President Trump has made it clear he would like the Senate to confirm his Supreme Court nominee to replace Justice Ruth Bader Ginsburg before Election Day, and Senate Republicans have, with only two exceptions, lined up behind him. Just days after Ginsburg’s death, it’s no longer a question of whether or not the Senate GOP will have the gall and the votes to confirm a new justice before the election, but whether they have enough time.
So far, Senate Majority Leader Mitch McConnell hasn’t actually committed to confirming Trump’s nominee before Election Day, he has just said that he could — while committing to fill the vacancy by the end of the year.
Below is a look at how the timeline of Trump and McConnell’s effort to replace RBG on the Supreme Court seems likely to play out, what that process will entail, and whether or not anything or anyone can slow them down.
The Nomination and Senate Confirmation Process
There are three steps in the process of nominating and confirming a new justice to the Supreme Court that President Trump and the Senate GOP will need to complete.
Step 1: President Trump makes his nomination.
Trump says he will announce his nominee on Saturday, and has indicated that he still wants the Senate to vote to confirm his pick before the election. Once he makes his announcement, he’ll need to send a letter to the Senate officially notifying them about his nominee.
Selecting a qualified nominee and vetting them usually takes a presidential administration a considerable amount of time, but it’s not clear how big of a concern that is to Trump in this case, particularly if he nominates federal appeals judge Amy Coney Barrett, as many expect him to. Barrett was already vetted as a finalist to replace Justice Anthony Kennedy in 2018, but Trump selected Brett Kavanaugh instead.
Step 2: The nomination goes to the Senate Judiciary Committee.
Senate rules dictate that after President Trump officially notifies the upper chamber of his nominee, the nomination is referred to the Senate Judiciary Committee, which is currently chaired by Senator Lindsey Graham, a staunch Trump ally. Once the committee is referred a Supreme Court nomination, it then normally:
- Conducts a prehearing investigation vetting the nominee, which usually includes having them answer a long questionnaire, reviewing the nominee’s career and legal opinions, asking the FBI to conduct a background investigation, seeking a recommendation from the American Bar Association, and conducting in-person interviews with the nominee.
- Holds a public hearing in which the nominee is questioned by members of the committee.
- Votes on whether or not to recommend the nominee for a vote in the full Senate.
The Judicial Committee process, particularly the investigation phase, typically takes well over a month to complete. How long it takes in this case will likely depend on how much Lindsey Graham values the appearance of propriety — which probably isn’t very much if he is already rubber-stamping Trump’s choice before the president has even made it:
Step 3: The full Senate votes on the nomination.
After the Judiciary Committee votes to recommend the nominee, the nomination moves to a floor vote, which Republicans will only need 50 votes to win — and which, in this case, they appear to already have.
With at least a simple majority of GOP senators lined up and the filibuster now long gone for Supreme Court nominations, there aren’t any significant procedural moves that Democrats can use to prevent or significantly delay the floor vote.
How much time will the Senate have to confirm Trump’s nominee?
Looking at the one preelection and three lame-duck session time frames, when Trump announces his nominee on Saturday, September 26, that will leave:
- 38 days for the Senate to confirm the nominee before Election Day on November 3 — and if the confirmation process continues into the lame-duck session:
- 65 days before the GOP’s majority in the Senate may be reduced by one seat, if (1) Democrat Mark Kelly defeats Republican incumbent Martha McSally in the November 3 special election in Arizona, (2) Kelly is seated in the Senate on the earliest possible date (November 30), and (3) three GOP senators are willing to defect to block Trump’s nominee.
- 99 days before the 116th session of Congress concludes on January 3, should Democrats retake the Senate. (And 83 days before the Senate is scheduled to break for the holidays on December 18.)
- 116 days before Trump would leave office on January 20, if he loses the election but Republicans maintain their Senate majority.
How long does the Senate confirmation process usually take?
While there is no mandated minimum time frame, since 1975, confirming a Supreme Court nominee in the Senate has taken an average of 70 days. Looking at the last nine successful confirmation processes, only two justices were confirmed in less time than that: Ruth Bader Ginsburg (50 days in 1993) and Neil Gorsuch (66 days in 2017). Brett Kavanaugh’s confirmation in 2018, which included extra hearings to consider allegations of sexual misconduct made against him, took 89 days. Clarence Thomas’s confirmation in 1991 took 106 days, the longest time frame among the current justices.
Historical precedent for the confirmation timeline may mean as little as political precedent has for Trump’s new nominee, but either way it seems very likely that if time runs out before November 3, rolling the confirmation process over into the lame-duck session, regardless of the outcome of the election, will afford Mitch McConnell plenty of time to get it done.
Can Democrats (or anything) slow the process down?
There are some limited ways Senate Democrats can drag out the confirmation process, but it’s not clear how much of a difference it would ultimately make beyond the symbolism. For instance, The New Yorker’s Jeffrey Toobin has pointed out that Democrats on the Senate Judiciary Committee have the right to delay the committee’s final vote on the nominee by one week. But as Vox’s Andrew Prokop has explained, Graham might just disregard the rules if Democrats try to use them against him:
There are some remaining procedural moves that Democrats can make to delay things slightly, but they should be understood more as protest tactics than anything that could actually “stop” a confirmation that the majority wants. For example, Democrats could boycott Senate Judiciary Committee chair Lindsey Graham’s (R-SC) hearings for the eventual nominee. That would deny the committee a quorum, which, under a strict interpretation of the rules, would mean they can’t act. However, Democrats have tried similar tactics with Graham’s committee in the past, and he has simply ignored the rules when they are inconvenient.
Similarly, there are a few tricks Democrats could try to put off the full floor vote, like insisting on 30 hours of debate beforehand, but nothing that could prevent the vote from happening.
As Prokop additionally notes, it’s always possible that some sudden scandal could derail Trump’s nominee, but a rushed process will also limit the window of time for anything to go wrong. Even the pandemic could streamline the timeline, with virtual interviews taking less time than in-person ones.
There are some other potential obstacles to meeting Trump’s Election Day target, like the Senate being scheduled to go on recess in mid-October, or vulnerable Republicans who are up for reelection this year wanting to get back to their home states to campaign, but those aren’t insurmountable hurdles.
The bottom line remains that if McConnell has the votes — which he seems almost certain to have at the moment — it is a matter of when, not if, Senate Republicans confirm whoever Trump nominates to replace Ruth Bader Ginsburg on the Court.
This post has been updated to reflect Trump confirming that he will announce his nominee on Saturday.
