How McConnell can push nominee vote forward,
Hours after the Supreme Court announced the death of Justice Ruth Bader Ginsburg on Friday night, Sen. Mitch McConnell of Kentucky, the majority leader, vowed that the Senate would vote on a replacement named by President Donald Trump, setting up what is all but guaranteed to be a heated fight over the nation’s highest court that carries heavy political consequences.
That statement answered the question of whether McConnell, who in 2016 blocked outgoing President Barack Obama’s Supreme Court nominee because it was an election year, would try to confirm one named by Trump so close to an election. He would. Now the question is, can McConnell pull it off?
The process is likely to be ugly, but it can be done. Here’s how it works.
Can Democrats block Trump’s nominee through a filibuster? No.
Democrats eliminated the 60-vote threshold for most judicial nominees in 2013, frustrated by Republicans’ use of the filibuster to slow and impede Obama’s agenda. In turn, angered by resistance to the nomination of Justice Neil Gorsuch in 2017, Republicans abolished the limitation on Supreme Court nominees, further whittling down the scope of the filibuster.
As a result, McConnell could bring the nomination to the Senate floor and approve it with a simple majority vote. Trump signaled
Saturday that he would formally name someone to fill the vacancy in the near future.
“We have this obligation, without delay!” he tweeted, referring to the selection of justices.
It remains unclear, however, whether McConnell, himself up for reelection along with a handful of vulnerable Republican incumbents, will try to advance the nomination before Election Day. He could also opt to do so in a lame-duck congressional session after Nov. 3.
Does McConnell have the votes to confirm a nominee? It depends.
Because Republican hold a slim majority — 53-47 — Democrats would need only four Republicans to join them in opposition to sink the nominee. (In the case of a tie, Vice President Mike Pence, in his role as president of the Senate, would cast a tiebreaking vote.)
Given McConnell’s decision to refuse so much as a hearing for Merrick Garland, Obama’s pick upon the death of Justice Antonin Scalia in 2016, a handful of Republicans have signaled a desire to wait until after Election Day to approve a nomination. It is unclear, however, what objections remain to approving a nomination in the lame-duck session between November and the start of a new Congress in January.
Which Republicans might defect? Sen. Susan Collins of Maine, and
Sen. Lisa Murkowski of Alaska, are the most likely. Murkowski told a local radio station in an interview before Ginsburg’s death was announced that she would not vote to confirm a Supreme Court nominee before Election Day.
Other top Republicans, including Sen. Lindsey Graham of South Carolina, the Judiciary Committee chairman, and Chuck Grassley of Iowa, have previously expressed similar reservations given their party’s blockade of Garland in 2016, although it is unclear whether they will hold to their previous remarks.
“I want you to use my words against me,” Graham said in 2016. “If there’s a Republican president in
2016 and a vacancy occurs in the last year of the first term, you can say Lindsey Graham said let’s let the next president, whoever it might be, make that nomination.”
But Saturday, Graham, a loyal ally of Trump’s who is facing a more difficult than expected reelection fight, signaled that he has changed his mind since then, pointing to comments he made this year in which he said that after the bruising battle over Justice Brett Kavanaugh’s confirmation, “the rules have changed, as far as I’m concerned.”