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The Senate vote in plain English

It’s almost here . . . the Senate vote to confirm Elena Kagan as the 112th Justice of the United States Supreme Court.  But, you might ask, can you really say at this point that the Court should be purchasing a leather chair for the soon-to-be fourth female Justice?  Yes, given the Democratic majority in the Senate and the confirmed votes of several Republicans, Kagan’s transition from Solicitor General to Associate Justice sometime in the next few days is all but assured.

Assuming that the Senate vote goes forward as anticipated tomorrow, what should we expect to see?  Well, first the Senate will probably debate the nomination for a little while longer, even though the final vote is a fait accompli.  Unless there’s a Perry Mason moment, the Senators’ statements and speeches won’t be designed to convince their colleagues to vote one way or another.  Instead, they’re hoping to be televised, both so that their constituents can see them taking a stand and so that party loyalists can take note of their positions.

After we hear more of what we have already heard since Kagan was nominated this spring (she was never a judge, she wrote some slightly controversial memos as a law clerk, she took a stand for gays and lesbians at Harvard, she’s smart, she’s a coalition builder, and she eats Chinese food on Christmas), the Senate will finally vote.  In a vote of this historical significance, the Senate will take a traditional roll call, with each Senator voting “yea” or “nay,” and we’ll probably hear from all one hundred.  Kagan will likely watch the vote as America does, perhaps from home, perhaps joined by family.

Let’s assume the vote goes as predicted.  She’ll celebrate.  So when will she become a Justice?  Based on what other Justices have done in the past, the new Justice Kagan will probably take the constitutional oath of officewithin a day or two after Senate confirmation, allowing her to get started at work right away.  In Justice Sotomayor’s case, that came three days after Senate approval:  the Senate voted on August 5, and she was sworn in at a private ceremony on August 8. Once she has taken her oath, Kagan can perform all of the duties of her office; there is no need to await the formal investiture ceremony.

Typically, a new Justice confirmed while the Court is in summer recess does not have a formal investiture ceremony until closer to the opening of the Court’s next Term.  In Justice Sotomayor’s case, however, that ceremony was held on September 8, primarily because the Court was returning early for oral arguments the next day.In Kagan’s case, the investiture ceremony — and the walk down the steps with the Chief Justice — may be closer to the scheduled opening of the new Term, on the first Monday in October (this year, October 4).

What’s this about walking down the steps?  Well, there are several traditions – many quite charming – that accompany a Justice’s investiture.    After taking a second oath called the judicial oath (most likely administered by the Chief Justice in the Supreme Court courtroom), the new Justice sits in the chair once occupied by the late Chief Justice John Marshall.  Marshall was the author of one of the Court’s best-known opinions, tMarbury v. Madison, and is widely regarded as the greatest Justice in history; new Justices may hope (who knows?) to absorb just a bit of wisdom from the almost two-hundred-year-old leather.  (Note:  In the modern era, a retiring Justice’s law clerks typically purchase her chair for her).  Second, the new Justice takes her seat on the bench – always the seat furthest to the left of the Chief Justice, who sits in the middle.  And finally, the Chief Justice traditionally escorts the new Justice down the forty-four steps in front of the Supreme Court . The media and friends take photos, and the new Justice poses for photos with family.

As soon as the Senate votes to confirm, many of the three-hundred-plus people who work at the Supreme Court will ramp up for Justice Kagan’s arrival.  Court staff are known for their efficiency, speed, and attention to detail; they can move a new Justice into her chambers, books unpacked and pictures hung, in less than a day.    Meanwhile, the staff in the Clerk’s Office – who are responsible for the many documents that circulate through the Court, like cert. petitions and briefs in granted cases, will be rallying to get her copies of anything and everything she’ll need to read before the long conference in September, at which the Justices will meet to discuss all of the cert. petitions (over fifteen hundred!) that come in over the summer.  Which cases will the Court hear this Term?  Justice Kagan will want to be an integral part of that conversation, even as she takes on the junior Justice’s traditional role of passing notes out and bringing coffee in through the conference room door.  The chefs in the Court dining room will learn her dietary preferences, she’ll be assigned a locker in the robing room, and, yes, a new leather chair will be purchased just for her – one she’ll sit in for what seems likely to be decades to come.

Finally, Justice Kagan will have to choose staff, namely law clerks and office staff.  Because she has not previously been a judge, she can’t call on former clerks to serve in her new chambers.  Quite likely, she’ll ask some current clerks at the Court to stay on for another year, in part for efficiency, in part because they know the ropes around the Court and can help her get up to speed.  Similarly, as Chief Justice Roberts and Justice Sotomayor did, she may ask some of Justice Stevens’s staff to stay on temporarily, even as she brings in her own staff who have worked with her in some capacity over the years.