Ruth Bader Ginsburg’s death has left the nation mourning the late justice, but also questioning what will happen next with a now-vacant seat in the Supreme Court — just 46 days before an already historic presidential election.
Ginsburg was appointed to the Supreme Court in 1993 by then-President Bill Clinton, becoming the second woman to serve on the highest court. By the time of her death, she was the leader of the liberal side of the court.
Now, there are three justices who are considered liberal-leaning: Stephen Breyer, Sonia Sotomayor and Elena Kagan. Rounding out the group of justices are Chief Justice John Roberts Jr., Clarence Thomas, Samuel Alito Jr., Neil Gorsuch and Brett Kavanaugh, all of whom lean on the conservative side.
With the Nov. 3 election fast approaching, President Donald Trump has urged the Republican-led Senate to appoint his nomination “without delay.” However, many other leaders have pointed out that Senate Majority Leader Mitch McConnell blocked former President Barack Obama’s nomination after Justice Antonin Scalia's death in 2016, claiming the Senate should wait for a new president to be elected.
How Is the Nominee Chosen?
Trump will nominate a candidate to fill the Supreme Court vacancy and the Senate will then vote on whether or not to confirm the nominee.
The president has about 40 potential nominees to choose from, having updated his list with 20 new names a week prior to Ginsburg’s death. Republican senators Tom Cotton of Arkansas, Ted Cruz of Texas and Josh Hawley of Missouri were the new names added to the list.
Before updating the list, The New York Times reported that Trump had singled out three judges who are believed to be the front-runners for the nomination: Amy Coney Barrett, of the United States Court of Appeals for the Seventh Circuit in Chicago, Thomas M. Hardiman of the Third Circuit in Philadelphia and William H. Pryor Jr., who serves on the 11th Circuit in Atlanta.
Once a nominee is chosen, a majority of the Senate must vote to confirm. Republicans control the Senate by a 53-47 margin, meaning they could lose three votes and still confirm Trump’s pick, with Vice President Mike Pence breaking a 50-50 tie.
Will the Senate Fill the Vacant Seat Before the Election?
Just days prior to her death, Ginsburg told her granddaughter Clara Spera that she did not want her vacancy filled until a new president has taken office. "My most fervent wish is that I will not be replaced until a new president is installed," Ginsburg dictated to Spera, according to NPR.
Despite her wish and his previous blocking of Obama’s nominee, McConnell has vowed that the Senate will vote on Trump’s chosen replacement for Ginsburg. “President Trump’s nominee will receive a vote on the floor of the United States Senate,” McConnell said in a statement issued just hours after Ginsburg's death.
Though McConnell has promised the vote will happen, the Associated Press reported that past Supreme Court nominations have taken around 70 days to move through the Senate. The last Supreme Court nomination, for Brett Kavanaugh, took even longer.
As of Saturday, the Nov. 3 election is only 45 days away.
If the nomination is not confirmed prior to the election, Republicans could still vote on Trump’s nominee during the “lame duck” session — the time between the election and Jan. 3, when the next Congress takes office.
What Have Senators Said?
A handful of Republican senators have spoken out saying they will not confirm a Supreme Court nominee before the election, while others have explicitly supported McConnell’s promise to move ahead with Trump's nominee.
On Friday evening, Sen. Ted Cruz told Fox News' Sean Hannity that “the president next week should nominate a successor to the court” despite saying in 2016 that “there is a long tradition that you don’t do this in an election year,” referring to Supreme Court nominations.
Sen. Susan Collins of Maine recently told The New York Times that she would not vote for a Supreme Court justice in October. “I think that’s too close, I really do,” she said earlier this month, though she has made no mention of how she will vote since the news of Ginsburg’s death.
What Have Trump and Biden Said?
On Saturday, Trump tweeted that the Senate should confirm his nominee “without delay.”
“[email protected] We were put in this position of power and importance to make decisions for the people who so proudly elected us, the most important of which has long been considered to be the selection of United States Supreme Court Justices,” the president wrote. “We have this obligation, without delay!”
In his own statement, delivered live to the press after Ginsburg's death was made public, Democratic Presidential nominee Joe Biden issued a strong rebuttal of McConnell's wishes to confirm a justice before the upcoming election.
"Let me be clear: the voters should pick the President and the President should pick the Justice for the Senate to consider," the former vice president said. "This was the position the Republican Senate took in 2016, when there were almost ten months to go before the election. That's the position the United States Senate must take today."
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