This article is republished from The Conversation.
United States Supreme Court Justice Ruth Bader Ginsburg died on Sept. 18, thrusting the acrimonious struggle for control of the Supreme Court into public view.
President Trump and Senate Majority Leader Mitch McConnell have already vowed to nominate and confirm a replacement for the 87-year-old justice and women’s rights icon.
This contradicts the justification the Republican-controlled Senate used when they refused to consider the nomination of Merrick Garland, President Barack Obama’s pick for the Court after the death of Antonin Scalia in February 2016.
Garland, a moderate judge on the D.C. Circuit Court of Appeals, was nominated in March 2016, but McConnell balked on the basis that it was an election year.
“The American people are about to weigh in on who is going to be the president,” said McConnell in March 2016. “And that’s the person, whoever that may be, who ought to be making this appointment.”
The 2020 presidential election was just 46 days away on the day of Bader Ginsburg’s death, but McConnell has apparently abandoned such considerations this time around. Trump tweeted on Sept. 19 that he would nominate a replacement “without delay.” On Monday he said he will make the choice by the end of the week.
Since the 1990s, the Supreme Court has increasingly split 5-4 along ideological lines on many important cases, including decisions on voting rights, affirmative action, gay marriage, the Affordable Care Act, gerrymandering and gun rights.
Being able to replace a reliable liberal voice on the court with a conservative justice would entrench a 6-3 tilt towards the right for years. There is bound to be vehement opposition from the Democrats.
However the politics play out, there is a process for Supreme Court nominations and confirmations. Here are the four steps:
Step 1: The presidential pick
The first thing to know is that the Constitution of the United States gives the power of nomination to the president.
Article II, section 2 provides that the president “shall nominate, and by and with the advice and consent of the Senate, shall appoint … judges of the Supreme Court.”
By law, so long as he is in the White House, President Trump can nominate whomever he wants to replace Justice Ginsburg. Appointment is really a three-step process: nomination (by the president), confirmation (by the Senate), and appointment (by the president again).
Things can get tricky somewhere between nomination and confirmation. But changes made in the Senate – in particular, the rule change in 2017 that allows a Supreme Court Justice to be confirmed with 51 votes, instead of 60 – are likely to smooth the way considerably.
Step 2: The Senate Judiciary Committee
Once the president has made a choice, the nomination is referred to the United States Senate.
Since the early 19th century, this has meant that the nomination will first be considered by a smaller group within the Senate, the Senate Judiciary Committee. The only exception was in 2016, when the Judiciary Committee refused to consider President Obama’s nomination of Judge Garland.
The Judiciary Committee currently has 22 members – 12 Republicans and 10 Democrats – and has a three-step process of its own.
First, it conducts an investigation into the nominee’s background. This process can take 30 to 45 days, but it’s easy to imagine it going a lot faster.
Second, the committee holds a public hearing, in which the nominee is questioned and may give testimony about everything from her judicial philosophy to her stand on abortion. This may give voters a chance to see the Democratic vice presidential nominee, Kamala Harris, who also serves on the Judiciary Committee, display her prosecutorial skills during questioning of the nominee.
Finally, the committee will report its recommendation to the full Senate as either favorable, negative, or no recommendation.
The 10 Democratic members of the committee have already sent a letter to the chairman, Republican Sen. Lindsey Graham, calling on him to “state unequivocally and publicly that you will not consider any nominee to fill Justice Ginsburg’s seat until after the next President is inaugurated.”
But that seems highly unlikely, given Graham’s new statements backtracking from his 2018 assertions that he would not want a confirmation vote on a Supreme Court appointment in a presidential election year.
“I want you to use my words against me,” said Graham at the time, “[if] 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.”
Once the public hearings have concluded, if the Democrats want to buy time, they can delay the committee vote for a week. But after that, it’s on to the main floor of the Senate.
So let’s move on to the next stage, shall we?
Step 3: The full Senate
There are 100 senators in the United States Senate – two for each state. Currently, the Senate is majority Republican, with 53 Republicans, 45 Democrats and two Independents, who both caucus with the Democrats.
While the Senate has historically followed rules so arcane and incomprehensible that otherwise reasonable writers freely refer to them as “insane,” they can now be changed by a simple majority vote, which simplifies matters for the majority party considerably.
If the motion that the nomination be considered is made during a special “executive” session of the Senate, then the motion itself is debatable and can be blocked by filibuster – that movie-ready delay tactic in which which a senator recites Shakespeare, Dr. Seuss or recipes for fried oysters until everyone gives up and goes home.
