Image: AP Photo/J. Scott Applewhite, File
President Donald Trump has chosen Judge Amy Coney Barrett to replace the late Ruth Bader Ginsburg, sending the nomination to the Senate with hopes of a quick confirmation fewer than 40 days before the presidential election.
Republicans are eyeing a vote in late October, though Senate Majority Leader Mitch McConnell has not yet said for certain whether a final vote will come before or after the November 3 election.
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A confirmation vote so close to a presidential election would be unprecedented, creating significant political risk and uncertainty for both parties. Early voting is underway in some states in the races for the White House and control of Congress.
A look at the confirmation process and what we know and don’t know about what’s to come:
Who is Amy Coney Barrett?
Barrett has been a federal judge in Indiana since 2017, when Trump nominated her to the Chicago-based 7th US Circuit Court of Appeals. She was previously a longtime University of Notre Dame law professor and clerked for the late Justice Antonin Scalia, whom she called her “mentor” as she accepted Trump’s nomination on Saturday. At age 48, she would be the youngest justice on the current court if confirmed.
Barrett's three-year judicial record shows a clear and consistent conservative bent. She is a committed Roman Catholic as well as a firm devotee of Scalia’s favored interpretation of the Constitution known as originalism.
Republicans have widely praised her, while Democrats worry her votes could chip away at the Roe v. Wade decision legalizing abortion and erode health care protections. They argue that her philosophy is too conservative and rigid.
What happens next?
Senate Judiciary Committee Chair Lindsey Graham says his panel will hold four days of confirmation hearings the week of October 12.
Once the committee approves the nomination, it goes to the Senate floor for a final vote. This could all happen by Nov. 3 if the process goes smoothly. Graham said he hopes the committee can move the nomination to the Senate floor by the week of Oct. 26 for a confirmation vote.
Barrett is expected to make her first appearance on Capitol Hill on Tuesday, meeting with McConnell, Graham and other members.
Also read: A Supreme Court fight might be exactly what America needs
Will there be a vote before the election?
Republicans are privately aiming to hold the final vote the last week of October, but acknowledge the tight timeline and say they will need to see how the hearings go. McConnell has been careful not to say when he believes the final confirmation vote will happen, other than “this year.”
Senate Republicans are mindful of their last confirmation fight in 2018, when Christine Blasey Ford’s allegations of a teenage sexual assault almost derailed Brett Kavanaugh’s nomination. The process took longer than expected after Republicans agreed to allow Ford to testify. Kavanaugh, who denied the allegations, was eventually confirmed in a 50-48 vote.
Does the Senate have enough votes to move forward and confirm?
McConnell does appear to have the votes, for now. Republicans control the Senate by a 53-47 margin, meaning he could lose up to three Republican votes and still confirm a justice, if Vice President Mike Pence were to break a 50-50 tie.
At this point, McConnell seems to have lost the support of two Republicans — Maine Sen. Susan Collins and Alaska Sen. Lisa Murkowski, both of whom have said they don’t think the Senate should take up the nomination before the election. Collins has said the next president should fill the court seat, and she will vote “no” on Trump’s nominee on principle.
Can the Democrats stop the vote?
There isn’t much they can do. Republicans are in charge and make the rules, and they appear to have the votes for Trump’s nominee, at least for now. Democrats have vowed to oppose the nomination, and they are likely to use an assortment of delaying tactics. None of those efforts can stop the nomination, however.
But Democrats will also make the case against the nomination to voters as the confirmation battle stretches into the final weeks — and maybe even the final days — of the election season. They say health care protections and abortion rights are on the line, and argue the Republicans’ vow to move forward is “hypocrisy” after McConnell refused to consider President Barack Obama’s nominee, Judge Merrick Garland, several months before the 2016 election.
How does the campaign factor in?
Republicans are defending 25 of the 38 Senate seats that are on the ballot this year, and many of their vulnerable members were eager to end the fall session and return home to campaign. The Senate was originally scheduled to recess in mid-October, when the hearings are now expected to begin.
While some senators up for reelection, like Collins, have opposed an immediate vote, others are using it to bolster their standing with conservatives. Several GOP senators in competitive races this year — including Cory Gardner in Colorado, Martha McSally in Arizona, Kelly Loeffler in Georgia and Thom Tillis in North Carolina — quickly rallied to Trump, calling for swift voting.
How long does it usually take to confirm a Supreme Court justice?
Supreme Court nominations have taken around 70 days to move through the Senate, though the last, of Kavanaugh, took longer, and others have taken less time. The election is fewer than 40 days away.
Could the Senate fill the vacancy after the election?
Yes. Republicans could still vote on Trump’s nominee in what’s known as the lame-duck session that takes place after the November election and before the next Congress takes office on January 3. No matter what happens in this year’s election, Republicans are still expected to be in charge of the Senate during that period.
The Senate would have until January 20, the date of the presidential inauguration, to act on Trump’s nominee. If Trump were reelected and Barrett had not been confirmed by the inauguration, he could renominate her as soon as his second term began.
Didn't McConnell Say in 2016 that the Senate shouldn't hold Supreme Court votes in a presidential election year?
He did. McConnell stunned Washington in the hours after the death of Justice Antonin Scalia in February 2016 when he announced the Senate would not vote on Obama’s potential nominee because the voters should have their say by electing the next president.
McConnell’s strategy paid off, royally, for his party. Obama nominated Garland to fill the seat, but he never received a hearing or a vote. Soon after his inauguration, Trump nominated Neil Gorsuch to fill Scalia’s seat.
So what has changed since 2016?
McConnell says it’s different this time because the Senate and the presidency are held by the same party, which was not the case when a vacancy opened under Obama in 2016. It was a rationale McConnell laid out during the 2016 fight, and other Republican senators have invoked it this year when supporting a vote on Trump’s nominee.
Democrats say this reasoning is laughable and the vacancy should be kept open until after the inauguration.