Democrats’ last hope to stop Trump from replacing Ruth Bader Ginsburg rests with a handful of Republican senators

  • The death of Supreme Court Justice Ruth Bader Ginsburg has reignited critical questions about whether President Donald Trump will be able to force through a nominee to replace Ginsburg, and what, if anything, Democrats can do to stop it.
  • Given the current makeup of the US Senate — 53 Republicans, 45 Democrats, and two Independents who caucus with Democrats — the minority party has no power to stop the president and Senate Majority Leader Mitch McConnell if they decide to push a confirmation through.
  • With 46 days until Election Day, Democrats’ hopes rest on a handful of Republican senators who may break ranks to stop the president from being able to get a third Supreme Court justice confirmed.
  • Sen. Lisa Murkowski, of Alaska, said hours before Ginsburg’s death that she would not vote to confirm a Trump nominee until after November 3.
  • Maine Sen. Susan Collins, who is facing a tough reelection fight, said she would not vote to confirm a Supreme Court justice in October, and she would also not vote to seat a justice in the lame-duck period if Trump loses the election.
  • Retiring Sens. Lamar Alexander and Pat Roberts, as well as Utah Sen. Mitt Romney, have all been floated as potential swing votes along with Collins and Murkowski.
  • And Sen. Lindsey Graham, the chairman of the powerful Senate Judiciary Committee, said in October 2018 that “if an opening comes in the last year of President Trump’s term, and the primary process has started, we’ll wait to the next election.”
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The death of Supreme Court Justice Ruth Bader Ginsburg on Friday sent shockwaves through the country. It also reignited long-running questions about whether President Donald Trump will be able to force through a nominee to replace Ginsburg and what, if anything, Democrats can do to stop it.

The short answer is that, given the current makeup of the US Senate, Democrats have no power to stop Trump on their own if he and Senate Majority Leader Mitch McConnell decide to push a confirmation through. With 46 days to go until Election Day, Democrats’ hopes rest on a handful of Republican senators who may break ranks to vote against Trump’s nominee.

Following the death of Justice Antonin Scalia in February 2016, McConnell said in a statement, “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.”

At the time, the senator from Kentucky indicated that should a similar scenario arise in 2020, he would not hold off until the election.

Indeed, McConnell indicated his willingness to fulfill that promise on Friday after Ginsburg died, saying in a statement that Trump’s nominee “will receive a vote on the floor of the Senate.”

McConnell explained his position by saying that the Republican Senate majority “pledged to check and balance the last days of a lame-duck president’s second term” in 2016, adding, “We kept our promise. Since the 1880s, no Senate has confirmed an opposite-party president’s Supreme Court nominee in a presidential election year.”

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.”

As Business Insider reported in July, There are long-standing procedures for a scenario like this, laid out in the Judiciary Act of 1869:

  • Once there’s a vacancy, the president can nominate someone to the bench.
  • If the Senate is in recess, the president’s pick can cruise right through to take their oath and join the court — but only temporarily, until a confirmation vote by the end of the next Congress.
    • This route is less likely because Democrats could try to call for a “pro forma” session, meaning Congress isn’t really in recess. Recess appointments still have to be confirmed by the end of the next Congress, so Trump and McConnell would prefer to have the votes for a regular, permanent replacement while there’s still a GOP majority.
  • If the Senate is in session, senators will hold an executive session and hearings on the nominee, which can take two to three months with minimal delays. This process includes background checks, individual meetings between the nominee and senators, and then questioning in hearings before the final confirmation vote.
  • Once the Senate confirms the nominee, the nominee is installed as a Supreme Court justice for life.

Given the outrage from Democrats over McConnell’s decision to block the nomination of Merrick Garland in 2016, the dynamics now are a little more complicated. With Democrats in the minority and Senate rules no longer offering filibuster protection for the minority party for Supreme Court nominations, they have few options, if any, to stop McConnell.

The Senate consists of 53 Republicans, 45 Democrats, and two Independents who caucus with Democrats. In order to stop McConnell, at least four Republicans would have to split from their party. Now, all eyes are on several Republican senators, some of whom have at times stood against Trump and others who are facing tough reelection fights, who could be the deciding factor in whether Trump gets to nominate a third Supreme Court justice.

Sen. Lisa Murkowski told Alaska Public Media’s Casey Groves on Friday, hours before Ginsburg’s death, that she would not vote to confirm a Trump nominee until after November 3. “I would not vote to confirm a Supreme Court nominee. We are 50 some days away from an election,” Murkowski said.

Sen. Susan Collins, of Maine, who is facing an uphill reelection battle and will likely lose her Senate seat in November, told The New York Times’ Jonathan Martin that she would not vote to confirm a Supreme Court justice in October.

“I think that’s too close, I really do,” she told Martin, adding that she would also not vote to seat a justice in the lame-duck period if the 2020 Democratic nominee Joe Biden wins the election.

Sens. Lamar Alexander and Pat Roberts, both of whom are retiring after their term ends, could also be Republican swing votes. Sen. Mitt Romney, of Utah, who was the only Republican to vote to convict Trump following his impeachment, was floated as a potential swing vote as well.

Sen. Lindsey Graham, the chairman of the powerful Senate Judiciary Committee, which takes up the initial nomination before it moves to the full floor of the Senate, did not say Friday whether he would support Trump and McConnell in trying to push a confirmation through.

He said in October 2018, however, that “if an opening comes in the last year of President Trump’s term, and the primary process has started, we’ll wait to the next election.”

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