But closing debate on the motion so that the Senate could move on to a vote no longer requires a supermajority of 60 votes, just a bare 51-Senator majority. So filibustering is likely to be about as effective as a paper hammer.
After that, the Democrats can insist on a minimum of 30 hours of debate, and then, they will be out of options to delay or stop a confirmation vote.
Step 4: The vote
The vote to confirm requires a simple majority of the senators present and voting. If the nominee is confirmed, the secretary of the Senate will transmit the confirmation vote to the president.
The president then will sign a commission appointing the person to the Supreme Court.
The timing
The real question is whether all of this can be accomplished before the election on Nov. 3, or if it will roll over into the lame-duck session of Congress after the election.
Either way it will be a first. The Senate has never filled a Supreme Court vacancy this close to a presidential election. The closest time in the past was when Chief Justice Charles Charles Evans Hughes resigned from the court to run for president. And that was 150 days before the election.
Caren Morrison is an associate professor of law at Georgia State University.
I believe the cliché is, “Where there’s a will, there’s a way.” Trump and McConnell, having already proved themselves free of ethics or conscience, will likely find a way to get this past any Democratic interference. With luck – the society’s only option at this point – it will prove to be the poison pill that finally kills the Republican Party as it stands today, but that will be cold comfort to the generation of citizens who have to live with unrepentant oligarchy, and what passes for “conservative thought” nowadays, legal and otherwise.
The confirmation of a Trump pick seems more likely than not. If when Inauguration Day comes around and we have a D President, Senate and House let’s hope they have learned something from Moscow Mitch and his colleagues: time for hardball without all of the lying and sniveling we have come to expect from the Rs:
Elimination of the filibuster.
Admittance of DC and Puerto Rico as states with 4 new likely D Senators and even more representatives.
If the R’s howl loudly enough, throw in Samoa and the US Virgin Islands to get to 8 new likely D Senators.
Expand the Supreme Court to 11 or 13 seats.
Protect Social Security for 100 years through a progressive tax approach.
Make the tax approach aggressive enough to give SS recipients a raise.
Add a public option to the ACA.
And that’s just getting started…
If the Democrats were as competent as your post imagines them to be we wouldn’t be in this mess in the first place.
The Democrats will fumble this like they always do and if they ever get back into power they will do absolutely none of these things.
If the Democrats go down that path, it will pour gasoline on the fire of the current partisanship. The result will be ugly, and probably not in the Democrats’ best interests.
Exactly!
Call it bribes, retribution or just doing the right thing but, $$ towards SS, the ACA, education all will ensure the loyalty of the masses as soon as they get just screwing the other guy does not make a lasting political organizing principle.
I’ll settle for expansion of ACA, environmental protections, offering states incentives for some police reforms with anti crime efforts, middle class tax breaks, working on expansion of trade schools and community colleges and a bipartisan effort for fair ground rules on court nominations. McConnell is out of control; the bottom line is he made the rule and it should now stick until some sort of bipartisan group comes up with fair rules. It’s like a monarchy run by Trump, McConnell and Graham who keeps spinning his head so much, he must have whiplash. Talk about disparities, these guys are a huge source. And these is why Dems need a reality check, lest they self destruct.
The elimination of the filibuster is the only path forward. The Ds are a long way from 60 votes (or 63 in the new 104 member Senate) and McConnell or whoever succeeds him will be as partisan as ever.
Demographics do not favor a GOP return to power and they will filibuster things to a standstill far in to the future as the 40% party.
End it as job 1 in the Biden administration and use it to achieve what you have called for:
“expansion of ACA, environmental protections, offering states incentives for some police reforms with anti crime efforts, middle class tax breaks, working on expansion of trade schools and community colleges and a bipartisan effort for fair ground rules on court nominations. ”
Of course it is important to win first…
The Democrats will pour gasoline on the fire lit by Republicans?
I think you need to think that through a bit.
In response to the unbridled and unprincipled ethical corruption of the “conservative” movement that this nomination represents, the first question is whether senate Dems are willing to shut down McConnell’s senate by withdrawing unanimous consent to anything, and using every means at their disposal (such as constant quorum calls) to force 51 Repub senators to sit in their senate seats up to the very minute of the election and then beyond….
Here is the deal. If Trump gets this through, he has appointed three Justices. Trump extracts promises and expects loyalty from anyone who supports him – and verbally assaults any judge who crosses him.
