Less than a day after Supreme Court Justice Ruth Bader Ginsburg’s death, a political battle has begun over whether President Trump and Senate Majority Leader Mitch McConnell — legally or morally – have the right to fill the spot she left vacant on the bench.
In the same statement acknowledging her death, McConnell announced that he plans to hold a vote in the Senate to fill the vacant Supreme Court seat.
The Hill reported that on average, the Senate confirmation of a Supreme Court justice nominee would take 70 days, according to the Congressional Research Service. On that time frame, McConnell would have to confirm a justice during Congress’ lame-duck session, the session that takes place between presidential and Senate transitions of power.
Trump Has Urged A Vote ‘Without Delay’ to the Outrage of Many Democrats
.@GOP 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!
— Donald J. Trump (@realDonaldTrump) September 19, 2020
In a tweet, President Trump made it clear that he plans to go forward with filling Ginsburg’s former seat, despite the election being less than two months away.
McConnell has also clearly indicated his intention to hold a vote on any potential Supreme Court nominees. In response, USA Today reported that protesters showed up at his door expressing outrage that he has refused to vote on the Democrats’ coronavirus relief bill, yet plans to push a nominee through.
Democrats are also angry because of McConnell’s refusal to hold confirmation hearings over the last Democrat-appointed Supreme Court nominee, Merrick Garland.
After Justice Antonin Scalia died and left a vacant seat on the Supreme Court, McConnell said that holding a confirmation hearing for Garland with the election nine months away would be wrong. In a Washington Post op-ed, he and other Republicans wrote, “Given that we are in the midst of the presidential election process, we believe that the American people should seize the opportunity to weigh in on whom they trust to nominate the next person for a lifetime appointment to the Supreme Court.”
Now, McConnell has backtracked, saying that he refused to hold a confirmation hearing for Garland because the government was divided then with a Democratic president, USA Today reported. Many Republicans senators — such as Wisconsin Senator Ron Johnson — have followed suit in saying that nominating someone to the Supreme Court so close to this year’s election presents a different circumstance than the timing of Merrick Garland’s nomination.
just talked to @SenRonJohnson of WI who says he will support filling court vacancy this year. Denied that his stance is at odds with his 2016 opposition to filling election year vacancies, saying it's different when same party has WH and Senate (McConnell argument) …
— Craig Gilbert (@WisVoter) September 19, 2020
Both sides have eliminated rules to make confirming federal judges easier. Democrats, complaining of Republican obstructionism, eliminated the 60-vote threshold for judicial nominees in 2013, The New York Times reported, and Republicans — after Democrats attempted to block Justice Neil Gorsuch’s nomination in 2017 — changed the rules so a simple majority is all it takes to confirm federal judge and Supreme Court nominees.
Despite the blowback — and buoyed by the support of those who want to see another conservative justice on the Supreme Court’s bench, Trump and McConnell have not changed their statements; Trump has even recently said that he would likely pick a woman, according to CNN. With a nomination seeming very likely, Democrats are scrambling to determine how they will be able to stop the process.
Does McConnell Have the Votes in the Senate for a Confirmation?
Mitch McConnell is a cunning leader of the Senate, but he is not an absolute ruler, and several Republican senators have expressed misgivings about or opposition to pushing through a Supreme Court Justice confirmation in an election year. https://t.co/NA9oaUjUVh
— The New Yorker (@NewYorker) September 19, 2020
Mitch McConnell would need 51 votes in order to confirm another Supreme Court Justice. The Senate currently consists of 53 Republicans, 45 Democrats and two Independents (who both caucus with Democrats).
The confirmation is likely to take place, but it’s not guaranteed, thanks to a few wild card Republicans. Some of those Republicans, such as Lisa Murkowski of Alaska and Susan Collins of Maine, have made statements suggesting they will not vote to confirm any Supreme Court nominees. A reporter from The New York Times tweeted that one month ago, Collins told him that she would not vote to confirm a Supreme Court nominee because it was “too close” to election day.
Earlier this year, Murkowski told The Hill, “When Republicans held off Merrick Garland, it was because nine months prior to the election was too close. We needed to let people decide. And I agreed to do that. If we now say that months prior to the election is OK when nine months was not, that is a double standard and I don’t believe we should do it. So I would not support it.”
Both senators are facing tough reelection campaigns in their respective states and both disappointed those in opposition of Kavanaugh’s appointment to the Supreme Court, the Washington Post reported, with Murkowski voting “present” instead of “no” and Collins voting “yes.”
It is also unclear how Mitt Romney, who voted in favor of Trump’s impeachment but said he would likely have voted in favor of current Justice Brett Kavanaugh’s confirmation, will vote.
However, even if those three senators voted “no,” that would still leave the Republican Senate majority at 50. In any case of a tie, the rule of the Senate would have Vice President Mike Pence cast the deciding vote, likely tipping the balance of the Senate in favor of confirmation.
Sports Grind Entertainment pointed out that there are a few other Republican senators who may willing to vote against a Trump nominee, such as Senators Ben Sasse of Nebraska and Lamar Alexander of Tennessee.
Sasse, a “never Trumper,” was critical of the nomination process during the Kavanaugh hearings and said that it should not become a “substitute political battleground.” In a statement, Alexander called the way the Kavanaugh hearings were handled an “inquisition” by Democrats; however, he would not have to face voters after any votes on a new nominee because he is retiring.
Both Senators, however, still voted to confirm Kavanaugh. Should either of them vote “no,” that — along with all Democratic senators and Murkowski, Collins and Romney voting “no” — could reduce McConnell’s majority enough to block any nominee’s confirmation in the Senate.
Other Republican Senators whose “no” votes could tip the confirmation include Cory Gardner of Colorado, Thom Tillis of North Carolina and Martha McSally of Arizona; however, both Tillis and McSally have already said they would vote “yes” on any nominee (as Politico reported) and Gardner has refused to say either way how he would vote. Instead, The Hill reported that he said, “Out of decency and respect for this country, we need to make sure that we are giving time for personal reflection on this loss of an American icon.”