Supreme Court nominee Merrick Garland, center, has multiple options when it comes to his current job as a federal appeals court judge. | AP Photo Supreme Court nominee dilemma: What about the day job?

The all-but-certain prospect of a protracted battle over President Barack Obama's Supreme Court nominee Merrick Garland is raising a key question for him and for the White House: What to do about the day job?

As a sitting judge on the D.C. Circuit, Garland can choose from several options, which include not hearing new cases, dropping all his pending work, keeping up business as usual, or — in theory — quitting the bench altogether.


Normally, a Supreme Court nomination triggers such a flurry of activity for the nominee that he or she has little time for their day-to-day work. Preparing for Senate hearings involves weeks of reading up on potential topics of questioning. Numerous mock hearings sometimes called "murder boards" are also a central part of the routine.

The last sitting judge named to the high court, Justice Sonia Sotomayor, appears to have stopped her work on the 2nd Circuit soon after she was nominated. An order issued in one of the cases she was handling just days after her nomination says she "was removed from the panel." No explanation was given.

The first hints of Garland's approach to this conundrum came just a few hours after his nomination and ahead of a handful of Hill meetings with lawmakers from both parties, as the D.C. Circuit announced Garland had been replaced on two cases he was scheduled to hear Thursday morning. He was also removed from panels hearing cases Friday and next week, but remains assigned to two days of arguments in mid-April.

Experts say there's no ethical requirement that a Supreme Court nominee give up hearing or deciding cases while his or her nomination is pending, but practical reasons seem to have driven most nominees in recent years not to hear new cases.

Normally, that would leave little time for other work. But with Senate Majority Leader Mitch McConnell totally committed, at least for now, to blocking any nominee during the remaining 10 months of Obama's term and all 11 Republicans on the Senate Judiciary Committee likewise pledging to oppose hearings for Obama's pick, the new nominee may have more time on his hands than usual.

"This is a unique situation because of the Republicans' refusal to consider a nominee," said New York University law professor Stephen Gillers, a legal ethics scholar. "What's unusual here, of course, is that the time between naming a nominee and confirmation can be rather long and I would expect that the nominee, unlike in the usual case, will keep on deciding appeals, including new ones."

However, during a drawn-out battle, the nominee can bank on an unusual level of scrutiny. Sen. John Cornyn (R-Tex.) drew headlines last week when he said that he doubted many lawyers would want to face such an extended time in limbo.

"I think they will bear some resemblance to a piñata," Cornyn said. "There is no guarantee, certainly, after that time they're going to look as good as they did going in."

While some of that scrutiny will be devoted to a Garland's record, others will be looking closely at the nominee's set of pending cases. If he continues working from the bench, the national spotlight would descend on every argument session they conduct and every decision they hand down.

Garland was slated to sit on a three-judge D.C. Circuit panel Thursday morning hearing two cases, including a notable dispute over whether the full text of a controversial Senate report on CIA interrogation practices should be processed for public release. He was replaced by another Clinton appointee, Judge David Tatel. The court announced no reason for the change. A clerk had no immediate comment on whether Garland plans to step off all cases set for argument.

One potential for slight awkwardness if Garland had showed Thursday has apparently been avoided: a public appearance with one of his colleagues on the panel, Judge Sri Srinivasan, who is said to have been the runner-up for Obama's latest Supreme Court nod.

It's unclear how considerations about pending cases could have affected Obama's choice. The most obvious issue involved Srinivasan, who is assigned to a panel set to hear argument in early June on a key aspect of the Obama Administration's effort to fight climate change: new rules for coal-fired power plants.

If Srinivasan ever made it to the Supreme Court, he might have had to recuse himself on the issue, creating the possibility of a 4-4 tie. If he stepped off the case in the D.C. Circuit, he might have effectively handed the administration a defeat on the issue and he still would likely have had to recuse at the high court since he already took part in a preliminary ruling on the case.

One clear temptation for the White House would be to simply ask Garland or any potential nominee what he or she planned to do about their pending cases during what could be a long confirmation (or non-confirmation) hangout. But experts say it would be ethically improper for the White House or any of the judges to engage in such a discussion, since the U.S. government is party to the climate regulation dispute and dozens of other cases pending before a sitting judge at any given time.

