The death of Supreme Court Justice and liberal icon Ruth Bader Ginsburg created a judicial vacancy — and a political storm — just 46 days before a sharply contested presidential election. That’s not a lot of time for a Republican Senate to consider and vote on whomever President Trump nominates this week. But the Senate could still confirm Ginsburg’s successor either days before or after the November election — even were Democrats to gain control of the White House, Senate, or both.
Here’s what lies ahead in the Senate.
The minority has rights, but little power
The Senate’s formal rules and chamber precedents — alongside the Senate Judiciary Committee’s rule book — direct the handling of Supreme Court nominations. Senate rules send nominations straight to the committee, where investigators and staff vet the backgrounds of nominees. It’s been nearly 70 years since a nominee skipped the Judiciary Committee. And since 1975, it’s taken on average 40 days from nomination to a hearing and another week until a committee vote. Trump’s first two nominees, Justices Neil M. Gorsuch and Brett M. Kavanaugh, waited 47 and 56 days, respectively, for their hearings to start.
If Democrats want to drag their feet on the nominee to buy time to marshal public opinion against the nominee, the panel’s rules give the minority party significant parliamentary rights to do so. One committee rule allows any member of the committee to delay a meeting of the committee by a week; another rule requires that a committee quorum to do business must include at least two senators from the minority party. Given the time crunch for considering a nomination, Democrats could theoretically exploit the rules to slow down the nominee’s path to a confirmation vote.
But there’s a hitch. Committee rules grant the minority party parliamentary rights, but that doesn’t deliver much power in today’s highly partisan Senate. It’s tough for the minority to enforce their prerogatives under the rules if the majority party is determined to ignore the rules. Just last year, Sen. Lindsey O. Graham (R-S.C.), the committee chairman, swept aside Democrats’ protests when he ignored committee rules and pushed a controversial measure to a vote. Democrats’ theatrics — including ripping up the committee’s rule book — did little to stop Republicans.
A Senate majority rules
Once the Judiciary Committee issues its recommendation, the full Senate considers the nomination. The Republican Senate exploited the “nuclear option” in 2017 to require only a simple majority of the Senate — rather than the customary three-fifths — to cut off debate via cloture and to bring the Senate to a confirmation vote. By lowering the threshold for the number of votes required to stop debate, GOP-led Senates prevented filibusters of Trump’s first two court nominees over the objections of nearly every Democrat.
Democrats could still exploit the rules to slow down consideration of the nomination by maxing out on the number of speeches allowed under the rules or by refusing to grant consent to the GOP leader when he invariably needs to secure chamber-wide agreement to set the Senate’s floor agenda. But once Senate Majority Leader Mitch McConnell (R-Ky.) files a cloture motion to end debate, Senate rules start the countdown to a cloture vote and, if successful, a confirmation vote. Under Senate rules, the clocks runs for about three days until the confirmation vote.
If every Democrat opposes cloture, four GOP defections would prevent the 53-seat GOP majority from being able to vote to confirm the nominee. Among Republicans, only Susan Collins of Maine has explicitly endorsed allowing the winner of the presidential election to make the appointment, while Alaska’s Lisa Murkowski has said she does not believe the Senate should fill the vacancy before the election. If only one more GOP senator breaks ranks, Vice President Pence could break the 50-50 tie on both the procedural motion to end debate and on confirmation.
The Senate has recently confirmed to the appellate bench three of the women touted by Trump as potential candidates for the court, and those attracted some Democratic votes. Three Democrats voted to confirm Amy Coney Barrett in 2017: Tim Kaine (Va.), Joe Manchin III (W. Va.), and Joe Donnelly (Ind.), who lost his seat in 2018 after opposing Kavanaugh’s confirmation. And 25 Democrats and one independent supported Barbara Lagoa in 2019, though none voted for Allison Rushing in 2019. Past votes, however, don’t constrain senators when they vote on Supreme Court nominations. Democrats (or in theory Republicans) could well justify opposing any of them now on grounds of the heightened importance, power and makeup of the Supreme Court.
Democrats will socialize the conflict
Senate Democrats seem to recognize that the parliamentary deck favors Republicans confirming Trump’s nominee, if not before the election then in the weeks thereafter. Democrats could be still more confrontational, blowing up other procedural bridges — such as objecting to the myriad times the majority leader asks for unanimous consent to make the chamber run smoothly — or refusing to pass the stopgap measure to prevent a government shutdown on Oct. 1 unless, say, McConnell guarantees the Senate won’t consider a nominee until January. But Senate Democrats seem to have a limited appetite for going for the jugular, especially if they could be blamed for shutting down the government with elections approaching amid the pandemic.
Instead, Democratic nominee Joe Biden and the Democrats appear more inclined to adopt the strategy named by political scientist E.E. Schattschneider decades ago: “Socialize the conflict” over the Supreme Court vacancy, raising the stakes of the upcoming elections to inspire more Democratic voters to actually cast ballots. After Ginsburg’s passing, Senate Minority Leader Charles E. Schumer urged his colleagues to emphasize to voters how much the Supreme Court fight meant for women’s reproductive rights, for the fate of the Affordable Care Act and pandemic health-care protections, and for legions of other policies favored by popular majorities and protected by Supreme Court precedents so far.
That strategy could of course energize Republicans in deep-red states as well as Democrats in states trending blue. But it raises a chance, however small, of persuading two or three more Republicans to break ranks to block swift confirmation of Trump’s nominee.