WASHINGTON — The death of Supreme Court Justice Ruth Bader Ginsburg just six weeks before the election is a political issue that necessarily will shape the court.
Senate Majority Leader Mitch McConnell said in a statement after Ginsburg’s death that he will bring to a confirmation vote whoever President Donald Trump nominates. Democratic nominee Joe Biden disagreed, saying that “voters should pick the president and the president should pick the justice to consider.”
Filling the seat now would mean a 4-4 tie would be avoided during any 2020 election dispute.
Delaying until after a presidential election has not been a long-standing tradition.
Before 1981, the approval process of Justices was usually rapid. From the Truman through Nixon administrations, Justices were typically approved within one month. Justices Ginsburg, O’Connor, and Stevens were all confirmed in less time than is left before the current Election Day.
The average number of days to confirm a justice, according to the Congressional Research Service, is 69.
In 2016, McConnell refused to consider President Barack Obama’s choice for the high court months ahead of the election, eventually preventing a vote.
A confirmation vote in the Senate is not guaranteed, even with a Republican majority.
Typically it takes several months to vet and hold hearings on a Supreme Court nominee, and time is short ahead of the election. Key senators may be reluctant to cast votes so close to the election. With a slim GOP majority, 53 seats in the 100-member chamber, Trump’s choice could afford to lose only a few.
Democrats immediately denounced McConnell’s move as hypocritical, pointing out that he refused to call hearings for Merrick Garland, Obama’s pick, 237 days before the 2016 election. The 2020 election is 46 days away.
Senate Democratic leader Charles Schumer, in a tweet, echoed what McConnell said in 2016 about the Garland nomination: “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.”
While plans were still being formalized, Trump was expected to announce a choice sooner rather than later and may meet with members of his short list in coming days.
Among the senators to watch are Republicans Susan Collins of Maine, Lisa Murkowski of Alaska, Mitt Romney of Utah and others.
Collins is in a tight race for her own reelection, as are several other GOP senators, including Cory Gardner in Colorado. Murkowski and Romney have been critical of Trump and protective of the institution of the Senate.
In a note to his GOP colleagues Friday night, McConnell urged them to “keep their powder dry” and not rush to declare a position on whether a Trump nominee should get a vote this year.
McConnell argued that there would be enough time to fill the vacancy and he restated his argument that the 2016 Senate precedent — in which a GOP-held Senate blocked Obama’s election-year nomination — did not establish a rule that applies to the Ginsburg case.
One difference from 2016 is that, despite the vacancy resulting from Ginsburg’s death, conservatives have a working majority of five justices on a range of issues. When Antonin Scalia died four years ago, the court was divided between four liberals and four conservatives.
—AP stories contributed to this report.
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