The death of Justice Ruth Bader Ginsburg just a few weeks before the presidential election heightens the usual political concerns surrounding the filling of a Supreme Court vacancy.
The timeline for naming a replacement will be compressed. President Trump has already indicated that he intends to make a nomination quickly, declaring in a tweet on Saturday, “We were put in this position of power and importance to make decisions for the people who so proudly elected us, the most important of which has long been considered to be the selection of United States Supreme Court Justices.”
“We have this obligation, without delay!” he wrote.
Mr. Trump is likely to announce his nominee within 10 days, before the first presidential debate, a source familiar with the White House vetting process said. Though Senate Majority Leader Mitch McConnell has vowed the president’s nominee will receive a vote on the Senate floor, the politics makes the timing uncertain.
What happens after someone is nominated?
After the president announces his nomination, the Senate Judiciary Committee must vet the nominee and hold confirmation hearings. This argues for a candidate who has already been vetted, like Amy Coney Barrett, who was a finalist to fill Justice Anthony Kennedy’s seat in 2018. Mr. Trump ultimately settled on Brett Kavanaugh, but said he was saving Barrett for a Ginsburg vacancy, Axios reported in 2019.
Usually, nominees meet with senators on Capitol Hill beforehand. This process is likely to be abbreviated — or virtual — given that Congress is expected to spend much of October campaigning before the November elections. If the Judiciary Committee approves the nomination, it would go to the Senate floor for a final confirmation vote.
In 2018, Judiciary Committee Chairman Lindsey Graham said he wouldn’t want to fill a vacancy in an election year. Since then, he has changed his mind, saying in May ofthis year that Republicans would work to fill the seat ahead of an election. “After Kavanaugh, the rules have changed as far as I’m concerned,” Graham said. During his confirmation hearing, Graham excoriated Democrats for their handling of a decades-old sexual assault allegation against Kavanaugh, calling it “the most unethical sham since I’ve been in politics.”
How many votes are needed to confirm a nominee?
The Senate can confirm a Supreme Court justice with a simple majority, and Republicans currently hold a slim majority with 53 votes. If four Republicans oppose it, they will not be able to confirm the nominee. If three Republicans were against it, Vice President Mike Pence would break the 50-50 tie.
A Supreme Court nominee used to require 60 votes for confirmation if any senator objected. However, in 2017, McConnell invoked the “nuclear option,” a procedural maneuver changing Senate rules.
This was made possible when Democrats last controlled the Senate. Majority Leader Harry Reid used the nuclear option in 2013 to confirm lower court judges. Its use by McConnell to confirm Gorsuch was the first time the maneuver was used for a Supreme Court justice. Gorsuch was confirmed with a vote of 54 to 45. In 2018, Kavanaugh was confirmed by an even slimmer margin of 50 to 48.
Could a Senate confirmation vote happen before the election?
Yes, but it would require uncharacteristic speed. Since 1975, it has taken 70 days on average for the Senate to confirm a nominee. The election is less than 50 days away, and the Senate has other major priorities to consider, such as addressing government funding before it expires on September 30 and negotiating another coronavirus relief package.
But Mr. Trump and McConnell have both made confirming conservative justices to the Supreme Court a priority, and Republican locked in tight reelection races may also see political benefit in confirming a new Supreme Court justice before November 3.
Senate Majority Leader Mitch McConnell vowed on Friday evening that the president’s nominee would receive a vote in the Senate.
But what about McConnell’s previous remarks? He said in 2016 the Senate shouldn’t hold votes on the Supreme Court in an election year.
When Justice Antonin Scalia died in February 2016, leaving a vacancy on the court, President Obama was in office. Scalia’s death left four conservative and four liberal justices on the court, meaning that the partisan leaning of the court was even. Mr. Obama is a Democrat. So, if the Senate had confirmed Mr. Obama’s nominee, Merrick Garland, that would have given the liberal justices a slim majority on the court.
Garland is a relatively centrist jurist, but McConnell did not want the balance of the Supreme Court to shift. He knew that if a Republican won the election, he would nominate a conservative justice, and the conservative majority on the Supreme Court would be preserved.
McConnell argued that a “lame duck president on the way out the door” should not choose a nominee in an election year.
“The American people are perfectly capable of having their say on this issue, so let’s give them a voice. Let’s let the American people decide,” McConnell said in 2016. Garland never received a hearing or a vote in the Senate, and Gorsuch was nominated by Mr. Trump to fill Scalia’s seat after the president took office.
In his statement on Friday announcing that the Senate would vote on Mr. Trump’s nominee, McConnell argued that it wasn’t hypocritical to vote on a vacancy so close to the election after refusing to do so four years earlier, as the Republican Party now controls both the Senate and the White House.
“In the last midterm election before Justice Scalia’s death in 2016, Americans elected a Republican Senate majority because we pledged to check and balance the last days of a lame-duck president’s second term. We kept our promise,” McConnell said, modifying the logic he applied in 2016. “By contrast, Americans reelected our majority in 2016 and expanded it in 2018 because we pledged to work with President Trump and support his agenda, particularly his outstanding appointments to the federal judiciary. Once again, we will keep our promise.”
Can the Senate fill the vacancy after the election?
Yes. If enough Republican senators refuse to vote to confirm a nominee so close to the election, McConnell will not be able to hold a confirmation vote. GOP senators in states with moderate voters may not wish to vote on a Trump nominee weeks from the election.
But after the election, even if Republicans lose the majority in the Senate, and Mr. Trump loses his reelection bid, senators could still vote to confirm a nominee during the lame-duck session between the election and the seating of new senators in January.
How does the Supreme Court vacancy factor into Senate campaigns?
Of the 38 Senate seats that are on the ballot this year, 25 are currently held by Republicans. Several Republicans are facing significant challenges by Democrats, and are in danger of losing their seats.
McConnell may choose to hold the confirmation vote after the election so that the vulnerable senators could campaign on the issue by arguing that if reelected, they would vote to confirm the nominee.
However, there’s another twist that could further compress a post-election confirmation vote. Republican Senator Martha McSally of Arizona was appointed to her seat and began serving last year after the death of Senator John McCain. The Arizona Senate election this year is a special election. McSally is locked in a tight race with Democrat Mark Kelly. If Kelly wins the election, he could be seated as a senator as soon as late November, meaning that the Republican majority would be narrowed to 52 to 48. If McConnell holds the confirmation vote after the election and after Kelly is seated, he would only be able to lose two Republican senators.
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