All Your Wildest SCOTUS-Blocking Fantasies, Crushed
The Senate has the votes. It’s going to be hard to stop it.
The death of Ruth Bader Ginsburg has plunged the 2020 presidential campaign into turmoil. An election already defined by a historic pandemic and a generational conversation about race in the United States now has the added complication of the battle over the Supreme Court seat vacated by Ginsburg’s death.
With six weeks before the election, Senate Republicans have pledged to fill the vacancy as quickly as possible. This stands in stark contrast to Senate Majority Leader Mitch McConnell’s blockade of Merrick Garland’s nomination to the seat opened up by Antonin Scalia’s death in February 2016. Then, Republicans insisted that no Supreme Court nominee could be voted on until after the November election.
While Republicans have insisted the two scenarios are different, Democrats have reacted in outrage at what they perceive as GOP hypocrisy about the court and have insisted they will do everything possible to block a confirmation before November 3.
So can Democrats block a replacement to Ginsburg before the election?
Almost certainly not. When it comes to judicial nominations, the Senate is fundamentally a majoritarian institution and there is a majority to confirm a replacement to Ginsburg. With Harry Reid invoking the so-called “nuclear option” for lower court nominations in 2013 and followed by Mitch McConnell doing so for Supreme Court nominations in 2017, all that is needed to confirm a judge is a simple majority. Right now Democrats only control 47 seats in the Senate. Although two Republicans, Susan Collins of Maine and Lisa Murkowski of Alaska, have pledged to block a pre-election vote on a Supreme Court nominee, Democrats still need two more Republicans to object. (Vice President Mike Pence would cast a tie-breaking vote if there was a 50–50 tie.) And, while the Senate has its own formal procedures for Supreme Court nominations, the timeline still allows for every step in nomination to be followed and a final vote around Halloween, days before Election Day. In modern times, the fastest that any justice has been confirmed without an unopposed nomination was Ginsburg. She was confirmed by a…
