In the wake of Supreme Court Justice Ruth Bader Ginsburg’s death on Friday, Senate Majority Leader Mitch McConnell made clear that whoever President Donald Trump picks to replace her will get a Senate floor vote.
“President Trump’s nominee will receive a vote on the floor of the United States Senate,” he said in a statement, though he did not specify when this potential vote is expected to take place.
Given how close the election is, Republicans could attempt to confirm a new justice before November or conduct the vote during the lame-duck session that Congress will hold later in the year. Even if Trump loses the election in November, or Republicans lose their Senate majority, former Vice President Joe Biden and a new Congress wouldn’t take over until January, leaving the GOP a window to act on the vacancy.
McConnell emphasized that he viewed this vote as central to Republicans following through on their promise to remake the federal judiciary. “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,” he said.
McConnell’s position in 2020 is opposite from his stance when President Barack Obama nominated Judge Merrick Garland to the Supreme Court in March of 2016. During Garland’s confirmation process, McConnell took the position that a Supreme Court justice should not be confirmed during a presidential election year. The election is just 46 days away.
For his part, Senate Minority Leader Chuck Schumer has taken the position that McConnell did after Justice Antonin Scalia’s death.
“The American people should have a voice in the selection of their next Supreme Court Justice,” Schumer said in a statement, using the same words McConnell used in 2016. “Therefore, this vacancy should not be filled until we have a new president.”
It’s unclear whether McConnell will have the votes to move ahead with the confirmation of a new justice. Since Senate Republicans pushed a rules change in 2017, Supreme Court justices can now be seated with a simple majority of Senate votes, which would require 51 lawmakers to support the nominee. If there were a 50-50 tie, Vice President Mike Pence could also cast a vote to break it.
Currently, Republicans have a 53-47 majority in the Senate, meaning the decision, like Justice Brett Kavanaugh’s confirmation, will likely rest heavily on a group of moderate Republicans, including Sens. Lisa Murkowski (AK), Susan Collins (ME), and Mitt Romney (UT).
Collins previously indicated she would not support seating a new justice in October, but Saturday, she released a statement walking a finer line. She voiced support for starting the process to consider a Trump nominee, but said no floor vote should be held until after a new Congress is in session.
“I would have no objection to the Senate Judiciary Committee’s beginning the process of reviewing [Trump’s] nominee’s credentials,” Collins wrote in the statement. “In fairness to the American people ... the decision on a lifetime appointment to the Supreme Court should be made by the President who is elected on November 3rd.”
Murkowski has said she was not comfortable confirming a nominee close to the election. That statement was made before Ginsburg’s death was announced on Friday, however, and neither she nor Romney has expressed a position on the timing of the vote — or the vote itself — since.