The Washington press corps, particularly we lucky folk who get to cover Capitol Hill, is girding for yet another nominee to the high court, only this time, we know it's coming. Justice John Paul Stevens has made it clear in a number of interviews. In fact, he told New Yorker's Jeff Toobin on March 8 that an announcement would come in "about a month" (remember, the longtime justice turns a very young 90 years old on April 20 -- a date etched in calendars everywhere). Shiver...
In just six short years, we've lived through FOUR nominees...well, Harriet Miers, President Bush's, uh, mistake, really only lasted a short time, but still -- it helped to press the grass down on what is now a fairly well-worn path.
So, here's roughly what you can expect after the initial flurry (and let's face it, no one knows who will be chosen) based on countless background briefings over the past handful of years, including the inimitable Mike O'Neil who was once chief counsel to then-Judiciary Chairman Arlen Specter of PA (when was still a Republican).
A little more than a month will pass, if past is prologue, from resignation to nomination, though President Obama has been through this process already -- so that time period could shorten significantly, if he's already ready to pull the trigger. One calculus that has clearly changed -- the makeup of the Senate. With the ascension of Sen. Scott Brown, R-MA, to the chamber, and the loss of a filibuster-proof majority (even though it's WAY too early to speculate about what Republians might do -- well, ok, we'll speculate anyway), Democrats could require a compromise candidate...someone more middle of the road.
BUT -- President Bush got both John Roberts and Samuel Alito through with the support of enough Democrats, so who knows...I can't help but think, though, that few things galvinize and unify Republicans more than a good ole fashion scrappin' over a judicial nominee.
It generally takes about 40 or so days for the Judiciary Committee to conduct its own review of the nominee --- an investigation that involves a pretty detailed questionnaire, interviews with people the nominee knows, a review of speeches, writings, etc. It's a lengthy, thorough process that also involves a review of the candidate's FBI background check. (Only the Judiciary Committee members & select staff can review this, a practice implemented by Joe Biden years ago when he was committee chairman).
In the meantime, just after the nominee is announced, the Capitol is engulfed in a feeding frenzy as the person must brave a gauntlet of press as he/she makes courtesy calls first to committee members (chairman, ranking member) then to key moderates, then to every other member.
The nominee's hearing generally lasts about a week or so. Day 1 is reserved for opening statements from all (yawn) committee members (yawn), and also the nominee. Days 2 & 3 are when we get to the good stuff -- the Q&A. Inevitably, the minority tries to get the nominee to divulge how they would rule on a particular case or how they feel about a particular issue, like abortion. "Is Roe vs. Wade settled law?" or Specter might just try to drag out his "super duper precedent" --- save us.
About a week later, the committee votes and the nomination, one way or another, (this committee is now 13-7 Dems to GOP) is sent to the Senate floor --- barring something completely unforseen.
Assuming the GOP mounts a filibuster --- at least one person objects to proceeding forward with the nominee -- Majority Leader Harry Reid, D-NV, could have to jump through a number of procedural hoops to get to final passage. That could take maybe 2 weeks or so --- and generally does, from the time the committee votes.
On average, it takes about 72 days from nomination to confirmation.
And just to cover all bases -- I want to note one possible wrinkle in the Senate vote that has been contemplated (and nearly used) by Republicans in the past.
It is the real "nuclear option" --- or what proponents call, "the Constitutional option."
If Reid is facing a dug-in filibuster and cannot muster the 60 votes (hard to imagine -- especially with moderate Republicans like Susan Collins and Olympia Snowe, both of Maine), he does have a possible secret weapon.
Back in 2005, then Senate Majority Leader Bill Frist, R-TN, with Republicans up in arms over blocked judicial nominees, argued that the Constitution commands the Senate to deliver "consent" on nominees; therefore, the argument continued, no nominees should be filibustered.
The nuclear option, generally, would inolve the Presiding Officer (possibly VP Biden) declaring the chamber's cloture rule (which is what permits a filibuster) unconstitutional. The rule would then be set aside. Any moves to object could be tabled, or killed, by a simple majority.
The nominee would then get an up or down vote. (There's another option that allows a senator from the floor to raise a constitutional point of order. It involves basically the same process.)
Still, it's important to note that no one has even remotely raised this specter, particularly in the wake of Democrats using a budgetary tactic to get an overhaul of the nation's health care system through Congress. The atmosphere is highly partisan now. It would likely be in the stratosphere, should anything like this come to fruition.