Can the Senate Fill RBG's Supreme Court Justice Seat Before the Election?

Sara Li
·6 mins read
Photo credit: Alex Wong - Getty Images
Photo credit: Alex Wong - Getty Images

From Seventeen

Supreme Court Justice Ruth Bader Ginsburg’s dying wish was not to have her seat filled until after the presidential election, according to NPR. But just hours after her passing, Senate Majority Leader Mitch McConnell made the following (rather unsurprising) statement: "President Trump’s nominee will receive a vote on the floor of the United States Senate."

Now, whoever fills RBG's vacancy will have astronomical power in policies that could completely alter the future of this country—so to say there is a sense of urgency from both parties is an understatement. As voters look toward the election—which, may I remind you, is only weeks away on November 3—there's one question on everyone's minds: Could the Senate really force through a SCOTUS nominee? The short answer: Yes.

Ahead, we answer all the burning ?????? about what's really going on and what might happen.

First things first: isn't it hypocritical that McConnell wants to fill RBG's seat when he wouldn't hold Senate hearings to fill Antonin Scalia's open seat in 2016, another election year?

Yes! It is hypocritical. Thank you for asking. In 2016, McConnell refused to hold Senate hearings for Merrick Garland, President Obama's nominee. At the time, McConnell said, "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." Sure, dude.

But hypocrisy doesn't really matter, right?

Correct! McConnell doesn't seem to care—and it turns out, neither do his GOP colleagues. A number of Republica Senators have thrown their support in favor of a vote before the presidential election, even though they don't know the nominee just yet. Among these are:

  • Richard Shelby (R-AL)

  • Tom Cotton (R-AR)

  • Martha McSally (R-AZ)

  • Rick Scott (R-FL)

  • David Perdue (R-GA)

  • Kelly Loefler (R-GA)

  • Mike Braun (R-IN)

  • Jerry Moran (R-KS)

  • Roy Blunt (R-MO)

  • Cindy Hyde-Smith (R-MS)

  • Steve Daines (R-MT)

  • Thom Tillis (R-NC)

  • Lindsey Graham (R-SC)

  • John Thune (R-SD)

  • Lamar Alexander (R-TN)

  • Marsha Blackburn (R-TN)

  • John Cornyn (R-TX)

  • Ted Cruz (R-TX)

  • Ron Johnson (R-MN)

  • John Barrasso (R-PA)

On Tuesday, Mitt Romney also agreed. "If the nominee reaches the Senate floor, I intend to vote based on their qualifications."

As of right now, only two GOP leaders (Sen. Lisa Murkowski of Alaska and Sen. Susan Collins of Maine) have said they would not vote on a nominee so close to the election. "In fairness to the American people, who will either be reelecting the president or selecting a new one, the decision on a lifetime appointment to the Supreme Court should be made by the president who is elected on November 3," Collins said on Saturday.

So what has President Trump said?

Trump has told the press that he intends to replace RBG and select a Supreme Court Justice nominee from a pool of five women. He also mentioned he will likely announce his nomination on Saturday. Yeah, *this* Saturday. His shortlist is said to include Judge Amy Coney Barrett, a Federalist who is popular among Conservatives, and Judge Barbara Lagoa, a Cuban-American who sits on the United States Court of Appeals for the 11th Circuit.

Could the Democrats filibuster and block Trump's nominee if they reach the Senate floor?

Nah, not possible. Because of some recent changes to the rules of the hearings, all McConnell needs is a simple majority vote to confirm Trump's nominee.

Has a SCOTUS Justice nominee ever been confirmed this quickly before?

Nope! The fastest confirmation in recent history happened in 1981 when the Senate confirmed Sandra Day O'Connor in 33 days.

Hypothetically speaking, what would happen if the Senate does not vote on a nominee before the election, and the Republicans lose the Senate or White House? Could they confirm a nominee after the election?

Yup. Even though they would be what's known as "lame duck elected officials," Congress reconvenes after Election Day to tie up all their loose ends...and you know this would be a big one. Newly-elected officials don't take office until January and the Senate could confirm a nominee during this time.

What are the Dems saying about all this?

A number of Democratic officials have said they will be doing everything in their power to block the Senate vote from happening. "We must consider, again, all of the tools available in our disposal and that all of these options should be entertained and on the table," said Rep. Alexandria Ocasio-Cortez. She also made this video that's gone viral.

House Speaker Nancy Pelosi appears to share the same sentiments, telling the press that impeachment has not been ruled out. "We have our options. We have arrows in our quiver that I’m not about to discuss right now, but the fact is we have a big challenge in our country," Pelosi said. "We have a responsibility. We take an oath to protect and defend the Constitution of the United States. We have a responsibility to meet the needs of the American people."

Sen. Minority Leader Chuck Schumer called out McConnell's hypocrisy regarding Judge Garland and told Congressional Democrats that "nothing is off the table next year" if McConnell moves to fill RBG's vacant seat.

If I have strong feelings about *waves hands* all this, is there anything I can do?

If you oppose McConnell's campaign to move forward with a super fast SCOTUS nomination process, call your representatives and ask them to reject the vote. Elected officials are meant to serve the people and many senators (including McConnell) are up for reelection this November. Whoever fills RBG’s seat will have a say in hugely important, sometimes life-changing laws for the foreseeable future, including but not limited to reproductive rights, climate change, Black Lives Matter, and gender equality.

And whatever you do, VOTE ON NOVEMBER 3. Casting a ballot obviously can't change what happens *ahead* of the election, but it can influence what comes after. If you still haven't ironed out your election plans, man, do we have the perfect voting guide for you!

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