"I don't think it would be proper for the Department of Justice or the White House or the president to talk about that," said Chapman University law professor Ronald Rotunda, another legal ethics specialist. "You're not supposed to be picking up the horn and asking a judge, 'What are you going to do?,' even on procedural things....And you don't do it with the wink of an eye either."

A White House spokeswoman declined to comment Wednesday on whether Obama or other officials talked to Garland or Srinivasan about their plans for their D.C. Circuit work in the event of a nomination.

A judge's extended wait in the Supreme Court's on-deck circle is also certain to draw intense scrutiny of every decision a nominee issues in the meantime, with advocates looking for any sign that the nominee is coloring his rulings to try to appear more palatable to the Senate.

"One might say they might be holding back on an opinion, but they're not supposed to do that," Rotunda said. "They're just supposed to do their jobs."

Second-guessing of a pending nominee's decisions is more than just a theoretical possibility. During the contentious battle over President Ronald Reagan's nomination of D.C. Circuit Judge Robert Bork to the Supreme Court in 1987, Bork drew attention by reversing himself in a case over the EPA's duty to regulate cancer-causing emissions from plastics factories. In a ruling the previous year, Bork sided with the EPA Administrator's decision that such rules would be too expensive to enforce.

However, with his nomination pending in the Senate, Bork did a 180-degree turn and wrote an opinion for a unanimous en banc court holding that the EPA hadn't taken adequate account of the health issues involved.

The change fed into Democratic Senators' arguments at Bork's Judiciary Committee hearing that he had undergone a "confirmation conversion," where he allegedly retreated from some of his most controversial views while his elevation to the high court was under consideration. The Senate ultimately voted, 58-42, to reject Bork — a move which still fuels GOP resentment about the process nearly 30 years later.

Another reason a judge-nominee might want to keep up appearances at the day job: some might publicly question why a no-show judge is even being paid.

"No one has asked whether nominees who are sidelined in this way should continue to get paid because the confirmation process ordinarily takes only a few months," Gillers observed.

Others noted that judges have continued to be paid even when indicted or in jail, so merely slowing down or stopping work because of a pending nomination to another court wouldn't necessarily cut off a judge's paycheck.

The demands of even a futile nomination might suggest the nominee ease up on work and then return to it, but that carries its own price: popping back up on the appellate bench could be seen as throwing in the towel on the high court bid.

Two appeals court judges who successfully ascended to the Supreme Court under President George W. Bush, D.C. Circuit Judge John Roberts and 3rd Circuit Judge Samuel Alito, continued to issue some rulings after their nomination. However, In Alito's case, three of those opinions from his 3rd Circuit post look to have been held back while his Supreme Court nomination was pending. They emerged on January 31, 2006, the same day the Senate voted to confirm him, 58-42.

Nearly two months after Roberts was confirmed to the high court, he joined in a notable D.C. Circuit ruling upholding Congress's ban on D.C. enacting a commuter tax for those who live outside the city. However, about a month later, the appeals court issued a decision declaring that the new chief justice was "recused" from a case he heard before being nominated about the Federal Trade Commission's power to regulate attorneys. The opinion was issued by the two remaining judges on the panel and did not explain precisely why Roberts backed out.

At the beginning of the showdown over the current vacancy, the White House and the nominee may be eager for all the publicity they can get, as the president tries to push GOP senators to drop their so-far steadfast opposition to any hearing. Numerous courtesy calls to Democratic senators are expected over the next weeks.

If the current standoff lasts through summer, it is likely to become more overtly political as Democrats call for Republican Senators opposing hearings to be defeated in the fall. At that point, the nominee may want to recede a bit.

Still, optics-wise, the federal bench isn't a bad place to hide out during a difficult confirmation process. The D.C. Circuit doesn't permit videotaping, so there's likely to be little more than a sketch and news accounts of whatever Garland does on the bench.

While serving as a judge and a Supreme Court nominee at the same time may be awkward, some veterans of nasty confirmation fights say it could be worse. While a federal judge has a life-tenure post to remain in and return to, a judicial nominee working at a private law firm would likely have to avoid taking on new clients and perhaps stop work for current ones as well, said Tom Korologos, a Reagan White House aide.

"A guy [like that] really can't do anything in the firm," Korologos said.