Yes, The Senate Can Confirm a New Nominee Before The Election

I was on CBS News today with my friend Kim Wehle on the replacement of Justice Ruth Bader Ginsburg.  There is a legitimate debate over whether a president should wait for the next election for such a nomination to move forward. However, I disagree with Wehle that a nomination would be unlikely given the roughly 40 days left before the election. The Senate could move this nomination in that time and, judging from some past nominations, even have time to spare without setting a record.

Kim Wehle is clearly correct that the average for nominations is roughly 60 days.  However, the Senate confirmed Justice John Paul Steves in 19 days.  Sandra Day O’Conner was confirmed in 33 days and Ginsburg herself was confirmed in 42 days.  Wehle was expressing doubt that such a short confirmation is possible in this environment and she could be proven correct. However, such speedy confirmations are more common when the Senate is held by the same party as the President.  If Majority Mitch McConnell wants a vote, I do not see how the Democrats can derail it without additional defections from the GOP bench of senators.  The issue is not the hearings but the scheduling the floor vote. However, all things are possible when political stakes are high.

Moreover, most presidents have not waited for the election. This would be the 30th such nomination in an election year.  I have no doubt that if the Democrats controlled the Senate with a Democratic president, they would be moving a nomination forward. Indeed, that was their position in 2016.

There is no question that there is a tsunami of hypocrisy from both parties this week. However, this weekend Chuck Todd exclaimed in disbelief when a Republican senator referred to the “precedent” for such nominations. Todd declared in disbelief “what precedent?!”  The answer is that most presidents have made nominations in election years. Waiting to fill a slot is the exception to that precedent.

Indeed, in 2016,Justice Ginsburg swatted down arguments that a President should wait until after an election.  She stressed that it is the “job” of the Senate to fill such slots and noted “There’s nothing in the Constitution that says the president stops being the president in his last year.” Likewise, Justice Sonia Sotomayor insisted that the Senate should not leave the Court with just eight members, stating “Eight is not a good number. I think we hope there will be nine [justices] as soon as possible.”

Again, there are good-faith reasons to wait for an election and senators are clearly allowed to vote on that basis. However, if a president nominates before an election, I believe that Senate should give that nominee a vote.  That was my position with Merrick Garland and it is my view today.

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