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Can Trump replace Ginsburg on the Supreme Court before the election?

Into a year of unprecedented crisis and divide, the death of Supreme Court Justice Ruth Bader Ginsburg adds more political drama.

And a core question: Will President Donald Trump be able to seat a new justice on the Supreme Court, potentially reopening landmark decisions, just weeks before the November election?

Republican Senate Leader Mitch McConnell on Friday night issued a statement, where he promised, “President Trump’s nominee will receive a vote on the floor of the United States Senate.” 

Here is what we know.

How many votes are needed to confirm a Supreme Court justice? Currently, a majority is required in the Senate, meaning either 51 votes outright, or 50 votes with the vice president acting as tie-breaker. It used to require 60 votes to end the debate and bring the nomination to a vote, but that rule was changed by Republicans in 2017 to require only a majority vote, after Democrats had previously made that change for all other judicial nominees. 

Ok, so Republicans need 50 votes. Do they have 50 votes to confirm a Trump nominee now? This is the trillion-dollar question. Short answer, this may be very close. The longer answer is complicated. 

  • The GOP needs: 50 votes.
  • The GOP has: 53 Republican senators.
  • But Sen. Lisa Murkowski, R-Alaska, said Friday night, that the country is too close to an election and, “I would not vote to confirm a Supreme Court nominee.”
  • So the GOP is down to 52 votes at the moment. They could lose two more votes from their conference and still confirm a nominee. But they could not lose any more.
  • Two key senators to watch are Susan Collins, R-Maine, and Mitt Romney, R-Utah, who have broken at times with Trump and McConnell.
  • Romney voted to remove Trump from office earlier this year in impeachment proceedings. 
  • Collins is in a heated reelection battle in which her 2018 vote to confirm Justice Brett Kavanaugh has repeatedly been raised and reviled by critics on the left. But Collins stresses her consistency on Supreme Court nominees. She openly supported a vote for Merrick Garland in 2016, when McConnell denied President Barack Obama’s nominee of even a hearing because, he said, the vacancy should not be filled by a “lame duck president.” That was in February 2016, roughly nine months before the presidential election.   
  • If Collins and Romney refuse to allow a vote now, one more Republican would have to vote no to block it.
  • Other possible ‘no’ votes include senators up for reelection this year in competitive races: Sens. Cory Gardner, R-Colo., Joni Ernst, R-Iowa, Thom Tillis, R-N.C. and Lindsey Graham, R-S.C., who pledged in the past that a nomination in the last year of Trump’s term of office would wait until after the election. Sens. Lamar Alexander, R-Tenn. and Chuck Grassley, R-Iowa, both veteran lawmakers who have supported tradition and precedent in the past, are also worth watching.

How long does it take to confirm a Supreme Court justice? 

  • The modern average, from nomination to confirmation, is 70.8 days as of Sept. 2018.  
  • That is the average length since 1975 until just before Kavanaugh’s 89-day confirmation, per data compiled by the Congressional Research Service.
  • The shortest confirmation in the past 30 years was 42 days, for Ginsburg herself in 1993. But that is an outlier. The next shortest timeline is 62 days.
  • The election is in 45 days, meaning any confirmation process before then would be far shorter than average.  
  • But it is still 107 days until the 117th Congress is seated and 123 days until Inauguration Day, which would theoretically give time for a more traditional confirmation process.

What are the steps in confirmation?  

  • The Senate Judiciary Committee handles the process.
  • Step 1: Extensive research into the nominee, including an FBI background check, as well as a lengthy questionnaire to which the nominee must respond.  
  • Step 2: The nominee and White House staff assigned to help typically spend days responding to the questionnaire.
  • Step 3 The nominee sets up in-person meetings with senators. It is unclear if this step would be adjusted at all for the pandemic.
  • Step 4: The Judiciary Committee holds hearings. These can last a few days or a few weeks, depending on the nominee. 
  • Step 5: The committee then holds a vote and sends its recommendation to the full Senate.
  • Step 6: The full Senate debates the nomination.
  • Step 7: Senate cloture vote to end debate.
  • Step 8: Senate votes to confirm or deny nomination.

Can Democrats delay any part of the confirmation process so that a vote can’t happen until after the election?

  • Short answer: no. If a nomination is made in the next three or four weeks, Democrats cannot delay a vote past the election.
  • Longer answer: Democrats do have some means by which they can delay or extend votes in the U.S. Senate. But most of these add a few days to the process, not additional weeks. And in general, these procedures could be overruled by Republicans, should they choose to do so.
  • Note: Republicans must decide whether to attempt a nomination vote before the election, which would not allow much time, or simply before inauguration in January, which could allow for a more traditional length of time and more thorough vetting process. For those in close reelection races, it might be more expedient to delay until after the election. 
  • Another note: the number of Republican votes in the Senate could change within days of the election. Arizona’s Senate race is a special election, to fill the seat left open by the death of former Sen. John McCain. As it’s a special election, the winner doesn’t wait for the next Congress to be seated, but takes office soon after the state election results are canvassed. 

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