His three judges have a conflict of interest in any ruling that directly affects Trump. He is likely to demand that if he is ahead before the all the votes are counting to suspend the vote count. His three judges need to recuse themselves from the decision. That leaves three from each party, which means there would have to be a nonpartisan solution to any Trump challenge. If Trump’s request is obscene enough, I bet Roberts will vote with the Democrats.
That is the solution. He gets his appointment, but it doesn’t help him personally. The Supreme Court can overturn abortion rights and affordable healthcare, but if Biden wins and the Senate flips, Congress can write new legislation that ensures these rights. If justices try to find life begins at conception, not a concept from the Constitution Democrats can expand the court or even consider impeachment for legislating from the bench.
The really essential thing is to dump Trump and all 15 Republicans who lied regarding Garland starting with a McConnell. If you are part of any group Trump has gleefully attacked or hurt, it is time to fire him, his family and his cronies, and take away his Presidential immunity. Let his trials begin.
Sorry, but there isn’t a hope in hell that this is what the Trump Justices will do. Neither Gorsuch or Kavanaugh have recused themselves from any Trump-related case, and they were happy to vote to uphold his attempt to game the census. They will absolutely not recuse themselves on Trump’s planned request that the “conservative” majority declare him the winner of the election, based on his (now openly-boasted) strategy of claiming “election fraud”. Nor will the nice 45 year old lady extremist that Trump and McConnell plan on ramming through the senate this month recuse herself from anything. These extremists aren’t being put on the Court in order for them to recuse themselves on the cases most critical to Trumpolini and the “conservative” movement!
Hell, Kavanaugh vehemently stated his hatred of the Dem Party in his confirmation hearings, and yet as a “Justice” he sits on every election law case, consistently ruling against the very party for whom he publicly declared intense antipathy and bias. And no one says one word about this scandal.
The federal courts are now open Trump allies; the demagogue is happy to reveal that his election strategy is to use them to hold into power whatever the election results may be, and thus illegitimately remain in office. The “checks” on Trump are gone, and Repubs do not fear the electorate.
It’s quite clear that McConnell and Graham will do whatever is needed to be done to get a third rightwing extremist on the Court. The “rules” are essentially meaningless to a party drunk on the illegitimate will to power, backed by 40+% of a failed (overwhelmingly white) citizenry, motivated by whatever the hell it is they think they are supporting. A world of 24/7 unaccountable social media sewage was the final nail on the electorate’s coffin.
The “conservative” movement has now brazenly demonstrated it is (as we thought) utterly unprincipled and unjust, one that will literally say and do anything. There are no limits to its moral and ethical corruption, as this gambit proves.
Very difficult to know what to do at this point. If there is to be any hope, the first step is for the Dem leaders to openly declare that if the Repubs pull this stunt, they are willfully and intentionally de-legitimizing the Supreme Court, and of necessity the entire federal judiciary since the lower courts must follow the rulings of this (resulting) illegitimate Supreme Court. If Dems aren’t willing to take this essential step and call a spade a spade, then the democracy is most certainly lost. More likely, this is pretty much the end.
Much of what is missed here is back when Harry Reid was the Senate Majority leader and started the elimination of the 60 vote cloture (ending of the filibuster) for presidential appointments. Many Republicans loudly warned that would open up a can of worms and nothing but problems in the future. Well, here we are.
It’s funny that much of the current dissent is that the GOP needs to follow their precedent from before, yet the Dems have also flip flopped many times, with Biden doing more than twice already in his long time in the Senate and as VP. The Constitution says the President can nominate anyone and that with advice of the Senate will accept or decline the nominee. There is no set timetable on when it occurs. That in 2016, the people spoke as Obama was president and that the GOP held the Senate. Senate leadership decided not to put forward Obama’s nominee. That the GOP wants to put forward a nominee in 2020 is irrelevant to what transpired in 2016. If there was a Dem president and Dem controlled Senate, it is sure as rain that the same thing would have happened. After what transpired in the Kavanaugh hearings plus basically every conservative nominee for the last few decades going back to Clarance Thomas and Robert Bork, the Dems will stop at nothing and never seem to go lower in their personal attacks. It’s already happening to a potential nominee that has not even been named!
As I mentioned, if Reid did not do what he did, the Dems would have nothing to worry about. Be as mad as you like, that’s where it started and made the rules as they are for the Senate.
It’s nice that you can rationalize the unethical and unprincipled corruption of this gambit by McConnell and his minority faction “majority”, but everything you “rely” upon is either false or irrelevant to the situation at hand.
