After Supreme Court Justice Ruth Bader Ginsburg’s death on Friday, questions swirled about whether President Donald Trump would nominate or be able to push through a nominee before the election in 45 days.
As The Federalist’s Sean Davis pointed out, however, it is entirely possible to get a Supreme Court nominee in fewer than 45 days. The question remains, however, whether or not a nominee should be pushed through so close to an election.
Three Supreme Court Justices, including Ginsburg herself, took fewer than 45 days to be confirmed by the Senate. As Davis pointed out, Ginsburg’s nomination was sent to the Senate by then-President Bill Clinton on June 22, 1993. Her confirmation hearing began a month later on July 20, and she was confirmed on August 3. “The entire process took 42 days,” Davis tweeted.
In addition to Ginsburg, two other Supreme Court Justices were confirmed in under 45 days, Davis noted.
“The time between the formal Supreme Court nomination of Sandra Day O’Connor and her final Senate confirmation was 33 days. (Aug. 19-Sep. 21, 1981). For John Paul Stevens, the formal process took only 19 days (Nov. 28-Dec. 17, 1975),” Davis tweeted. “There are 46 days until the election.”
Ruth Bader Ginsburg’s formal Supreme Court nomination was sent to the Senate on June 22, 1993. Her confirmation hearing began on July 20, and the Senate voted to confirm her on August 3. The entire process took 42 days. https://t.co/Es6goc6mmo
— Sean Davis (@seanmdav) September 19, 2020
None of these nominations occurred in the days directly before an election, however, leading to questions regarding whether Trump should nominate anyone. Democrats were quick to use Senate Majority Leader Mitch McConnell’s (R-KY) 2016 words against him without providing the context in which the quote was made.
“The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president,” McConnell said after Supreme Court Justice Antonin Scalia died in early 2016.
In 2016, however, the presidency was up for grabs, as President Barack Obama was finishing up his second term. A new president would enter office no matter what happened during the election. Obama was also hampered by the fact that Republicans became the majority in the Senate in 2014, in part by running on the judiciary. Republicans now control the White House and the Senate, meaning there is no conflict between the two institutions, as there was in 2016 when Democrats controlled the White House but Republicans controlled the Senate.
After Ginsburg’s death on Friday, McConnell released a statement explaining this difference.
“In the last midterm election before Justice Scalia’s death in 2016, Americans elected a Republican Senate majority because we pledged to check and balance the last days of a lame-duck president’s second term. We kept our promise. Since the 1880s, no Senate has confirmed an opposite party president’s Supreme Court nominee in a presidential election year,” McConnell said.
“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. Once again, we will keep our promises,” McConnell added. “President Trump’s nominee will receive a vote on the floor of the United States Senate.”
On Saturday morning, Trump appeared to agree with McConnel, tweeting: “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!”