SALT LAKE CITY — In the moments and days after the death of iconic Supreme Court Associate Justice Ruth Bader Ginsburg, President Donald Trump and Senate Republican leaders have said they will move to fill the vacant seat on the nation’s highest court before the end of the year.
GOP leaders have said the judicial nomination and confirmation process would proceed regardless of the presidential and congressional elections less than two months away, a different opinion than they had in 2016 when Democratic President Barack Obama nominated a Supreme Court replacement in March of that presidential election year.
The big question dominating the news now is “who will fill the late justice’s seat?” But the answer may be moot if Republicans don’t have the votes to confirm the president’s nominee.
I will be announcing my Supreme Court Nominee on Saturday, at the White House! Exact time TBA.— Donald J. Trump (@realDonaldTrump) September 22, 2020
“She was a legend,” Trump said of Ginsburg during an interview with “Fox & Friends” on Monday.
The president has said he would nominate a woman to fill the vacate seat and that announcement would be made Saturday.
The president went on to tell “Fox & Friends” that his short list was down to five, which included U.S. Circuit Court judges Amy Coney Barrett, Barbara Lagoa and Allison Jones Rushing — who were each nominated for their current judicial positions by Trump and were confirmed and determined to be qualified for those roles by the Republican-led Senate.
The associate justice nominee will then face a Senate Judiciary Committee hearing where members from each party will be able to vet and ask questions. The Senate will then vote on the nominee and a simple majority will decide to confirm or not. If confirmed, the Senate will vote.
But, will Republicans have enough to confirm the third appointment to the highest court in as many years?
The Republican majority
Republicans have a 53-seat majority in the Senate, compared to Democrats with 45 and a pair of independents, who caucus with Democrats. The divide is generally considered 53-47.
According to the U.S. Constitution, the vice president breaks any ties as president of the Senate.
Senate Majority Leader Mitch McConnell of Kentucky said on the Senate floor Monday that an upcoming Supreme Court nominee confirmation vote “will be consistent with both history and precedent.” The difference now from 2016 is that the Senate majority is now working with “a same party president,” he said.
Republicans can only afford to lose three votes — while counting on Vice President Mike Pence to break a tie — to successfully seat a new justice this year.
Leading candidate’s forecasted chance of winning and margin of victory in each Senate race:— FiveThirtyEight (@FiveThirtyEight) September 22, 2020
(*Dots closer to the line represent tighter races, and wider bars mean more uncertainty about the outcome.)https://t.co/gcbXBLYEgl pic.twitter.com/S5DbXu6UI1
Vulnerable senators and a new Senate
If Republicans fear they may lose their majority after the election, they may want to vote for the president’s nominee this year — either before or in a lame-duck session after the election.
A RealClear Politics map of the 2020 Senate races projects seven Senate seats are a “toss-up” right now. They predict 2021’s Senate will have at least 47 Republicans, 46 Democrats and seven seats that could go either way.
According to polling data website FiveThirtyEight, Republican Sens. Thom Tillis of North Carolina and Cory Gardner of Colorado are in danger of losing their seats in November. Tillis and Gardner have both said they would support a qualified nominee, The New York Times reported.
FiveThirtyEight suggests that at least two other GOP Senate seats are still “toss-ups” this November — those of Sens. Susan Collins of Maine and Joni Ernst of Iowa, both of whom sit on the Senate Judiciary Committee.
In a statement Saturday, Collins said she had “no objection to the Senate Judiciary Committee’s beginning the process of reviewing his (Trump’s) nominee’s credentials,” but did “not believe that the Senate should vote on the nominee prior to the election.”
“In fairness to the American people, who will either be reelecting the president or selecting a new one, the decision on a lifetime appointment to the Supreme Court should be made by the resident who is elected on Nov. 3,” Collins said.
Ernst’s Monday press release was a bit more vague. The senator that she would “carry out my duty — as a member of the Senate Judiciary Committee — to evaluate the nominee for our nation’s highest court,” but did not state her vote either way.
The turning of these four seats alone from red to blue would be enough to hold up a Trump nominee or confirm a Joe Biden nominee in 2021.
My statement on the Supreme Court vacancy: pic.twitter.com/jvYyDN5gG4— Sen. Susan Collins (@SenatorCollins) September 19, 2020
From no to maybe
On Tuesday, Alaska Republican Sen. Lisa Murkowski walked back previous statements that she would not support a Supreme Court confirmation vote.
Before Ginsburg died Friday evening, Murkowski said hypothetically that she “would not vote to confirm a Supreme Court nominee. We are 50 some days away from an election,” she told Alaska Public Media’s Casey Grove.
The Alaskan senator confirmed in a statement Saturday that the she would not support a Supreme Court nomination so close to an election.
“Sadly, what was then a hypothetical is now our reality, but my position has not changed. I did not support taking up a nomination eight months before the 2016 election to fill the vacancy created by the passing of Justice Scalia. We are now even closer to the 2020 election — less than two months out — and I believe the same standard must apply,” Murkowski said.
But she walked back her definitiveness on Tuesday, saying “we don’t have a nominee yet. You and I don’t know who that is. And so I can’t confirm whether or not I can confirm a nominee when I don’t know who the nominee is,” Alaska Public Media reported her as saying.
Utah’s senators are in
On Tuesday morning, Utah Republican Sen. Mitt Romney said he would support the nomination process because “historical precedent of election year nominations is that the Senate generally does not confirm an opposing party’s nominee but does confirm a nominee of its own,” the Republican said in a statement.
“If the nominee reaches the Senate floor, I intend to vote based upon their qualifications,” Romney said.
In the moments after Ginsburg death was announced Friday evening, there has been speculation that the Utah senator would break from the GOP and not support the president’s nominee.
Utah Republican Sen. Mike Lee said the decision to or not to confirm Trump’s nominee was easy.
“If we like the nominee, we will confirm her. If we don’t, we won’t. It’s that simple,” Lee said in a statement.
It’s going to be close
If Collins and Murkowski (which doesn’t seem as likely anymore) actually vote against Trump’s Supreme Court nominee — if they dissent — and Democrats present a united voice, the vote will be 51 to 49 in support of the new associate justice.
But as we’ve learned in 2020, a lot can change in a few weeks.