WASHINGTON – President Donald Trump and Senate Majority Leader Mitch McConnell signaled Friday they will move soon to start thepolitically fraught process of filling the Supreme Court vacancy left by the death of Justice Ruth Bader Ginsburg.
McConnell asserted shortly after Ginsburg’s passing that he intended to bring a Trump nominee to the Senatefloor for a vote.And a senior administration official, speaking on the condition of anonymity to reveal internal discussions, confirmed Trump intends to choose a nominee soon, though declined to discuss a specific timeline.
“President Trump’s nominee will receive a vote on the floor of the United States Senate,” McConnell said.
“Americans reelected our majority in 2016 and expanded it in 2018 because we pledged to work with President Trump and support his agenda, particularly his outstanding appointments to the federal judiciary,” he added. “Once again, we will keep our promise.”
But while Republicans may be eager to move quickly, the process is certain to get swept up in the divisive presidential election and the actual timeline could depend on the outcome of the November election. Several GOP senators have expressed reservations in the past about moving a confirmation so close to an election.
The vacancy has major implications for the court, handing Trump an opportunity to create a solidly conservative court perhaps for decades to come.
Trump was speaking at a campaign rally in Minnesota when news of Ginsburg’s death broke. Afterward, he told reporters he she led an “amazing” life.
“What else can you say? She was an amazing woman, whether you agree or not,” Trump said. “She was an amazing woman who led an amazing life. I’m actually sad to hear that.”
Supreme Court nominees generally take months to win confirmation – even longer if controversy arises. Trump nominated Justice Neil Gorsuch in January 2017, days after taking office, and the Senate did not confirm him until April. The nomination of Justice Brett Kavanaugh, delayed by allegations of sexual assault, took three months in 2018.
That timing makes it unlikely that Republicans couldsecure a confirmation by the election, but it would leave plenty of room to approve a nominee during a lame duck session regardless of whether Trump or Democratic nominee Joe Biden wins in November. If Democrats win control of the Senate that could further complicate the politics of a Supreme Court confirmation.
Since McConnell adjusted the Senate rules in 2017, the chamber’s majority has had the power to confirm a Supreme Court nominee with a simple majority. That means McConnell, with a 53-47 majority, could afford to lose only three Republicans – assuming all Democrats vote against Trump’s nominee.
In the past, however, some Democrats have backed Trump’s Supreme Court nominees. Three voted for Gorsuch. One voted for Kavanaugh.
McConnell is still widely remembered for refusing to give President Barack Obama’s last appointee to the high court, Judge Merrick Garland, a Senate hearing in 2016. And Democrats were quick to echo McConnell’s arguments at the time.
“There is no doubt – let me clear – that the voters should pick the president and the president should pick the justice for the Senate to consider,” Biden said Friday. “This was the position the Republican Senate took in 2016 when there were almost 10 months to go before the election. That’s the position the United States Senate must take today.”
White House aides have long said Trump would nominate a replacement as soon as there is a vacancy. Earlier this month, Trump unveiled a new list of 20 potential nominees, part of an effort to his signal the direction he would take the court if reelected.
Trump officials in the past have described two potential candidates as favorites: Judge Amy Coney Barrett, who he placed on the U.S. Court of Appeals for the 7th Circuit, and Judge Amul Thapar of the 6th Circuit appeals court, a McConnell favorite.
Aides said they expect Trump to nominate a replacement soon, but did not want to discuss the process out of respect for Ginsburg.
On July 15, amid questions about Ginsburg’s health, White House Chief of Staff Mark Meadows told reporters that Trump would seek to fill any vacancy before Election Day.
“I can’t imagine that if he had a vacancy on the Supreme Court that he would not very quickly make the appointment and look for the Senate to take quick action,” he said. “That being said, we’re glad that Ruth Bader Ginsburg is well and out of the hospital and I don’t want any comment there to be a suggestion that we do anything but wish her the very best in health.”
Despite McConnell’s vow to move ahead, some members of his conference have voiced hesitancy, especially if the vacancy came close to an election.
Sen. Lindsey Graham, R-S.C. and a close ally of the president, vowed in 2018 he would not fill a vacancy if it came too close to the election.
“If an opening comes in the last year of President Trump’s term, and the primary process has started, we’ll wait until the next election,” he said at the time.
Graham chairs the Senate Judiciary Committee, the panel that would be tasked with the nomination process for a new justice.
In 2018, Sen. Chuck Grassley, R-Iowa and one of the most senior members of the Senate, similarly said he would not consider a nominee during an election. He played a key role in 2016 as chairman of the Senate Judiciary Committee, vowing not to start the nomination process of Garland.
“Because I pledged that in 2016,” Grassley said, explaining his rationale. “That’s a decision I made a long time ago.”
The issue is also likely to be a challenge for moderate Republicans and those facing tough races in November. Polling has shown Democratic candidates up in several states, leaving the GOP’s 53-47 majority in danger.
A source close to McConnell told USA TODAY that this vacancy will leave the Kentucky Republican in a bind given how other Republican senators might react to the news of Ginsburg’s death.
“His hands may be tied,” the source said. “We just don’t know yet.”
Sen. Susan Collins, R-Maine, described Ginsburg as a “trailblazer for women’s rights, a fierce champion for equality.” Collins’ aides declined to discuss the senator’s thoughts on timing for a confirmation.
Sen. Lisa Murkwoski, R-Alaska, a key moderate in the chamber, already has poured cold water on the idea of filling a vacancy so close to November, telling The Hill in August that doing so would be a “double standard” after Garland.
“I would not support it,” she said.
Opponents said Trump and the Republicans would pay a political price if they try to rush a replacement onto the high court.
“This seat will be filled in due time,” tweeted Neal Katyal, a legal commentator and former acting solicitor general.
“If Trump tries to rush it, he will be monkeying with the Court, w/devastating consequences,” he said in a tweet. “For now, let’s take a deep breath and remember the legacy RBG left us.”
Sarah Isgur, a former Justice Department official during the Trump administration, said she doubts the Senate would confirm a nominee before Election Day, so the selection will be a huge election issue.
“Trump could name the nominee, but tell his voters they don’t get the seat unless they turn out to vote for him,” Isgur said. “Now he has the opportunity to force wobbly Rs to vote for him.”