1. Reid abolished the filibuster for lower court appointments, not the Supreme Court. McConnell did that when Dems (justly) filibustered Trump’s stolen-seat pick of Gorsuch in 2017.
2. Whatever Reid did with the filibuster in 2013 has nothing to do with the “rule” McConnell manufactured in 2016 that the senate should not fill a Supreme Court vacancy in the year of a presidential election and that “the people” were to be “given a voice” in the selection of the next Justice. (And BTW, 3+ million more of “the people” voted for the Dem candidate, Clinton, not the unqualified, mentally-unbalanced ignoramus who “won” the electoral college.)
3. There’s no Dem “flip-flopping” on this point. Indeed, a Dem senate confirmed St Reagan’s choice of Anthony Kennedy within 10 months of the election of a “new president” in Feb, 1988.
4. Whatever happened to Kavanaugh or anyone else has nothing to do with the unprincipled nature of McConnell’s decision to make up a phony “rule” in 2016 because it aided “conservative” interests and then refuse to apply the same rule in 2020 because its application now wouldn’t advance “conservative” interests.
This is an utterly unprincipled, unprecedented scandal, and proof of the anti-democratic, authoritarian nature of the “conservative” movement and its supporters. But I am sure from your comment that you cannot be made to see that.
Picking out the most ridiculous parts of your comment wasn’t easy, but I think I have it.
“That the GOP wants to put forward a nominee in 2020 is irrelevant to what transpired in 2016.”
Not by a long shot. These are the same Senators who so piously invoked the people’s right to have input on the nominee in 2016. There is no reason not to hold their words against them, especially since at least one of them invited us to do so. Hypocrisy and hyperpartisanship are traits that can be used to describe Republicans.
“If there was a Dem president and Dem controlled Senate, it is sure as rain that the same thing would have happened.”
We don’t know that, and it may be some years before we do.
“After what transpired in the Kavanaugh hearings plus basically every conservative nominee for the last few decades going back to Clarance Thomas and Robert Bork, the Dems will stop at nothing and never seem to go lower in their personal attacks.”
I remember the Bork hearings. He was questioned on his judicial and legal philosophy, and asked questions about his published writings. Please check your right-wing information sources for the explanation as to why this was improper (or, on a more fundamental level, why that constitutes a “personal attack”). Justice Thomas had credible allegations of sexual harassment raised against him, that were brushed off indignantly rather than refuted. Brett Kavanaugh had a witness willing to testify under oath that he sexually assaulted her, but he now sits on the Supreme Court (Dr. Ford is still receiving threats and has had to move and give up her teaching position because she dared to speak against a man).
How about the other three conservatives since Bork? Kennedy? Alito? Roberts? Gorsuch? What were the “personal attacks” against them?
Bork did himself in by enabling the Saturday Night Massacre.
Perhaps some history would round out the reasoning behind Bork’s rejection. He was no Sunday school teacher. Bork was the only one Nixon could get to fire the special prosecutor– something partisan warriors might recall Trump attempted too.
https://en.wikipedia.org/wiki/Saturday_Night_Massacre
[refresher from Wiki]
“Saturday Night Massacre[1] refers to a series of events that took place in the United States on the evening of Saturday, October 20, 1973, during the Watergate scandal. U.S. President Richard Nixon ordered Attorney General Elliot Richardson to fire Special Prosecutor Archibald Cox; Richardson refused and resigned effective immediately. Nixon then ordered Deputy Attorney General William Ruckelshaus to fire Cox; Ruckelshaus refused, and also resigned.”
“Nixon then ordered the third-most-senior official at the Justice Department, Solicitor General Robert Bork, to fire Cox. Bork carried out the dismissal as Nixon asked.[2] Bork claimed that he intended to resign afterward, but was persuaded by Richardson and Ruckelshaus to stay on for the good of the Justice Department.[3][4]”
Bork was yesterday’s version of William Barr.
I think there are enough procedural tricks Democrats can do to delay the vote until after the election, which is now less than six weeks away. Obviously Trump is going to get his 3rd pick, and I think it will happen in the lame duck. This way Susan Collins (who is likely going to lose her seat) can do what McConnell wants her to without having to answer to her constituents. Murkowski isn’t up for reelection for two more year, and McConnell, who will likely win another term by a small margin can slide comfortably into the minority leader position knowing he’s stacked the courts.
The real trick will be to see if Democrats can get down in the mud with Republicans after January. Schumer has already said the filibuster is gone, but I don’t think that’s punishing Republicans enough. Real SCOTUS reform is needed.