The U.S. Constitution establishes just one requirement for the job of Supreme Court justice: “good Behaviour.” It specifies that members of the country’s top judicial body are nominated by the president and confirmed by the Senate. The details were left to lawmakers to work out — or fight over, as they have pointedly in recent years as conservatives and liberals have battled for dominance in the court. The current rules give Republican President Donald Trump a shot at replacing liberal Justice Ruth Bader Ginsburg, who died Sept. 18, and strengthening the conservative majority on the court even before he faces voters in elections Nov. 3. Democrats argue precedent should rule that out.
1. How does Senate confirmation work?
Traditionally, three-fifths of the Senate, or 60 of 100 members, had to agree to end the debate over a Supreme Court nominee and take a final vote. With no party holding that many seats during a Supreme Court confirmation in four decades, the rule had assured at least some bipartisan support for candidates. In 2017, Senate Democrats, who then as now were in the minority, blocked a vote to approve Trump’s first nominee, Neil Gorsuch. In response, Senate Majority Leader Mitch McConnell invoked the “nuclear option” and called for a simple majority vote, which passed, allowing Gorsuch to be confirmed and lowering the threshold for future high court picks. The move facilitated the confirmation of Trump’s second appointee, Brett Kavanaugh, and would ease a vote on his choice to succeed Ginsburg.
2. Why do Democrats say precedent should prevent that?
In February 2016, President Barack Obama, a Democrat in his last year as president, had an opportunity to make a third Supreme Court nomination when conservative Justice Antonin Scalia died. But after Obama nominated Merrick Garland the next month to fill the seat, Republican senators refused to hold confirmation hearings on the grounds that it was an election year. Democrats say that Republicans should be bound by their own logic in this election year.
3. Could a justice be confirmed in the time before the election?
The Senate would need to move faster than usual to confirm a nominee that quickly. The process typically involves one-on-one meetings between the nominee and individual senators over many weeks. The Senate Judiciary Committee requires the nominee to complete a lengthy background questionnaire and usually conducts a week of hearings followed by a vote two weeks later in the full Senate. The average time from nomination to Senate vote was 69.6 days for the 15 candidates prior to Kavanaugh, according to a 2018 report from the Congressional Research Service.
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