• Allon Advocacy

The Fight to Replace RBG

An already contentious 2020 election cycle has been roiled by the passing of Supreme Court Justice Ruth Bader Ginsburg.

After a career of service as a distinguished jurist and, later in life, a cultural icon, Supreme Court Justice Ruth Bader Ginsburg passed away on Friday, September 18, in the early hours of Rosh Hashanah, the Jewish new year. According to National Public Radio, in her final days the justice told her granddaughter, “My most fervent wish is that I will not be replaced until a new president is installed.”

It seems unlikely that wish will be fulfilled.

Less than 24 hours after Justice Ginsburg’s death, President Donald Trump said he would nominate a woman to the court this coming week. Indeed, the president reportedly has narrowed the list of potential nominees and is expected formally announce his selection late Friday or Saturday, after public memorials and services for Justice Ginsburg are over.

As stated in the U.S. Constitution, the U.S. Senate will exercise its advise and consent on the nomination – and with Republicans in control, the chamber is ready to go. Over the weekend, Senate Majority Leader Mitch McConnell (R-Ky.) pledged, “President Trump’s nominee will receive a vote on the floor of the United States Senate.” Indeed, Senate Judiciary Committee Chairman Lindsey Graham (R-S.C.), whose panel will be responsible for holding hearings on the nomination, is already planning confirmation hearings for the middle of October.

The entire process could take mere weeks – if Sen. McConnell has his way – or the vacancy could remain unfilled until after next January’s inauguration – if Democrats are able to convince a handful of vulnerable GOP senators to ally with them against a rapid nomination process.

But things are not looking favorable for the Democrats.

Here are the key numbers to keep in mind: there are 53 Republican sitting senators now to Democrats’ 47. (Independent senators Bernie Sanders of Vermont and Angus King of Maine caucus with the Democrats.) The White House could lose three GOP votes and the president’s nominee still would be confirmed because, if there is a 50-50 tie, Vice President Mike Pence would cast the deciding vote.

After a few days of heavy maneuvering, the White House has only two wavering Republican senators, with the rest of the GOP Senate lining up squarely behind McConnell and Trump.

On Sunday morning, less than 48 hours after Justice Ginsburg’s death, Politico reported, Senate Republicans have “started to line up behind President Donald Trump and Senate Majority Leader Mitch McConnell’s plan to put forward a Supreme Court nominee in short order … Vulnerable Republicans like Sens. Thom Tillis of North Carolina, Joni Ernst of Iowa and Martha McSally of Arizona quickly backed the strategy of moving swiftly.”

Those senators’ announcements came after Sen. McConnell wrote his GOP colleagues a letter that warned, “This is not the time to prematurely lock yourselves into a position you may later regret.”

Sen. Susan Collins (R-Maine), who is in the race of her life to keep her Senate seat, did not heed that advice entirely. She quickly put out a statement that argued, “Given the proximity of the presidential election … I do not believe that the Senate should vote on the nominee prior to the election.” Alaska Republican Sen. Lisa Murkowski released a similar statement on Sunday in which she noted, “For weeks, I have stated that I would not support taking up a potential Supreme Court vacancy this close to the election. … my position has not changed.”

Note that neither Sen. Murkowski or Sen. Collins, who provided a pivotal and dramatic vote in support of one of President Trump’s previous Supreme Court nominees, Justice Brett Kavanaugh, did not say they would vote against a Trump nominee. They simply said that they do not think there should be a vote this fall.

In fact, when asked on Tuesday to clarify her remarks, Sen. Murkowski said, “I can’t confirm whether or not I can confirm a nominee when I don’t know who the nominee is.”

Clear as mud.

As of this weekend, Sen. Cory Gardner of Colorado, another Republican facing a tough election this fall, had not yet indicated his position. According to The Hill, at a town hall Saturday afternoon, Sen. Gardner said he agreed with a sentiment expressed by Sen. Joe Manchin (D-W.Va.) and that “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.” (Keep an eye on Sen. Manchin himself. A conservative Democrat who is not facing reelection this year, he could defect to the Republicans’ side in this fight.)

But by Tuesday, Sen. Gardner said the president should nominate someone soon and said he will vote for any nominee “who will protect our Constitution, not legislate from the bench, and uphold the law.”

Sen. Mitt Romney, who has been a perennial thorn in President Trump’s side, also made news Tuesday, saying that “if the nominee reaches the Senate floor, I intend to vote based upon their qualifications."

