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Respect for a Coordinate Institution

By Jack M. Balkin

Apparently some Republican leaders in the Senate are thinking about doing what they can to delay Judge Sotomayor's nomination hearings until September, asserting that they need the time between now and then (rather than between now and July) to study all the opinions she rendered as a district judge and as a judge of the court of appeals. (Whether the latter group includes all the cases in which she sat on a panel is unclear to me from the reports I saw.) I've also seen reports that Senator Cornyn has said that Republicans don't have the votes to mount a filibuster.

If Senator Cornyn's right, I wonder whether efforts to delay the hearings -- if there are such efforts -- demonstrate appropriate respect for the Supreme Court.

The assumption seems to be that Judge Sotomayor will be confirmed (absent the disclosure of some personal scandal -- and perhaps delay is "justified" on the ground that the longer you take, the greater the chance that something will turn up, in Dickens's phrase). If that's so, though, it would seem to make sense from the point of view of running a government to get her at her post sooner rather than later, especially if, as most people assume, the votes she casts aren't going to be dramatically different from those Justice Souter has cast. Delay puts a burden on the Court (for a short time, admittedly), and what it gains seems to me quite unclear, aside from some possible partisan advantages (and even that possibility seems to me not that large).

Full post as published by Balkinization on June 02, 2009 (boomark / email).