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by Causes | 9.19.20

What’s the story?

The death of Justice Ruth Bader Ginsburg from pancreatic cancer on Friday created a vacancy on the Supreme Court, and as the nation mourns her passing it is also coming to grips with the political and constitutional implications of that vacancy given the upcoming presidential election.
Senate Majority Leader Mitch McConnell (R-KY) released a statement Friday night praising Ginsburg’s legacy, and emphasizing that, “President Trump’s nominee will receive a vote on the floor of the United States Senate.”
President Donald Trump’s initial reaction on Friday and a statement released by the White House later in the evening were focused on Ginsburg’s legacy, and the president waited to weigh in on the vacancy Saturday morning when he tweeted:

“.@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!”

The Supreme Court is set to hold its first arguments of the upcoming term on October 5th, and with only eight justices on the bench it’s possible the Court could deadlock 4-4 on a case before them, which would effectively uphold the lower court’s decision. That could prove constitutionally problematic if courts are asked to decide legal controversies related to the election and circuit courts produce contradictory rulings on an issue. Currently, the Supreme Court has five justices who were appointed by Republicans and three who were appointed by Democrats.
Trump has not yet nominated a replacement for Ginsburg or given a timeline for the announcement, but he recently released a list of 20 additions to his list of potential Supreme Court nominees which added to 25 previous candidates. Among the reported favorites are Judge Amy Coney Barrett of the 7th Circuit Court of Appeals, Judge Barbara Lagoa of the 11th Circuit Court of Appeals, and Judge Allison Jones Rushing of the 4th Circuit Court of Appeals.
Once Trump announces a nominee, the confirmation process will kick into gear, and we’ve examined the upcoming debate below.

What’s the outlook for a Supreme Court confirmation in the Senate?

Republicans hold a 53 seat majority in the Senate, and it only takes a simple majority to confirm a Supreme Court justice because the “nuclear option” was used in the confirmation of Justice Neil Gorsuch.
The GOP can lose three senators and still confirm a new justice with Vice President Mike Pence breaking the 50-50 tie. No Supreme Court justice has ever been confirmed through a tie breaking vote, but there is no Senate rule precluding it.

How quickly could the Senate confirm a new justice?

Historically, the length of the debate over a Supreme Court nomination in the Senate has varied significantly between individual nominations, and in this case the speed with which the Senate acts will ultimately hinge on the stance of Republican senators who could leave Majority Leader McConnell shy of the votes needed for confirmation. The feedback from those senators will likely determine the timing of confirmation hearings and a final floor, including whether or not it occurs before or after Election Day (November 3, 2020).
The Congressional Research Service reported in 2018 that since 1975, the average number of days between the formal submission of a Supreme Court nomination to the nominee’s confirmation is 69.6 days (or about 2.3 months).
The late Justice Ruth Bader Ginsburg had a relatively quick confirmation process that lasted 42 days from formal nomination to confirmation. The fastest confirmation processes were for Justice John Paul Stevens, who was confirmed by a Democratic Senate 19 days after Republican President Gerald Ford nominated him; and for Justice Sandra Day O’Connor who was nominated by Republican President Ronald Reagan and confirmed by a GOP Senate 33 days later.
The justices currently on the bench were confirmed after periods of time that were, for the most part close to average. Justice Clarence Thomas’s confirmation process took 99 days; while Justice Stephen Breyer’s took 73 days; Chief Justice John Roberts’s took 62 days; Justice Samuel Alito’s took 82 days; Justice Sonia Sotomayor’s took 66 days; Justice Elena Kagan’s confirmation happened after 87 days; Justice Neil Gorsuch’s process lasted 65 days; and Justice Brett Kavanaugh was confirmed after 89 days.
Based on those timelines for prior nominations, a pre-Election Day confirmation would require one of the fastest processes in modern history.

What are some of the key senators saying about the vacancy?

Senate Majority Leader Mitch McConnell’s (R-KY) full statement concerning the Supreme Court vacancy read as follows:

“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. Since the 1880s, no Senate has confirmed an opposite-party president’s Supreme Court nominee in a presidential election year.

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. President Trump’s nominee will receive a vote on the floor of the United States Senate.”

McConnell also sent a “dear colleague” letter to Republican senators to address arguments that confirming a justice in 2020 would violate the precedent set in 2016 when Republicans blocked the nomination of Judge Merrick Garland to the Supreme Court (commonly known as the McConnell rule or the Biden rule), and that there isn’t enough time to fill the vacancy:

“Over the coming days, we are all going to come under tremendous pressure from the press to announce how we will handle the coming nomination. For those of you who are unsure how to answer, or for those inclined to oppose giving a nominee a govte, I urge you all to keep your powder dry. This is not the time to prematurely lock yourselves into a position you may later regret.

