WASHINGTON — The death of Supreme Court Justice Ruth Bader Ginsburg just six weeks before the election cast an immediate spotlight on the crucial high court vacancy, with Senate Majority Leader Mitch McConnell quickly vowing to bring to a vote whoever President Donald Trump nominates.
Democratic nominee Joe Biden vigorously disagreed, declaring that "voters should pick the president and the president should pick the justice to consider."
McConnell, who sets the calendar in the Senate and has made judicial appointments his priority, declared unequivocally in a statement not long after Ginsburg’s death was announced that Trump’s nominee would receive a confirmation vote in the chamber. In 2016, McConnell refused to consider President Barack Obama’s choice for the high court months ahead of the election, eventually preventing a vote.
The impending clash over the vacant seat — when to fill it and with whom — is sure to significantly affect the stretch run of the presidential race, further stirring passions in a nation already reeling from the pandemic that has killed nearly 200,000 people, left millions unemployed and heightened partisan tensions and anger.
Trump, in brief remarks to reporters after learning of Ginsburg's death, called her "an amazing woman who led an amazing life." He had continued with a campaign speech in Minnesota for about an hour and a half after the nation — as well as aides and many in his audience with cell phones — had learned of her death. He seemed surprised when he spoke with reporters afterward, saying he did not know she had died.
Trump had noted in his rally speech that the next presidential term could offer him as many as four appointments to the nine-member court, whose members are confirmed for life. "This is going to be the most important election in the history of our country and we have to get it right," he added.
Biden said it must be up to the next president, whether himself or Trump, to choose a successor to be submitted for Senate confirmation.
"This was the position that the Republican Senate took in 2016, when there were nearly nine months before the election," he said. "That is the position the United States Senate must take now, when the election is less than two months away. We are talking about the Constitution and the Supreme Court. That institution should not be subject to politics.
A confirmation vote in the Senate is not guaranteed, even with a Republican majority.
Typically it takes several months to vet and hold hearings on a Supreme Court nominee, and time is short ahead of the election. 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.
McConnell did not specify the timing, but trying for confirmation in a post-election lame-duck session if Trump had lost to Biden or Republicans had lost the Senate would carry further political complications.
Democrats immediate denounced McConnell's move as hypocritical, pointing out that he refused to call hearings for Merrick Garland, Obama's pick, 237 days before the 2016 election. The 2020 election is 46 days away.
Senate Democratic leader Charles Schumer, in a tweet, echoed word for word what McConnell said in 2016 about the Garland nomination: "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."
Both Trump and McConnell have pointed to appointments to the federal judiciary, including two Supreme Court justices, part of their legacy. Trump said last month that he would "absolutely" try to fill a vacancy if one came up before the end of his first term.
"I would move quickly, " Trump said in an interview with conservative radio host Hugh Hewitt. "Why not? I mean, they would. The Democrats would if they were in this position."
While plans were still being formalized, Trump was expected to announce a choice sooner rather than later and may meet with members of his short list in coming days, according to a White House official not authorized to publicly discuss private conversations and spoke on condition of anonymity.
Trump last week added 20 names to his list of candidates he’s pledged to choose from if he has future vacancies to fill. He contrasted his list with unnamed "radical justices" he claimed Biden would nominate who would "fundamentally transform America without a single vote of Congress."
Trump released a similar list in 2016 in a bid to win over conservative and evangelical voters who had doubts about his conservative credentials. Among those on his current list: Sens. Ted Cruz and Tom Cotton, former Solicitor General Noel Francisco and Judge Amy Coney Barrett of the 7th U.S. Circuit Court of Appeals, in Chicago, long a favorite of conservatives.
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.
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. And because the 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.
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.
"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 vote, I urge you all to keep your powder dry," McConnell wrote. "This is not the time to prematurely like yourselves into a position you may later regret."
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.
A top aide to a GOP senator confirmed the authenticity of McConnell’s email to his fellow senators, which was first reported by The Washington Post.
Under McConnell, the Senate changed the confirmation rules to allow for a simple majority. The Senate's No. 2 Republican, Sen. John Thune, supported McConnell's plan Friday night, though the Judiciary Commtitee chairman, Lindsey Graham, did not weigh in.
Obama called for Republicans to wait, saying "a basic principle of the law – and of everyday fairness – is that we apply rules with consistency and not based on what’s convenient or advantageous in the moment."
One difference from 2016 is that, despite the vacancy resulting from Ginsburg’s death, conservatives have a working majority of five justices on a range of issues. When Antonin Scalia died four years ago, the court was divided between four liberals and four conservatives.
The next pick could shape important decisions, including on abortion rights, as well as any legal challenges that may stem from the 2020 election. The 2018 hearings on Trump's second pick, now-Justice Brett Kavanaugh, turned into a bitter partisan battle after sexual assault allegations were made.
Biden has promised to nominate a Black woman to the high court if given the chance. He has said he’s also working on a list of potential nominees, but the campaign has given no indication that it will release names before the election.
Democrats believe doing so would unnecessarily distract from Biden’s focus on Trump’s handling of the pandemic and the economy, while also giving the president and his allies fresh targets to attack. In the hours before Ginsburg's death, Trump trailed Biden in national polling but the race was much tighter in battleground states.