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Will The Senate Replace Ginsburg Before Election Day?

By Andrew Kragie · September 20, 2020, 8:10 PM EDT

Senators return Monday to a chamber consumed with President Donald Trump's vow to quickly select a replacement for the late U.S. Supreme Court Justice Ruth Bader Ginsburg and cement a conservative majority for years to come.

The liberal icon's death 46 days before Election Day immediately triggered a partisan battle over who gets to name her successor and when. Senate Majority Leader Mitch McConnell, R-Ky., promised Friday that "President Trump's nominee will receive a vote."

Senate Majority Leader Mitch McConnell, R-Kentucky, wants to move ahead with a nominee but must limit GOP defections. (AP Photo/Jacquelyn Martin)

Democrats charged the majority leader with hypocrisy, pointing to his refusal to consider President Barack Obama's nominee following the death of Justice Antonin Scalia in February 2016.

However, the Senate minority can do little to stop an appointment, since the chamber no longer requires a supermajority of senators to confirm judicial nominees. With a GOP vice president available to break a tie, McConnell needs only 50 out of 53 Senate Republicans.

Trump's selection is expected within days.

"I would be surprised if we didn't see a nominee this week," said Mark Champoux, who until July supervised the U.S. Department of Justice's work on Trump's judicial nominations.

As soon as a selection is announced, the chamber is likely to begin considering the nominee — unlike in 2016, when D.C. Circuit Judge Merrick Garland did not receive a hearing after his nomination.

"Senate Republicans are comfortable moving forward with a hearing before the election," said Mike Davis, a former GOP Judiciary Committee staffer. "The issue is going to be whether the vote is before the election."

GOP leaders would seek a final confirmation vote before Nov. 3 if they can get the votes, Davis predicted.

Meanwhile, advocates told Law360 on Sunday that liberals are looking for GOP defectors who want to wait until after the election — at least for a final vote, if not for confirmation hearings.

"No Senate Republican should get a free pass," said Daniel Goldberg, a former Democratic Senate staffer and Obama administration veteran who is now legal director at the Alliance for Justice. "All it takes are four of them to say, 'This is the wrong thing to do, let's allow the president who is elected in November to fill the seat.'"

All eyes have turned to a handful of Republican senators. A few have bucked the party before. A half-dozen face tight races for re-election and might be wary of alienating swing voters.

Sen. Lisa Murkowski of Alaska, the only GOP senator to oppose confirming Justice Brett Kavanaugh in 2018, said Sunday that she "would not support taking up a potential Supreme Court vacancy this close to the election."

Sen. Susan Collins of Maine, who is fighting for a fifth term, has voted against more of Trump's judicial picks than any other Republican. She said Saturday that the appointment "should be made by the president who is elected on November 3rd," but her statement did not make any firm commitments.

The only Republican who voted to remove Trump from office after his impeachment trial, Sen. Mitt Romney of Utah, has yet to take a position. Liberals see him as a swing vote.

However, most vulnerable Republicans on the ballot this year quickly lined up behind McConnell, including Sens. Martha McSally of Arizona and Thom Tillis of North Carolina.

Sen. Cory Gardner, R-Colo., who is also up for reelection, avoided taking a stand at a campaign event Saturday, saying it was still time to mourn the late justice. A similar statement came from the lone Democratic vote in question, Sen. Joe Manchin of West Virginia, who was the only Democrat to vote for Justice Kavanaugh.

Judiciary Committee Chairman Lindsey Graham of South Carolina said he would support moving before the election, despite past statements opposing election-year confirmations.

"I want you to use my words against me," Graham told Democratic senators in March 2016 when he opposed a hearing for Judge Garland.

On Saturday, Graham tweeted that his views changed after Minority Leader "Chuck Schumer and his friends in the liberal media conspired to destroy the life of Brett Kavanaugh and hold that Supreme Court seat open" until after the 2018 midterm elections.

Republicans say the difference between now and 2016 is that the same party controls the Senate and the White House, giving them a popular mandate to proceed.

Still, it remains unclear when the full Senate might vote on confirmation. McConnell is "limited by what he has the votes for," noted Champoux, the former DOJ official.

Although Trump updated his Supreme Court short list earlier this month, Champoux said the White House counsel and the president himself will still interview one or more candidates and make a final choice.

Champoux, now a partner at Davis Graham & Stubbs LLP, pointed to one custom Democrats could try to use to slow the process.

Judiciary Committee members typically negotiate a personalized written questionnaire for high court nominees. The confirmation hearing typically does not come until 28 days after the nominee submits answers to the extensive questionnaire.

Of course, a Senate majority can change rules or customs. And the prospect of legal challenges to the presidential election result gives Republicans an argument for moving at full speed.

Sen. Ted Cruz of Texas, a Republican on the Judiciary Committee, argued for confirming a justice before Election Day to avoid "a constitutional crisis" if an election dispute ends in a tied 4-4 vote at the high court.

The 2020 election seems more likely than most to end up before the Supreme Court, as the pandemic prompts rule changes and slows vote counting. The court, with a ninth justice or not, may once again have to referee a contested election.

--Editing by Kat Laskowski.

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