Will Donald Trump's SCOTUS Nominee Be Able To Vote On Cases Argued Prior To Confirmation?
Nothing about this president has been traditional, so why would his Supreme Court nominee follow tradition?
We see no reason why a justice cannot vote on the merits of a case argued before his or her confirmation, after reading the briefs and the argument transcript or listening to the argument recording.
— Timothy Bishop, a partner at Mayer Brown and co-author of “Supreme Court Practice” (affiliate link), commenting on the likelihood that a justice nominated by President Donald Trump would be able to participate in the Supreme Court decision-making process this Term. William Suter, the former clerk of the Supreme Court, said that while he knew of no rule that would prohibit a new justice from taking part in a case without participating in oral arguments, it would look “fishy, especially if the newbie voted with the majority in a 5-4 decision.” Up until this point, tradition, not law, has dictated when new justices may decide the high court’s cases.
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Staci Zaretsky is an editor at Above the Law. She’d love to hear from you, so feel free to email her with any tips, questions, or comments. You can follow her on Twitter or connect with her on LinkedIn.
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