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by Causes | 9.22.20

What’s the story?

Senate Republicans appear to have the votes to forge ahead with President Donald Trump’s nominee to fill the Supreme Court vacancy created by the death of Justice Ruth Bader Ginsburg. Trump is expected to announce his pick on Saturday ― 39 days before Election Day.
Advancing a Supreme Court nomination requires a simple majority in the Senate, and with Republicans holding a 53 seat majority they can only afford to lose three senators and still confirm a new justice with Vice President Mike Pence breaking a 50-50 tie in favor of confirmation.
Two Republicans ― Sen. Lisa Murkowski (R-AK) and Sen. Susan Collins (R-ME) ― have said they don’t think the Senate should take up the nomination before the election. Murkowski's statement clarified whether they would consider the nomination on the merits if the process went forward before the election despite their preference to wait. (Update - 4:30pm: Collins clarified that she would oppose the nominee on the floor due to the timing of the vote.)\n
Announcements by Sen. Cory Gardner (R-CO) Monday night and Sen. Mitt Romney (R-UT) Tuesday morning indicating their support for moving forward with filling the vacancy have given Republicans the votes they need to avoid a scenario where Pence’s tiebreaking vote is needed.
While Republicans appear to have enough support to move forward with consideration of Trump’s forthcoming Supreme Court nomination, they will need to retain that backing to see the nominee through to confirmation. If the nomination reaches the floor, there will be votes on cloture (ie to limit further debate on the nomination) and on confirmation which both require simple majorities.
Because of the procedural nature of the cloture vote, it’s possible that some senators could oppose limiting debate on the nomination but still vote for confirmation of the nominee based on the merits of their record.
It’s also possible, but less likely, that moderate Democrats will consider supporting the nomination on the floor. Sen. Joe Manchin (D-WV) voted for the confirmation of Justice Brett Kavanaugh, but has echoed Collins, Murkowski, and Sen. Doug Jones (D-AL) in saying the confirmation of Ginsburg’s successor shouldn’t occur before the election. Sen. Kyrsten Sinema (D-AZ) hasn’t yet weighed in on how or when the vacancy should be filled.
If the confirmation vote is held after the election during the lame duck session, it might change the math for Republicans. Sen. Martha McSally (R-AZ) is competing in a special election and under Arizona law if she is defeated by her challenger, Democrat Mark Kelly, Kelly could be sworn in during the lame duck session.

How quickly could the Senate take up the nomination?

Senate Judiciary Committee Chairman Lindsey Graham (R-SC) said that he is looking to hold confirmation hearings for the nominee over the course of three days in October, which could allow Republicans to hold a confirmation vote before Election Day. Hearings won’t be formally scheduled until after Trump announces the nomination, but will likely be two or three weeks after the formal nomination in mid-October to allow for a confirmation vote near the end of the month.
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 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.
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 since 1975 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.
If the Senate were to confirm Ginsburg’s successor on the Friday before Election Day (October 30th), it would be 35 days from nomination to confirmation ― making it the third fastest confirmation process since 1975.

— Eric Revell

(Photo Credit: White House via Flickr / Public Domain)

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