From 'don't ask, don't tell' to her beliefs on executive power.

Tom Goldstein is a partner at Akin Gump Strauss Hauer & Feld, and lecturer at Stanford and Harvard Law Schools. He is the founder of SCOTUSblog, where this piece was originally posted.



Here is how I think the nomination process is likely to play out. I divide it into process and substance.

First, the process: Note the relationship between Monday’s announcement and the Senate calendar. There are seven weeks between Monday and June 28. Six to seven weeks is traditionally regarded as the minimum amount of time between a nomination announcement and hearings before the Senate Judiciary Committee. June 28 marks the last week the Senate is in session before its July 4 recess, which runs from Saturday, July 3 to Sunday, July 11. So, tomorrow’s announcement is timed to permit hearings to be conducted prior to the recess, if (and it’s a big if) the Senate Judiciary Committee agrees.

Whether they will agree will depend on a number of factors. Kagan’s relatively short paper trail--note the contrast with the nearly two decades of decisions by Sonia Sotomayor--means there is less to review, and thus less time is required prior to the start of hearings. Kagan was also recently confirmed by the same committee as Solicitor General.

Senate Democrats will prefer to move the process forward quickly for two reasons: so that Kagan is not “left hanging” for nine weeks before she appears before the committee; and so that the nomination can be moved forward to make room in the calendar for legislative efforts. On the other hand, Republicans, as the opposition, will prefer delay because as more time passes there is a greater chance that something will emerge that justifies defeating (or at least undercuts) the nomination.