As the U.S. took in the news of the death of Supreme Court Justice Ruth Bader Ginsburg on Friday, it quickly ignited questions and discussions about what will happen to the Supreme Court vacancy the judicial titan leaves behind.
Ginsburg died Friday at the age of 87 from complications surrounding metastatic pancreatic cancer. She was appointed to the court in 1993 by then-President Bill Clinton.
After the news broke, lawmakers barely had a chance to take in the news of Ginsburg’s death before their respective party leaders in the Senate put their cards on the table for the upcoming political battle.
In a close court, where 5-4 decisions are not uncommon, if a Republican president were to replace the most liberal justice with a conservative, it would mark a colossal swing in the court’s outlook — and any confirmation process is likely to be grueling.
Senate Minority Leader Chuck Schumer, D-N.Y., immediately issued a statement in which he gave a repetition of Senate Majority Leader Mitch McConnell’s, R-Ky., statement after the death of conservative Justice Antonin Scalia in 2016.
“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,” he said.
McConnell in 2016, with Republican control of the Senate and Democratic President Barack Obama in the White House, refused to consider Merrick Garland, Obama’s pick to fill Scalia’s seat, during the election year — a move that was met with fury by Democrats.
Consequently, Democrats have alleged it would be hypocritical for Republicans to try and fill the seat in an election year now. But McConnell has repeatedly said that the rule only applies in an election year when an opposition party from the White House holds the Senate.
It was a statement he reiterated on Friday when he indicated that a Trump nominee to fill the Ginsburg seat would receive a vote.
“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,” he said. “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,” McConnell said.
“President Trump’s nominee will receive a vote on the floor of the United States Senate,” he added.
The first step would be for Trump to nominate a candidate. Last week, Trump released a list of 20 Supreme Court picks for a potential vacancy, and it is likely he will stick to that list. Top candidates for the position are believed to include Judges Amy Coney Barrett, Britt Grant, Amul Thapar, Steven Colloton, Allison Eid, Raymond Gruender, Thomas Hardiman, Raymond Kethledge, Joan Larsen, Barbara Lagoa, Thomas Lee, David Stras, Allison Jones Rushing and Don Willett.
Barrett, Hardiman and Kethledge were, along with now-Justice Brett Kavanaugh, on Trump’s final shortlist for his pick to replace Justice Anthony Kennedy in 2018.
Should Trump nominate a replacement for Senate confirmation, it will then need to be considered and voted on by the Senate Judiciary Committee, where Sen. Lindsey Graham, R-S.C., is the chairman.
While the committee is Republican-controlled, Graham himself said in 2018 that Republicans would not fill a SCOTUS vacancy in an election year, saying “we’ll wait to the next election.”
However, earlier this year, Graham said that the fight over Merrick Garland was a “different situation.”
“You had the president of one party nominating, and you had the Senate in the hands of the other party. A situation where you’ve got them both would be different,” he said.
On Friday, he paid tribute to Ginsburg as a “trailblazer who possessed tremendous passion for her causes” but did not make any statement about the confirmation process.
Ranking Democrat on the committee, Sen. Dianne Feinstein, D-Calif., made her stance clear in a statement Friday: “Under no circumstances should the Senate consider a replacement for Justice Ginsburg until after the presidential inauguration.”
“Merrick Garland was nominated to fill Scalia’s seat on March 16, 2016 — 237 days before the presidential election,” she said. “Today, we’re just 46 days away from an election. To jam through a lifetime appointment to the country’s highest court — particularly to replace an icon like Justice Ginsburg — would be the height of hypocrisy.”
The Judiciary Committee is where the nominee will face what is likely to be an intense grilling from lawmakers. In the white-hot partisan fire of an election year, and considering the controversy surrounding any such nomination, it is likely that the intensity of the questioning will match or exceed the drama and emotion that accompanied the confirmation of Kavanaugh in 2018.
Should the committee send the nomination to the Senate for a confirmation vote, the pick will need 51 votes to avoid a filibuster and be confirmed by the upper chamber. There are 53 Republicans in the Senate, meaning they can only lose two Republicans, or lose three and confirm the nominee on a tie vote with Vice President Mike Pence breaking the tie.
On Friday, hours before Ginsburg’s death was announced, Sen. Lisa Murkowski, R-Ala., was asked whether she would not vote to confirm a nominee in an election year.
“I would not vote to confirm a Supreme Court nominee. We are 50 some days away from an election,” she told Alaska Public Media.
Such a scenario would likely put considerable pressure on Republican senators up for re-election this year, including Sens. Cory Gardner, R-Colo., Joni Ernst, R-Iowa., Susan Collins, R-Maine, and Martha McSally, R-Ariz.
There is also the question of timing. There is an average in recent years of 40 days between a nomination and a confirmation hearing, raising the question of whether it is even possible to get a justice confirmed in the 46 days remaining until Election Day.
Fox News’ Bill Mears and Chad Pergram contributed to this report.