I want to address briefly two arguments you are likely to hear from those opposing filling the vacancy. The first is that Senate Republicans established a rule in 2016 that the Senate will not fill Supreme Court vacancies in presidential election years. That is not true. We followed the Biden Rule in 2016, which provided that the Senate will not fill Supreme Court vacancies that arise in presidential election years when the presidency and the Senate majority are held by opposing parties. Indeed, as I said beginning in February 2016, you have to go back to 1888 when Grover Cleveland was President to find an example of filling a vacancy that arose in an election year when the presidency and the Senate majority were held by opposing parties.

Second, you may hear some argue that there is not enough time to fill this vacancy. That again is not true. Justice Ginsburg’s confirmation took only 50 days from the announcement of her nomination until her floor vote. Justice Stevens’ confirmation took only 19 days from the announcement of his nomination to his confirmation. And according to the New York Times in February 2016, in our republic’s history, Supreme Court nominees have been either confirmed, rejected, or withdrawn within an average of 25 days from the nomination’s arrival in the Senate. And, according to the Heritage Foundation, over the last three decades the Senate has held a confirmation vote on Supreme Court nominees within an average of just 71 days after the nomination was made. Again, I urge you all to be cautious and keep your powder dry until we return to Washington.”

Senate Minority Leader Chuck Schumer (D-NY) tweeted that, “The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president.” Schumer also reportedly told Senate Democrats on a call that if the GOP fills the Ginsburg vacancy, Democrats may move to expand the Supreme Court if they take the majority and the White House:

“Let me be clear: if Leader McConnell and Senate Republicans move forward with this, then nothing is off the table for next year. Nothing is off the table.”

Senate Judiciary Committee Chairman Lindsey Graham (R-SC) weighed in Saturday with a tweet thread which explained he will support Trump in filling the vacancy:

“The two biggest changes regarding the Senate and judicial confirmation that have occurred in the last decade have come from Democrats. Harry Reid changed the rules to allow a simple majority vote for Circuit Court nominees dealing out the minority. Chuck Schumer and his friends in the liberal media conspired to destroy the life of Brett Kavanaugh and hold that Supreme Court seat open. In light of these two events, I will support President @realDonaldTrump in any effort to move forward regarding the recent vacancy created by the the passing of Justice Ginsburg.\"

Sen. Lisa Murkowski (R-AK), who voted against the confirmation of Justice Brett Kavanaugh in 2018, explained on Friday prior to the announcement of Ginsburg’s death that in 2016 she supported McConnell’s decision to not hold a vote on the Garland nomination that she felt at the time that it “was too close to an election and that the people needed to decide. That the closer you get to an election, that argument becomes even more important.”
Sen. Susan Collins (R-ME) released a statement saying that she believes the president elected on November 3rd should make the decision on an appointment to fill the vacancy:

\"In order for the American people to have faith in their elected officials, we must act fairly and consistently — no matter which political party is in power. President Trump has the constitutional authority to make a nomination to fill the Supreme Court vacancy, and I would have no objection to the Senate Judiciary Committee's beginning the process of reviewing his nominee's credentials.

Given the proximity of the presidential election, however, I do not believe that the Senate should vote on the nominee prior to the election. In fairness to the American people, who will either be re-electing the President or selecting a new one, the decision on a lifetime appointment to the Supreme Court should be made by the President who is elected on November 3rd.”

Sen. Mitt Romney (R-UT), who has sparred with President Donald Trump and voted for his impeachment, hasn’t yet said whether he supports a GOP effort to fill the Ginsburg vacancy or if the timing matters to him. Romney’s communications director refuted a report that Romney has committed to not confirming a nominee until after Inauguration Day (January 20th)
Sen. Martha McSally (R-AZ), a vulnerable incumbent defending her seat this November, tweeted that, “This U.S. Senate should vote on President Trump’s next nominee for the U.S. Supreme Court.” McSally is competing in a special election and under Arizona law if she is defeated by her challenger, Mark Kelly (D), Kelly could be sworn in before November 30, 2020 during the lame duck session ― which would change the math and only allow for two GOP defections in a successful confirmation vote.

— Eric Revell

(Photo Credit: McConnell: Gage Skidmore via Flickr / Creative Commons | Supreme Court: iStock.com / SeanPavonePhoto)

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