According to CNN, Sen. Romney’s pledge “all but ensures a nominee put forward by President Donald Trump will be confirmed barring any potential missteps by the nominee during the confirmation process.”

As readers will remember from the last Supreme Court confirmation, for Justice Brett Kavanaugh, complications and political maneuvering can threaten Supreme Court confirmation battles regardless of timing. While it appears Republicans have secured the votes needed to confirm a Trump nominee, readers should continue to watch the names mentioned above and recall that 22 individuals who have been nominated to the Supreme Court throughout American history either were rejected by the Senate or had their names withdrawn by the President once it became clear there was insufficient support for their confirmation.

As for Democrats, there is not much they can do to stop this process. In fact, as Politico said, there is little the party can do little but “bellyache.”

That is, of course, because the GOP-led Senate eliminated the filibuster for Supreme Court nominees in 2017 during the fight over President Trump’s first Supreme Court nominee, Justice Neil Gorsuch. (As readers will recall, Gorsuch filled the seat held by the late Justice Antonin Scalia who passed away in February 2016. President Barack Obama originally nominated Merrick Garland for that seat, but Senate Republicans, who were in charge of the chamber at that time, refused to consider the nomination until after the 2016 presidential election between Trump and Hillary Clinton.)

While it was the GOP that eliminated the filibuster for Supreme Court nominations, both parties were responsible for its demise. As New York Times reporter Emily Cochrane recalled this past weekend, “Democrats eliminated the 60-vote threshold for most judicial nominees in 2013, frustrated by Republicans’ use of the filibuster to slow and impede Mr. Obama’s agenda.”

With a filibuster gone, a more rapid nomination process is easier and that means that, as the minority party in the Senate, Democrats do not have many tools at their disposal.

And what tools do they have then?

Some Democrats, including Rep. Joe Kennedy, have said the party should “pack” the court – add multiple new members to it – if Joe Biden wins the election. That threat is feasible under the U.S. Constitution, which does not limit the number of justices who sit on the Supreme Court; however previous attempts to do so, including by President Franklin D. Roosevelt in 1937, have been ruled unconstitutional. Regardless, according to Axios, Senate Minority Leader Chuck Schumer said “nothing” would be off the table next year if Republicans push through a nominee.

The fireworks we will see this fall very likely could extend into 2021 if Joe Biden wins the presidency and Democrats flip enough Senate seats in November to take over a majority next year.

So when exactly can you expect a vote on President Trump’s nominee?

Capitol Hill journalists from Politico said to “expect a nomination and hearings before the election, but not necessarily a vote.” Depending on the amount of presidential pressure exerted on him before the election, Sen. McConnell could schedule a vote before Election Day, but it also is just as likely that he will wait until after, Politico reporters opined.

Again, clear as mud.

It is potentially perilous for Majority Leader McConnell to wait too long. Several news outlets have noted that if Mark Kelly, who is running against Sen. Martha McSally (R-Ariz.) to fill out the remainder of the late Sen. John McCain’s unexpired term, wins he could be sworn in as early as November 30. If that scenario plays out, and Majority Leader McConnell waits until too long after the election, the president’s nominee could afford to lose only two GOP votes.

Yesterday, The Washington Post reported Senate Judiciary Chairman Lindsey Graham (R-S.C.) “is looking at scheduling a confirmation hearing for the week of Oct. 12 and a committee vote near the end of the following week, with a vote on the floor before Halloween.”

Is that too little time for the Senate to adequately consider a nomination?

According to a separate Washington Post analysis, perhaps not.

Since 1975, it has taken an average of 68 days for a Supreme Court nominee to go from nomination to confirmation. If President Trump announces a nominee Saturday, September 26, the historical average would put a vote in very early December.

But, of course, not every nominee takes the average number of days.

Justice Gorsuch, mentioned above, was confirmed in 65 days. The nomination of Chief Justice John Roberts took only 62 days while Justice Clarence Thomas’ scandal-plagued process took more than three months (99 full days).

And how about the advise and consent process that put Ruth Bader Ginsburg on the court?

Well, that took only 42 days and it still was not even the speediest of deliberations. The first female justice, Sandra Day O’Connor, made it on the court in about a month, 33 days. For the late Justice John Paul Stevens, deliberations took less than three weeks.

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