmation in the Senate.  Senator Chuck Schumer has also expressed interest in moving as quickly as possible given the 50-50 nature of the Senate.  
  • It’s likely the nominee will be someone who has been already confirmed by the Senate (probably during this Congress).  
  • The Court will need Justice Breyer until all the opinions from this term are issued (which usually wraps up mid-June) before he can retire and the new justice can formally be sworn in. However, the Senate can confirm the nominee before Justice Breyer retires. It appears Majority Leader Schumer would like the nominee confirmed before the April recess beginning April 11. 
  • With a 50-50 Senate, any nominee will need to invest in securing  all Democratic votes. You may also see Sens. Susan Collins, Lisa Murkowski or perhaps Mitt Romney also support the nominee. Here are the timelines of some recent nominees:
    • Amy Coney Barrett: nominated in eight days, confirmed 27 days after that.
    • Brett Kavanaugh: nominated in 12 days, confirmed 88 days later. 
    • Neil Gorsuch: nominated 11 days after Trump took office (but almost a year after Antonin Scalia’s death), confirmed 65 days later. 
    • Elena Kagan: nominated in 31 days, confirmed 87 days later.