Can a Supreme Court Justice Be Replaced in an Election Year?

Abigail Covington
·3 mins read
Photo credit: Chip Somodevilla - Getty Images
Photo credit: Chip Somodevilla - Getty Images

From Esquire

It was only an hour after the announcement of Justice Ruth Bader Ginsburg’s death, but political games were already being played. In a statement he posted on Twitter, Majority Senate Leader Mitch McConnell confirmed that he intended to bring a vote on President Trump’s nominee to the senate floor before the election in November. This is despite the fact that in 2016, McConnell refused to call for a vote on President Obama’s Supreme Court nominee Merrick Garland because it was an election year. At the time, there were three hundred and forty-two days left in Obama’s second term. As of today, there are only 45 days until the 2020 presidential election.

McConnell’s hypocrisy is breathtaking, and his attempts at defending himself against accusations of such are getting thinner and thinner. According to his statement, the current situation is different from 2016 because now, the president and the senate are of the same party. Or as Michelle Goldberg put it in the New York Times: "His tortuous excuse is that his made-up rule is meant to apply only when the Senate and the presidency are controlled by different parties."

Senator McConnell's Full Statement

“In the last midterm election before Justice Scalia’s death in 2016, Americans elected a Republican Senate majority because we pledged to check and balance the last days of a lame-duck president’s second term. We kept our promise. Since the 1880s, no Senate has confirmed an opposite-party president’s Supreme Court nominee in a presidential election year. By contrast, 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. Once again, we will keep our promise. President Trump’s nominee will receive a vote on the floor of the United States Senate.”

The statement is a half-baked and muddled attempt at justifying what is painfully clear: That McConnell intends to proceed with the nomination because Trump is a Republican, and McConnell is an unprincipled party loyalist who is more than willing to make up the rules as he goes so long as his team wins.

The only question that remains is can McConnell get away with it? And the answer is, yes — if he has the votes.

According to Vox, Supreme Court justices can now be confirmed with a simple majority of Senate votes, thanks to a rules change that Republicans conveniently enacted in 2017. That means a nominee only needs to get 51 votes. If there were a 50-50 tie, Vice President Mike Pence could step in and cast a vote. It's currently unclear whether or not McConnell has the votes necessary to confirm Trump's yet-to-be announced nomination.

Republicans currently have a 53-47 majority in the Senate which means that, similar to the Brett Kavanaugh confirmation, the decision will likely be made by a handful of moderate Republicans including Senator Lisa Murkowski of Alaska; Senator Mitt Romney of Utah; Senator Susan Collins of Maine; and Senator Charles Grassley of Iowa. The issue is further complicated by a special election currently taking place in Arizona. Democrat Mark Kelly is running against Republican Martha McSally. If Kelly wins, he'd likely be seated by November 30th which could be in time for a vote on the new Supreme Court nominee. Then only three Republicans, instead of four, would be necessary to halt the nomination process.

According to Ginsburg’s granddaughter, the justice made a dying wish: “My most fervent wish is that I will not be replaced until a new president is installed.” It is now up to American people and their elected officials to see that wish through.

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