Presidential Candidate Joe Biden made his pledge days before the South Carolina primary.
“I’m looking forward to making sure there’s a black woman on the Supreme Court, to make sure we, in fact, get every representation,” he said then.
With the death yesterday of Supreme Court Justice Ruth Bader Ginsberg, Biden might have a chance to deliver on that promise, but not if Senate Majority Leader Mitch McConnell, R-Ky., and Pres. Donald Trump have their way. On Friday night, hours after Ginsburg’s death, McConnell announced plans to call a vote for Trump’s upcoming nominee. On Saturday, Trump confirmed the Republican’s plan and urged the Republican-run Senate to consider “without delay” his upcoming nomination.
Democrats countered that Republicans should follow the precedent that GOP legislators set in 2016 by refusing to consider Pres. Barack Obama’s Supreme Court choice in the run-up to an election. In 2016 McConnell refused to call hearings for Garland 237 days before the 2016 election. The 2020 election is 46 days away.
Biden stood with the Democrats, saying any selection should come after the Nov. 3 election. “Voters should pick the president and the president should pick the justice to consider,” he said.
The death of Ginsburg, a champion of women’s rights and a pop culture icon, led to a wave of mourning, including an informal memorial at the Supreme Court and a protest outside McConnell’s house. It also seemed certain to stoke enthusiasm in both political parties as the election could now be viewed as referendum on the high court’s decisions, including the future of abortion rights.
Democrats raised more than $31 million in the hours after Ginsburg’s death, showing how the liberal icon’s passing and the contentious nomination fight ahead have already galvanized the party’s base.
McConnell has launched a risky, unprecedented strategy. It could motivate conservative voters to rally behind Trump and GOP senators or it push away moderates who prefer to see the Senate stick to norms or are fearful of a right-leaning court stripping away women’s right to choose an abortion.
Republican Vote Not Guaranteed
A confirmation vote in the Senate is not guaranteed, even with a Republican majority.
Key senators may be reluctant to cast votes so close to the election. With a slim GOP majority, 53 seats in the 100-member chamber, Trump’s choice could afford to lose only a few. Four GOP defections could defeat a nomination, while a tie vote could be broken by Vice President Mike Pence.
Among the senators to watch are Republicans Susan Collins of Maine, Lisa Murkowski of Alaska, Mitt Romney of Utah and others.
Collins is in a tight race for her own reelection, as are several other GOP senators, including Cory Gardner in Colorado. Murkowski and Romney have been critical of Trump and protective of the institution of the Senate. Some Republicans, including Collins and Murkowski, have suggested previously that hearings should wait if a seat were to open
Lame Duck Appointment
The average number of days to confirm a justice, according to the Congressional Research Service, is 69, which would be after the election. But some Republicans quickly noted that Ginsburg was confirmed in just 42 days.
McConnell did not specify the timing. But trying for confirmation in a lame-duck session after the Nov. 3 election, if Trump had lost to Biden or Republicans had lost the Senate, would carry further political complications.
An Arizona Senate race is a special election, that seat could be filled as early as November 30 — which would narrow the window for McConnell if the Democratic candidate, Mark Kelly, hangs onto his lead.
Senate Democratic leader Chuck Schumer of New York warned that if Republicans push through the nominee, “nothing is off the table” for Senate rules changes to come, the person said.
In a note to his GOP colleagues Friday night, McConnell urged them to “keep their powder dry” and not rush to declare a position on whether a Trump nominee should get a vote this year.
McConnell argued that there would be enough time to fill the vacancy and he restated his argument that the 2016 Senate precedent — in which a GOP-held Senate blocked Obama’s election-year nomination — did not establish a rule that applies to the Ginsburg case. Under McConnell, the Senate changed the confirmation rules to allow for a simple majority.
The next pick could shape important decisions beyond abortion rights, including any legal challenges that may stem from the 2020 election. In the interim, if the court were to take cases with eight justices, 4-4 ties would revert the decision to a lower court; for instance, the Affordable Care Act could then be struck down by a lower Texas court.
The Associated Press contributed to this story