The Democrats' only hope of blocking Trump from replacing Ruth Bader Ginsburg just went up in smoke

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The Democrats' only hope of blocking Trump from replacing Ruth Bader Ginsburg just went up in smoke
Business Insider
The Democrats' only hope of blocking Trump from replacing Ruth Bader Ginsburg just went up in smoke
Senate Majority Leader Mitch McConnell and President Donald Trump huddle after the State of the Union Address on February 4, 2020 in Washington, DC.Mario Tama/Getty Images
  • Democrats are officially out of options to keep President Donald Trump from pushing through a nominee to fill the late Justice Ruth Bader Ginsburg's Supreme Court seat.
  • Utah Sen. Mitt Romney came out in favor of a floor vote on Ginsburg's replace on Tuesday, dealing a fatal blow to Democrats' hopes of gaining enough Republican defections to keep the seat open.
  • Democrats needed four Republicans to break ranks, hoping at least some would follow the precedent Senate Majority Leader Mitch McConnell set in 2016, when he thwarted President Barack Obama from filling the late Justice Antonin Scalia's seat until after the election.
  • Ultimately, Democrats secured only two Republican defections — Sens. Lisa Murkowski of Alaska and Susan Collins of Maine — leaving them with no recourse.
  • There are stalling measures they can take, but between a lame-duck confirmation and McConnell's ability to call for a vote to change Senate rules, Democrats are now in checkmate.

Any chance the Democrats had of keeping Ruth Bader Ginsburg's Supreme Court seat open until after the election has vanished.

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Democrats needed at least four Republicans to defect if they had any chance of preventing Trump and Senate Majority Leader Mitch McConnell from filling the seat, or potentially three if they could stall until Election Day and get Democrat Mark Kelly sworn in if he wins a special election for an Arizona Senate seat on November 3.

Utah Sen. Mitt Romney seemed like a potential ally, given his impeachment vote in February. But he announced Tuesday that he would support a floor vote on Trump's nominee, whom the president plans to announce on Saturday. Romney's announcement left the Democrats with only two Republican defectors: Sens. Lisa Murkowski of Alaska and Susan Collins of Maine.

Over the weekend, there was some speculation that Republican Sens. Cory Gardner, Lamar Alexander, and Pat Roberts could be swing votes. But the three lawmakers have since signaled their support for filling Ginsburg's seat before the election.

Senate Judiciary Committee Chairman Lindsey Graham, meanwhile, ignited a firestorm when he announced over the weekend that he would support Trump in "any effort" to move forward with filling Ginsburg's seat.

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His comments were a brazen reversal of his position in 2016, during which he pledged he would not vote on a Supreme Court nominee in an election year.

If "a vacancy occurs in the last year of the first term" of a Republican president, "you can say Lindsey Graham said let's let the next president, whoever it might be, make that nomination," Graham said in 2016. "I want you to use my words against me."

Now that McConnell has the votes he needs, the minority party could try to stall, but McConnell always has the option of thwarting any such efforts by calling for a rule change on the Senate floor. As long as he has the GOP votes, McConnell could simply erase any loopholes the Democrats may use to slow down the process.

As Business Insider reported in July, there are long-standing procedures for a scenario like this, laid out in the Judiciary Act of 1869:

  • Once there's a vacancy, the president can nominate someone to the bench.
  • If the Senate is in recess, the president's pick can cruise right through to take their oath and join the court — but only temporarily, until a confirmation vote by the end of the next Congress.
    • This route is less likely because Democrats could try to call for a "pro forma" session, meaning Congress isn't really in recess. Recess appointments still have to be confirmed by the end of the next Congress, so Trump and McConnell would prefer to have the votes for a regular, permanent replacement while there's still a GOP majority.
  • If the Senate is in session, senators will hold an executive session and hearings on the nominee, which can take two to three months with minimal delays. This process includes background checks, individual meetings between the nominee and senators, and then questioning in hearings before the final confirmation vote.
  • Once the Senate confirms the nominee, the nominee is installed as a Supreme Court justice for life.
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