When will Judge Ketanji Brown Jackson be confirmed to the Supreme Court? Next steps in Senate process

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Supreme Court nominee Judge Ketanji Brown Jackson’s confirmation hearings concluded Thursday, and the timeline for when she may be confirmed is beginning to crystallize. 

But a lot is still up in the air with a 50-50 Senate, COVID-19 and potential unforeseen circumstances looming in the background. 

Senate Judiciary Committee Chairman Dick Durbin, D-Ill., took the first step toward setting the timetable for Jackson’s confirmation when he announced the committee’s first business meeting on Jackson. The meeting, also known as a markup, will happen Monday. 

“The committee will meet in executive session to consider Judge Jackson’s nomination to the Supreme Court on this Monday, March the 28th at 3 p.m.,” Durbin said at the conclusion of Jackson’s testimony Wednesday. 

U.S. Supreme Court nominee Judge Ketanji Brown Jackson speaks during her confirmation hearing before the Senate Judiciary Committee in the Hart Senate Office Building on Capitol Hill March 23, 2022, in Washington, DC. Judge Ketanji Brown Jackson, President Joe Biden’s pick to replace retiring Justice Stephen Breyer on the U.S. Supreme Court, would become the first Black woman to serve on the Supreme Court if confirmed. (Photo by Anna Moneymaker/Getty Images)

But that does not mean the committee will vote on Jackson Monday. According to the rules of the Senate Judiciary committee, “At the request of any member… a bill, matter, or nomination on the agenda of the Committee may be held over until the next meeting of the Committee or for one week, whichever occurs later.”

Therefore Republicans, currently in the Senate minority, are allowed to delay a vote on Jackson’s nomination for at least one week after the Monday meeting. They are almost certain to do that. 

That would set the Judiciary Committee on a path to vote on Jackson’s nomination as early as Monday, April 4 if Democrats move as fast as they can – which they are almost certain to do. 

Chairman of the Senate Judiciary Committee Sen. Dick Durbin, D-Ill., listens as Sen. Patrick Leahy, D-Vt., questions Supreme Court nominee Ketanji Brown Jackson during her confirmation hearing before the Senate Judiciary Committee, Tuesday, March 22, 2022, in Washington. (AP Photo/Evan Vucci)
(AP Photo/Evan Vucci)

“There’s no reason to wait,” Durbin said of the nomination process earlier this month. 

Indeed, the longer things drag on the more can go wrong for Democrats in the 50-50 Senate which does not allow remote voting. 

Sen. Ben Ray Lujan, D-N.M., had a stroke earlier this year and was temporarily unable to come to work. Twenty members of Congress, including Sens. Alex Padilla, D-Calif., Jeanne Shaheen D-N.H., Dan Sullivan, R-Alaska, and Bob Casey, D-Pa., tested positive for COVID-19 this month. 

If Jackson can’t get bipartisan support and a Democrat senator is forced to quarantine because of COVID-19, it’s possible that could delay her confirmation. 

Senate Majority Leader Chuck Schumer of N.Y., walks on Capitol Hill, Tuesday, March 15, 2022, in Washington. (AP Photo/Mariam Zuhaib)

Further, the average age among all 100 senators is 64.3 years old, according to the Congressional Research Service. And there are eight Democrat senators age 75 or older, raising the possibility of health problems either related to COVID-19 or not. 

If Jackson receives a favorable recommendation by the Judiciary Committee – meaning she gets at least one GOP vote – Senate Majority Leader Chuck Schumer, D-N.Y., would bring her nomination to the floor likely within a day. He would then likely file for cloture to break a GOP filibuster setting up a final vote on Jackson as early as Thursday, April 7 or Friday, April 8. 

A few other factors could push that timeline into the weekend, the following week, or even later. 

Republicans could insist the nomination lays over for a day when it comes out of committee, pushing the timetable back a day.

Also, if the Judiciary Committee splits 11-11 along party lines, it will not have favorably recommended Jackson, as a committee vote needs a majority to succeed. Under the 50-50 Senate’s power-sharing agreement, there is a tool called a discharge motion Democrats can use to allow the full Senate to vote despite a tie in committee. But that could take floor time and push the final vote back by up to another day. 

Sen. Josh Hawley, (R-Mo.), speaks during a Senate Judiciary Committee Hearing on Capitol Hill in Washington, U.S. June 9, 2020. Andrew Harnik/Pool via REUTERS
(Andrew Harnik/Pool via REUTERS)

It would also be possible for Republicans to simply not show up for a committee vote on Jackson, preventing the Judiciary Committee from having a quorum. That could effectively bottle up the nomination in committee indefinitely. Senate Banking Committee Republicans did this with former Federal Reserve vice chair for supervision chair Sarah Bloom Raskin, citing ethical concerns. 

But there appears to be little appetite among Senate Judiciary Committee Republicans to do the same. 

“I’m not aware of any efforts that have been planned, or we have in mind, to you know, boycott committee markups or anything like that,” Sen. Mike Lee, R-Utah, told Fox News Digital. 

Supreme Court nominee Ketanji Brown Jackson testifies during her Senate Judiciary Committee confirmation hearing on Capitol Hill in Washington, Wednesday, March 23, 2022. (AP Photo/Alex Brandon)
(AP Photo/Alex Brandon)

“I don’t know what procedural options will be chosen,” Sen. Ted Cruz, R-Texas told Fox News Digital. 

“That’ll be a group – it’ll have to be a group decision,” Sen. Josh Hawley, R-Mo., said. “So I’ll you know, because it’s – a boycott’s only effective if everybody stands together. So we’ll just have to talk about that as group.”

If Jackson is confirmed in the early April timeframe Democrats are shooting for, she will not immediately be seated on the Supreme Court. Justice Stephen Breyer, who she is expected to replace, said earlier this year that he will retire at the end of the court’s current term, which usually comes in late June or early July. 

Fox News’ Jason Donner, Sally Persons, Leonard Balduccci and Chad Pergram contributed to this report. 

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