No Rest for Kavanaugh as He Awaits Confirmation Vote

U.S. Supreme Court nominee Brett Kavanaugh’s confirmation seems all but certain. But that doesn’t mean he’s taking it easy.

The Supreme Court is set to kick off its 2018 term on Oct. 1, just days after the Senate plans to vote on his selection.

If seated, his first high court oral argument sitting will be packed with cases ranging from separation of powers to disabilities law to the nitty-gritty of what constitutes a “robbery.”

And then there’s the issue of staffing, William Jay, partner at Goodwin Procter LLP, Washington, told Bloomberg Law. Not only would he need to set up a chambers, but he’d also need to find a home for his D.C. Circuit clerks, Jay said.

While David Lat, founder of the legal blog Above the Law, said “the die is cast,” Jay said there is still a possibility that Kavanaugh could be called to meet with senators who are still on the fence about his confirmation.

The Senate Judiciary Committee has scheduled a vote on Sept. 20. Once cleared by that panel, the full Senate would take up the nomination in short order.

The numbers are looking good for Kavanaugh and his Republican backers who hold a 51-49 majority in the Senate. But after bruising confirmation hearings, it’s still unclear whether two moderate Republicans, Susan Collins of Maine and Lisa Murkowski of Alaska, will fall in line with the rest of their party, or if a few Democrats in tough reelection fights will throw their support behind the nominee. In the event of a tie, Republicans can call on Vice President Mike Pence to swing the vote their way.

Busy Weeks

Kavanaugh “must be exhausted after the events of the past few weeks,” Lat said.

President Donald Trump nominated the 53-year-old to the high court on July 9.

From July 11 to Aug. 23, he met with 65 senators, Justice Department spokeswoman Kerri Kupec said.

At the same time, he was preparing for his four-day confirmation hearings, which wrapped up Sept. 7. He sat through more than 30 hours of opening statements and questions. Many were from Democrats fiercely opposed to his nomination.

Following the hearing, Kavanaugh was focused on responding to more than 1,100 written follow-up questions submitted by Senate Judiciary Committee members, Kupec said. Those answers were submitted Sept. 12.

Opening Day

But while Kavanaugh may be ready for a vacation, he’s not likely to get one anytime soon.

The court’s opening day is coming on fast. And, if confirmed, Kavanaugh will likely be ready to go on Day 1, former Solicitor General Gregory Garre, now of Latham & Watkins LLP, Washington, said at a Sept. 12 event.

That’s what happened with Chief Justice John G. Roberts Jr., who only had a few days in between confirmation and the start of the next Supreme Court term, Jay, who worked on Roberts’ confirmation, said.

Roberts was confirmed on a Thursday and he took the bench well prepared on the next Monday, Jay said.

Kavanaugh already pays a lot of attention to Supreme Court cases in his current job as judge on the U.S. Court of Appeals for the D.C. Circuit, Jay said. So he’s probably already familiar with a number of the cases before the high court.

But he’ll likely be closely reading the dozens of party and amicus briefs in the 10 cases on the court’s October calendar. That includes a separation of powers challenge to the Sex Offender Registration and Notification Act that could revive the “non-delegation” doctrine and a plea to overturn a more than 30-year-old precedent on federal takings remedies.

Missing Conference

Kavanaugh will, however, miss the court’s “long conference,” which is set for Sept. 24.

The justices typically grant several cases for the term out of the long conference, in which they consider all the petitions that have been piling up since concluding their previous term at the end of June.

The eight current justices will probably continue as normal during that conference, only holding over cases if they only need one additional vote to grant review, Jay said.

Help Wanted

But Kavanaugh has some housekeeping to deal with, too.

His chambers will have to be up and running shortly after he’s confirmed. And while that’s not many people—two secretaries, a messenger, and four clerks— he’s also got to find a home for his D.C. Circuit clerks, Jay said.

Kavanaugh is likely to take some of those clerks with him, while finding another D.C. Circuit judge to take on the rest, Jay said, noting that’s what Roberts did.

Kavanaugh might pick up some of Justice Anthony M. Kennedy’s four clerks, too.

‘Hoping and Praying’

Although there will certainly be last-minute attempts to trip up Kavanaugh’s confirmation, Lat said “there’s not much he can do to affect his fate.”

But Jay said that it is possible that the the White House might make Kavanaugh available to a senator that is truly on the fence. But we’re not likely to see the entire entourage parading into and out of senators’ offices like we did with the pre-hearing courtesy meetings, he said.

Other than that, “I think most of his energies between now and the vote will be devoted to hoping and praying,” Lat said.

(Corrected details about William Jay’s career and spelling of Justice Department spokeswoman Kerri Kupec’s name)

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com