AP Explains: What’s Next With Court Vacancy?

Senate Minority Leader Chuck Schumer, D-N.Y., joined by Sen. Dick Durbin, D-Ill., right, holds a briefing on the Supreme Court vacancy outside the Capitol in Washington, Tuesday, Sept. 22, 2020. (AP)
Mary Clare Jalonick and Lisa Mascaro
The Associated Press

Washington – The death of Supreme Court Justice Ruth Bader Ginsburg is putting the Senate in uncharted political terrain. There’s no recent precedent for a confirmation vote so close to a presidential election.

President Donald Trump has urged the Republican-run Senate to consider “without delay” his upcoming nomination, even with the Nov. 3 election nearing. Democratic presidential nominee Joe Biden said there is “no doubt” the winner of that election should choose Ginsburg’s replacement.

Plans are in motion for a swift and highly unusual nomination and confirmation in the heart of campaign season. Senate Majority Leader Mitch McConnell, R-Ky., vowed Trump’s nominee “will receive a vote on the floor of the United States Senate.” Democrats say it’s “hypocrisy” after McConnell refused to consider then-President Barack Obama’s nominee, Judge Merrick Garland, months before the 2016 election.

There’s significant risk and uncertainty ahead. Early voting is underway in some states in the races for the White House and control of Congress.

Here is look at the confirmation process and what we know and don’t know about what’s to come:

Can Senators Act Before the Election?

Yes, but it would require a breakneck pace. Supreme Court nominations have taken around 70 days to move through the Senate, and the last, for Brett Kavanaugh, took longer.

The election is only weeks away. Yet there are no set rules for how long the process should take once Trump announces his pick, which could come in a matter of days. Some nominations have moved more quickly. It will come down to politics and vote tallies.

What Does Confirmation Require?

Only a majority. Republicans control the Senate by a 53-47 margin, meaning they could lose up to three votes and still confirm a justice, if Vice President Mike Pence were to break a 50-50 tie.

Supreme Court nominations used to need 60 votes for confirmation if any senator objected, but McConnell changed Senate rules in 2017 to allow the confirmation of justices with 51 votes. He did so as Democrats threatened to filibuster Trump’s first nominee, Justice Neil Gorsuch.

What About the Campaign?

Republicans are defending 25 of the 38 seats that are on the ballot this year, and many of their vulnerable members have been eager to end the fall session and return home to the campaign trail.

The Senate is scheduled to recess in mid-October, though that schedule could change.

Still, many of the most vulnerable senators may be hesitant to vote on a nominee before facing voters in November, and their views could ultimately determine the timeline for action. Others may want to campaign on their eventual vote. McConnell himself is among those up for reelection this year.

Several key GOP senators including Martha McSally in Arizona, Kelly Loeffler in Georgia and Thom Tillis in North Carolina quickly linked themselves to Trump, calling for swift voting. Sen. Susan Collins of Maine took the opposite approach, saying “in fairness to the American people” the president who is elected should decide. All face stiff challenges in November.

What About Waiting Until After Election Day?

Republicans could vote on Trump’s nominee in what’s known as the lame-duck session that takes place after the November election and before the next Congress takes office on Jan. 3.

No matter what happens in this year’s election cycle, Republicans are still expected be in charge of the Senate during that period.

The Senate would have until Jan. 20, the date of the presidential inauguration, to act on Trump’s nominee. If Trump were reelected and his pick had not been confirmed by the inauguration, he could renominate his pick as soon as his second term began.

How Does the Process Work?

When a vacancy occurs on the Supreme Court, the president is given authority under the Constitution to nominate someone to fill it. It is up to the Senate Judiciary Committee to vet the nominee and hold confirmation hearings.

Once the committee approves the nomination, it goes to the Senate floor for a final confirmation vote. This process passes through several time-consuming steps. Traditionally senators want to meet and assess the nominee themselves, which requires weeks of meetings around the Capitol.

And that’s all assuming the process goes smoothly. In 2018, Kavanaugh’s confirmation fight took weeks longer than expected after Christine Blasey Ford accused him of sexually assaulting her when they were teens. Kavanaugh denied the accusation and was confirmed by the Senate in a 50-48 vote.

The Senate Judiciary Committee chairman, GOP Sen. Lindsey Graham of South Carolina, who faces his own tough reelection contest, joined those now calling for swift voting. He tweeted that he will support Trump “in any effort to move forward.”

Didn’t This Happen in 2016?

Yes, and in 2016, McConnell stunned Washington in the hours after the death of Justice Antonin Scalia in February 2016 when he announced the Senate would not vote on then-President Barack Obama’s potential nominee because the voters should have their say by electing the next president.

McConnell’s strategy paid off for the Republican Party. Obama nominated Judge Merrick Garland to fill the seat, but he never received a hearing or a vote. Soon after his inauguration, Trump nominated Gorsuch to fill Scalia’s seat.

Four years later, McConnell said the Senate will vote on Trump’s nominee, even though it’s weeks, not months before an election.

So What’s Changed Since 2016?

McConnell says it’s different because the Senate and the presidency are held by the same party, which was not the case when a vacancy opened in 2016. Democrats say this reasoning is laughable and the vacancy should be kept open until after the inauguration.

Certainly politics are different now, with the country in the grips of a deadly pandemic. Congress has been operating partly remotely to avoid spreading the virus.

Absent a robust legislative agenda, the court battles have become a focal point for McConnell, fulfilling a longstanding conservative priority. He is building his legacy on confirming conservative judicial nominees. On his watch, the Senate has confirmed more than 200 judges for federal appellate and district courts.

Who Are the Senators to Watch?

With the slim 53-seat majority in the Senate, the Republicans have few votes to spare.

Besides Collins, Lisa Murkowski of Alaska, Mitt Romney of Utah and others will be among those Republican senators to watch. Murkowski and Romney have been critical of Trump and protective of the institution of the Senate.

Others facing close reelection contests in their states, including Sen. Cory Gardner of Colorado, will surely face pressure not to vote ahead of the election or in its immediate aftermath, especially if they were to lose their seats. In Arizona, the winner of the race between McSally and the Democratic nominee, former astronaut Mark Kelly, could be seated within weeks after the election, further complicating the outcome.

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