A week after Supreme Court Ruth Bader Ginsburg’s death, President Trump chose his third Supreme Court nominee in four years.
In a Rose Garden ceremony at the White House last Saturday, President Trump formally introduced Amy Coney Barrett as his nominee to replace the late Justice Ginsburg.
Judge Amy Coney Barrett has served on the 7th Circuit Court of Appeals since 2017.
Arguably, the fact that President Trump is making his third nomination in four years is historic.
Check out this list of Supreme Court Nominations from 1789 to now: The List of Supreme Court Nominations.
As I mentioned in my blog post last week, the Senate is moving quickly to confirm this nominee before the November election.
Is it possible to nominate and confirm a new Supreme Court Justice this close to the election?
Yes. Justice John Paul Stevens was confirmed within 19 days in 1975. Justice Ruth Bader Ginsburg’s confirmation was completed in 42 days.
Earlier this week, Senate Majority Leader Mitch McConnell (R-KY) and Senate Judiciary Committee Chairman Lindsey Graham announced the schedule of hearings and a Senate floor vote on confirmation would take place before November.
That’s 32 days from now.
Here’s a five (5) step overview of the Supreme Court Confirmation Process and how this week’s announcements fit into the process:
- President Nominates a Candidate
The United States Constitution gives the President the authority to nominate a Supreme Court Justice.
Article II, Section 2, Clause 2 of the Constitution authorizes the President to nominate, with the advise and consent of the United States Senate to appoint Supreme Court Justices. This clause of the Constitution is often referred to as the Appointments Clause.
President Trump nominated Neil Gorsuch to replace the late Justice Antonin Scalia on February 1, 2017. The Senate confirmed the nomination on April 7, 2017.
President Trump nominated Brett Kavanaugh on July 10, 2018. He was confirmed on October 6, 2018.
Now, with the nomination of Amy Coney Barrett, President Trump makes his third nomination to the Supreme Court. You may recall that Judge Barrett was rumored to be on the short list when President Trump nominated Brett Kavanaugh in 2018.
- Sherpa/ Confirmation Team
You could argue this is not a formal step in the process, but the team assigned to escort the nominee is incredibly important. The “Sherpa”, not to mention the supporting team, must be familiar with the Senate and its unique rules.
This week, Judge Barrett was accompanied by Vice President Mike Pence and White House Chief of Staff Mark Meadows. The significance of this nomination is underscored by the Vice President and Chief of Staff personally accompanying the nominee to the Senate.
When Justice Kavanaugh was nominated, Former United States Senator Jon Kyle of
Arizona was the “Sherpa” during the confirmation process.
Want to know more about Sherpas? The Atlantic captures it well in a 2018 article titled “Why Do Supreme Court Nominees Have Sherpas?”
- One-on-One Meetings with Senators
On Monday, Vice President Mike Pence and White House Chief of Staff Mark Meadows accompanied Judge Barrett to her first meetings with Senators on Capitol Hill. The first day of meetings included one-on-one meeting with Senate Majority Leader Mitch McConnell and Senate Judiciary Committee Chairman Lindsey Graham.
It is customary for the nominee to meet with each Member of the Senate Judiciary Committee as well as Senate Leadership for Republicans and Democrats.
Of course, nothing in 2020 is customary nor following the normal course of things.
Several Senate Democrats have announced they will not meet with the nominee. Those Senators include:
- Senate Minority Leader Chuck Schumer (D-NY)
- Senator Mazie Hirono (D-HI), Member of Senate Judiciary Committee
- Senator Elizabeth Warren (D-MA), Member of the Senate Judiciary Committee
- Senator Richard Blumenthal (D-CT), Member of the Senate Judiciary Committee
Other Democrats have signaled their willingness to meet with the nominee including Senate Minority Whip Dick Durbin (D-IL) and Senator Cory Booker (D-NJ) who is a member of the Senate Judiciary Committee.
There are twenty-two (22) Members of the Senate Judiciary Committee (12 Republicans and 10 Democrats. One-on-one meetings with each Senator usually take weeks.
- Senate Judiciary Committee Confirmation Hearing(s)
Earlier this week, Senate Judiciary Committee Chairman Lindsey Graham announced the schedule of nomination hearings for Judge Barrett.
Chairman Graham’s statement on the nomination: Chairman’s Statement
Four days of hearings will start October 12. Once the hearings conclude, Chairman Graham will set the date for the Committee to vote on the nomination. Based on the announced schedule, the Committee is scheduled to vote on the nomination before or on October 22.
I have to admit I totally geek out over Supreme Court Confirmation Hearings.
When I was a kid, I wanted to be the first black female Justice on the Supreme Court.
When I was in law school, I loved participating on the trial team and in appellate court argument tournaments.
Well, whatever the reason, I clear my schedule to watch confirmation hearings. I love every single minute of debate about the law, precedent, famous cases, etc.
- Senate Confirmation Vote
While I have labeled the last step the confirmation vote, inherent in this step is the debate on the Senate floor before the final confirmation vote occurs.
In my opinion, this last step is one of the leading causes of partisanship in the Senate.
Traditionally, three-fifths of the Senate, or 60 of 100 members, agreed to end the debate over a Supreme Court nominee and take a final vote. This 60-vote threshold is called a “cloture vote”. 60 votes were needed to end a filibuster.
(Note: For more information on who cloture votes and filibusters work, this CRS Report explains it well.)
The traditional rules were thrown out the window in 2017.
Senate Democrats, who were in the minority, blocked Neil Gorsuch’s nomination preventing him from getting the required 60 votes.
Senate Majority Leader Mitch McConnell changed Senate rules to allow for a simple majority vote of 51 votes for confirmation. This rule change, often called the “nuclear option”, passed thus lowering the vote threshold for Supreme Court confirmation.
What does this matter? Basically, the party that controls the Senate, in this case Senate Republicans, control the entire Supreme Court confirmation process. The minority, in this case Senate Democrats, cannot stop the nomination as there are currently 53 Republican Senators.
As Judge Barrett’s nomination moves forward, these confirmation hearings are expected to be as explosive if not more so than the now infamous confirmation hearings for Justice Brett Kavanaugh.
We’ll see if Republican Senators can confirm Judge Barrett in the remaining 32 days until Election Day.
