Eric Davis: Trump moves toward court pick
The death of Justice Ruth Bader Ginsburg marks the sixteenth time there has been a vacancy on the Supreme Court in a presidential election year. The vacancy in Ginsburg’s seat comes the second closest to the election of any of these vacancies, which date back to 1804.
The closest to Election Day a Supreme Court vacancy has occurred was in 1864. Chief Justice Roger Taney, the author of the infamous Dred Scott decision, died on Oct. 12 of that year, 27 days before election day. On Dec. 6, about a month after he had been re-elected, President Lincoln nominated former Secretary of the Treasury Salmon P. Chase to be Chief Justice.
The last time the Senate confirmed a nominee for the Supreme Court to fill a vacancy that occurred during a presidential election year was in 1932. Justice Oliver Wendell Holmes Jr. retired on Jan. 12. President Herbert Hoover nominated Holmes’ successor, Benjamin Cardozo, on Feb. 15. He was confirmed by the Senate on Feb. 24, more than eight months before the election in which Hoover was defeated by Franklin D. Roosevelt.
The eight current members of the Supreme Court were nominated between two and three months before the Senate voted to confirm them. For President Trump’s two nominees, Neil Gorsuch and Brett Kavanaugh, the time between nomination and confirmation was 66 days and 89 days, respectively.
There is no historical precedent for a president nominating someone to serve on the Supreme Court, having that person vetted by the Senate (a process that includes a committee investigation, private meetings with senators, and public hearings), and then confirmed in a vote on the Senate floor within a few days or weeks of a presidential election.
However, just because a nominee has never been confirmed in such a time frame does not mean that President Trump and Senate Majority Leader Mitch McConnell will not try to force a nominee through before Nov. 3. Trump believes this timetable would increase turnout among the Republican base, helping his re-election.
Two federal appeals court judges appear to be at the top of Trump’s list of possible nominees. Judge Amy Comey Barrett of the Seventh Circuit is known for her conservative views. She would appeal to social conservatives, a key Trump constituency, on the abortion issue.
Judge Barbara Lagoa of the Eleventh Circuit is from Florida, a must-win state for Trump. She is a Cuban-American, a demographic Trump needs to turn out in large numbers if he is to win Florida, and was confirmed for the appeals court by a Senate vote of 80-15, a much larger majority than many of Trump’s judicial nominees.
Trump would like to see a new justice confirmed before Nov. 3 in order to have a Supreme Court with six out of the nine justices nominated by Republican presidents before any post-election voting cases make their way to the Court. With controversies over mail ballot procedures, registration and postmark deadlines, and other matters arising in states all over the nation, one or more of these cases could end up before the Supreme Court.
Not all Republican Senators are enthusiastic about an early-vote strategy. Susan Collins of Maine, who is in a difficult re-election race and who represents a state that Biden is likely to win, has said the vote should not take place until the next president has been elected. Sen. Lisa Murkowski of Alaska, a pro-choice centrist, has also balked at a pre-election confirmation vote.
With Mike Pence as presiding officer, Trump and McConnell could afford to lose up to three Republicans and still have enough votes to confirm a new justice. With Utah’s Mitt Romney, who did show some independence from the White House on impeachment, announcing that he is prepared to vote for Trump’s nominee, McConnell has the votes he needs. The only question is whether the confirmation vote comes before or after Nov. 3.
Eric L. Davis is professor emeritus of political science at Middlebury College.
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