WHAT’S NEXT WITH THE SUPREME COURT VACANCY?
A look at the confirmation process and what is known and not known about what’s to come:
CAN THE SENATE FILL THE SEAT BEFORE THE ELECTION?
Yes, but it would require a breakneck pace. Supreme Court nominations have taken around 70 days to move through the Senate, and the last, for Brett Kavanaugh, took longer. The election is 45 days away. Yet there are no set rules for how long the process should take once President Donald Trump announces his pick, which could come in a matter of days. Some nominations have moved more quickly. It will come down to politics and vote tallies.
WHAT DOES IT TAKE TO CONFIRM A NOMINEE?
Only a majority. Republicans control the Senate by a 53-47 margin, meaning they could lose up to three votes and still confirm a justice, if Vice President Mike Pence were to break a 50-50 tie. Supreme Court nominations used to need 60 votes for confirmation if any senator objected, but McConnell changed Senate rules in 2017 to allow the confirmation of justices with 51 votes. He did so as Democrats threatened to filibuster Trump’s first nominee, Justice Neil Gorsuch.
HOW DOES THE CAMPAIGN FACTOR IN?
Republicans are defending 25 of the 38 seats that are on the ballot this year, and many of their vulnerable members have been eager to end the fall session and return home to the campaign trail. The Senate is scheduled to recess in mid-October, though that schedule could change. Still, many of the most vulnerable senators may be hesitant to vote on a nominee before facing voters in November, and their views could ultimately determine the timeline for action. Others may want to campaign on their eventual vote.
CAN THE SENATE FILL THE VACANCY AFTER THE ELECTION?
Yes. Republicans could vote on Trump’s nominee in what’s known as the lame-duck session that takes place after the November election and before the next Congress takes office on Jan. 3. No matter what happens in this year’s election, Republicans are still expected be in charge of the Senate during that period. The Senate would have until Jan. 20, the date of the presidential inauguration, to act on Trump’s nominee. If Trump were reelected and his pick had not been confirmed by the inauguration, he could renominate his pick as soon as his second term began.
HOW DOES THE PROCESS WORK?
When a vacancy occurs on the Supreme Court, the president is given authority under the Constitution to nominate someone to fill it. It is up to the Senate Judiciary Committee to vet the nominee and hold confirmation hearings. Once the committee approves the nomination, it goes to the Senate floor for a final confirmation vote. This process passes through several time-consuming steps. Traditionally senators want to meet and assess the nominee themselves, which requires weeks of meetings around the Capitol. And that’s all assuming the process goes smoothly. In 2018, Kavanaugh’s confirmation fight took weeks longer than expected after Christine Blasey Ford accused him of sexually assaulting her when they were teens. Kavanaugh denied the accusation and was confirmed by the Senate in a 5149 vote.