We Only Need Two More

Trump announces he will nominate a Supreme Court justice on Saturday, and Senate Republicans only need a simple majority to push through his nominee just 41 days before the election.

(A protestor holds a sign reading ‘Honor RBG’ outside the residence of US Sen. Lindsey Graham (R-SC) on September 21, 2020 in Washington, DC. Graham announced that he would support a vote on Trump’s Supreme Court pick, after stating in 2016 that there should be no vote on a Supreme Court nominee during a Presidential election year. Photo by Stefani Reynolds, via Getty Images.)

Sen. Cory Gardner of Colorado, who is pivotal in the Republican push to quickly fill Justice Ginsburg’s Supreme Court seat, confirmed last night that he will back a hearing for Trump's nominee. Mitt Romney (R-UT) has also issued a statement that he will support Trump putting forth a nominee. So far, only Senator Lisa Murkowski (R-AK) and Senator Susan Collins (R-ME) have publicly said they are willing to oppose a vote on a Trump Supreme Court nominee this close to the election, as several other Senate Republican swing voters remain silent on what they will do.

Given Collins refusal to stand by her previous commitment to uphold Roe v. Wade, and her decision to cast a pivotal vote in favor of confirming Brett Kavanaugh, her current pledge is not all that re-assuring. In order to stop one of Trump’s nominees to the US Supreme Court from advancing, four Republicans in the Senate need to vote against the nomination or vote against moving forward on a nomination. So far, we have two votes —we only need two more.

Amee Vanderpool @girlsreallyrule

Mitch McConnell today on the floor of the Senate, three days after Justice Ginsburg has 42 days before a Presidential Election: "President Trump's nominee for this vacancy will receive a vote on the floor of the Senate."

In 2013, then Senator Harry Reid (D-NV) invoked what is called the “nuclear option,” by dropping the number of votes needed to overcome a filibuster from 60 to a simple majority for executive appointments and most judicial nominations. Reid argued at the time that this was a necessary option due to the deadlock of pushing through Obama court confirmations during the later years of the Obama Administration. 

This changed a long-standing Senate rule and then-Senate Minority Leader Mitch McConnell (R-KY) and many other Republicans warned that this was a move Democrats would come to regret when the GOP regained power one day. Republican Senator John Thune (R-SD) warned at the time, “What goes around comes around. And someday they’re going to be in the minority.”

Although Reid’s “nuclear option” did not extend to Supreme Court nominees at the time, Mitch McConnell was ultimately able to apply the precedent of a simple majority vote to Supreme Court nominees once Republicans were in the majority. McConnell then used that vote threshold to push through the confirmation of Justice Neil Gorsuch in 2019.

Amee Vanderpool @girlsreallyrule

Here is Mitch McConnell, before the 2018 Midterm elections, bragging about stealing Merrick Garland's seat: "One of my proudest moments was when I looked at Barack Obama in the eye and I said, Mr. President, you will not fill this Supreme Court vacancy."

McConnell and other Republicans were able to hold that Gorsuch vote because they had kept the seat vacant for 422 days, nearly 14 months after the sudden death of sitting Justice Antonin Scalia. Republicans set a new record. Previously, the longest record for a vacancy on a nine member Supreme Court was 389 days, which occurred between Abe Fortas’ resignation on May 14, 1969, and Harry Blackmun’s oath of office on June 9, 1970.

President Obama nominated Merrick Garland to bypass a stalemate and attempt some kind of compromise. Garland was considered to be moderate in his rulings and someone who had supported policies enacted by George W. Bush, as well as Bill Clinton. The nomination of Garland was meant as a compromise to keep Senate Republicans from doing what they did — insisting on furthering their extreme agenda for the country by instilling a record number of conservative judges who would overhaul the justice system and begin to chip away at victories for Civil Rights.

Mitch McConnell and every Senate Republican went on the media offensive in 2016, arguing that the American voters should have a say in the process by electing a president and letting that person nominate the next justice. They claimed that to have a president nominate someone to the court in the same year and just over eight months from the next presidential election would amount to an abuse of power by denying the country the right to have a say.

Republicans refused to hold hearings for Garland using their newly applied extension of a simple majority vote, all the while exclaiming to the public that they could be held to the same standard when the time came later on.

Amee Vanderpool @girlsreallyrule

Here is @LindseyGrahamSC defending his actions with Merrick Garland in 2018: "If an opening comes in the last year of President Trump's term, and the primary process has started, we'll wait to the next election."

The list of Republican Senators who made statements about refusing to hold a hearing for Merrick Garland based on the principle that the nomination was within an election year is long. Nearly every sitting senator used this premise and made a public statement to that effect. Many of them made the additional addendum statement that they could be held to the same standard if the roles were reversed down the road (see Lindsey Graham (R-SC) video above). Now that the time for that has come, Republicans are once again moving the goal post.

We are 41 days from the most important election of our lifetimes and a majority of Americans do not support moving forward on a Trump appointment before the vote. According to a Reuters-Ipsos poll released Sunday, sixty-two percent of Americans say that the vacancy left by Ginsburg, who died only this last Friday, should be filled by whichever candidate wins the upcoming election.

But, since we know the Republican Senate majority will not keep their 2016 vow, and they don’t appear to be persuaded by what the majority of Americans want, we have to get four votes in the Senate to stop any nomination. A simple majority of Senate members is 51 and there are currently 53 Republicans in the Senate. A tie would force a vote from the President of the Senate, who is Vice President Mike Pence, so we need to pull away four Republican votes, giving Democrats at least a 51-49 majority vote against proceeding with the nomination.

Amee Vanderpool @girlsreallyrule

Mitch McConnell arguing in 2016 that the next president should fill the SCOTUS vacancy created by Scalia: "Give the people a voice in filling this vacancy." Now he intends to hold a vote on the Senate floor in direct opposition to his own words.

Trump has spent the last three and a half years filling the federal appellate courts with staunch conservatives backed by fundamentalist organizations such as the Federalist Society. If the seat of Ruth Bader Ginsburg is taken over by a Trump nominee, we will lose any kind of check on Republican power within an entire branch of federal government for at least a generation. The advancements we have made with protecting LGBTQ rights, preserving reproductive freedoms and access to safe healthcare for women, limiting police surveillance, preserving vital aspects of Obamacare, and furthering gender equality will all be gone.

We only need two more Republican votes to stop Trump’s nominee. You can do something now by calling both of your senators, preferably in their local state offices, to demand that they not proceed with a hearing or a vote for a Trump Supreme Court Nominee. It does not matter if you think your senator is so conservative that it is a lost cause, their office will have to record your request and a massive influx of these calls really does make an impact.

You can also donate to Democratic candidates, with a particular focus on helping those in close races for the US Senate. If Democrats are able to hold a majority in the House of Representatives, and we are able to win back the White House, we will still need a majority in the Senate to advance most legislation. You can find suggestions for candidates to support in my article, Key Races for Flipping the Senate. Make two calls and two donations and help to advance the cause of pulling two votes away from a Trump nominee.

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Amee Vanderpool writes the SHERO Newsletter and is an attorney, published author, contributor to newspapers and magazines and analyst for BBC radio. She can be reached at avanderpool@gmail.com or follow her on Twitter @girlsreallyrule.

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