In the aftermath of Supreme Court Justice Ruth Bader Ginsburg’s death, public displays of grief have been rampant: Countless Americans are mourning the loss of RBG, a cultural icon who impacted the lives of so many women and marginalized people during her 27-year tenure on the Supreme Court. But alongside that grief is another powerful feeling: uncertainty. What is going to happen with the vacant seat on the Court?
Within hours of her death, Senate Majority Leader Mitch McConnell pledged to hold a Senate-wide vote to nominate Ginsburg’s successor. President Donald Trump also tweeted at the GOP on Saturday morning to make his stance clear: “We were put in this position of power and importance to make decisions for the people who so proudly elected us, the most important of which has long been considered to be the selection of United States Supreme Court Justices. We have this obligation, without delay!”
Just 45 days before the election, a new Trump-selected Supreme Court justice strikes great fear among Democrats. With the appointment of another right-wing justice, SCOTUS will have a 6-3 conservative majority for years to come, almost guaranteeing the reversal of everything from Roe v. Wade to the Affordable Care Act.
But, will that happen? Can the Senate vote on a new justice less than two months before a presidential election, even though they refused to do so eight months before the 2016 presidential election? What will the remaining left-leaning justices be able to do to maintain the legacy of Ginsburg’s work? Ahead, we’ve laid out some answers.
How does the Supreme Court nomination process work?
There are a number of steps designated by the U.S. Constitution in order to nominate and appoint a new Supreme Court Justice. This process only happens when an existing justice dies, retires, or is forcibly removed by impeachment. Once there is a vacant seat, the President of the United States has the power to nominate a new candidate. That person will then go through a hearing process before the senate and a thorough FBI investigation.
The Senate’s Judiciary committee — which currently holds 11 Republican members and 9 Democratic members — is usually expected to be the first vote on the president’s pick. From there, they can either confirm, reject, or bring the vote to the full Senate floor. If the vote goes to the full Senate floor, the process is really in the hands of the Senate Majority Leader: He or she can dictate when the vote occurs and how swiftly the want to push through a confirmation. Once a nominee completes the hearing process, investigation, and is confirmed by the Senate, they are officially permitted to serve as a member of the Supreme Court.
Can Trump replace RBG before the election?
Trump has the power to nominate a new justice before the election, but that doesn’t mean the nominee will be confirmed within the last 45 days of his term. That power ultimately lies with the Senate — and Sen. Majority Leader Mitch McConnell — to determine whether or not they will push through a vote and confirmation quickly, or delay until after the election. Historically, only two justices have ever been confirmed within 45 days of the election, but it’s not impossible, since the process can take as little as two months to complete. If Trump and McConnell move quickly, they could put forth a nominee within the coming weeks and confirm that person as soon as November 3, the eve of the election.
When will the Senate vote to replace RBG happen?
This depends entirely on Mitch McConnell. In a statement released on Friday, McConnell said that he intends to move on a Senate vote swiftly. “Since the 1880s, no Senate has confirmed an opposite-party president’s Supreme Court nominee in a presidential election year,” McConnell wrote. “By contrast, 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.”
Although McConnell evades an actual time frame for when he plans to hold the vote, his message is clear: Not only will the Senate seek to vote on a nominee, they will specifically await Trump’s nomination. It should also be noted that McConnell actively blocked former president Barack Obama’s 2016 SCOTUS nominee, Merrick Garland, on the grounds that voters should first elect a new president. This happened eight weeks before the 2016 election, after which Trump was able to nominate his own candidate. Though a number of senators have pledged to hold McConnell to the same standard now, it seems unlikely that he will.
Who will Trump try to replace RBG with?
Trump’s potential list of replacements for Ginsburg is nothing short of terrifying to Democrats, giving the Supreme Court a conservative majority of 6-3. After Trump’s 2016 victory, he nominated Justice Neil Gorsuch and then later nominated Brett Kavanaugh. Though both judges faced nearly full opposition from Democrats and Independents within the Senate, their runner-ups give us a pretty good idea of who Trump may pick next.
In 2017, Trump personally interviewed three people for Gorsuch’s seat: Thomas Hardiman, William H. Pryor Jr., and Amul R. Thapar. For Kavanaugh’s seat, Hardiman was once again thought to be the frontrunner, though two others — Raymond Kethledge and Amy Coney Barrett — were also considered for the spot. As early as Friday night, Barrett was already thought to be the frontrunner for Ginsburg’s seat, since Trump had previously appointed two white men. Barrett, a 48-year-old Evangelical Christian, could serve for decades on the Supreme Court if she is appointed. Sens. Bernie Sanders and Diane Feinstein have, in the past, taken issue with Barrett’s beliefs, particularly her statements regarding religion, and will likely continue to oppose her if she is nominated.
Assuming that Trump will be pressured into nominating a woman for Ginsburg’s seat, a few other names have been floated: Britt Grant, Barbara Lagoa, and Joan Larsen.
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