Scalia’s nomination coincided with the court’s summer recess. A review of court cases that were decided from the date of his nomination through the end of 1988 didn’t show any instances in which he heard arguments while waiting for confirmation.
Scalia participated in at least three cases in which the full court considered a petition to rehear a case en banc during the three-month waiting period and issued written decisions and took part in panel decisions. After he was confirmed, he did not participate in decisions in most cases he heard before being nominated.
One notable exception was a set of three cases decided in December 1986 that involved warrantless wiretaps authorized in the late 1960s by top executive branch officials. Scalia wrote the opinions in all three cases, largely upholding the legality of the wiretaps because of their connection to national security issues. (Read Scalia’s opinions in Smith, Halperin and Ellsberg.)
Justice Clarence Thomas
Nominated: July 8, 1991 ♦ Confirmed: Oct. 15, 1991
Thomas’ nomination, like Scalia’s, occurred during the court’s summer recess. A review of court cases that were decided from the date of his nomination through the end of 1993 didn’t show any instances in which he heard arguments while waiting for confirmation.
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