New Justice Confirmed By Election Day?

By Jerri-Lynn Scofield, who has worked as a securities lawyer and a derivatives trader. She is currently writing a book about textile artisans.

Senator Mitt Romney – our own beloved Mittens – has Tuesday announced he will vote to confirm Donald Trump’s Supreme Court nominee.

Meaning Republicans now have the votes to confirm Trump’s nominee to replace Ruth Bader Ginsburg.

As the Wall Street Journal reports GOP Senators Push to Confirm Trump’s Supreme Court Nominee by Election Day:

More Republicans are pushing to get a successor to Supreme Court Justice Ruth Bader Ginsburg confirmed by the November elections, after senators dashed Democrats’ efforts to stop President Trump from moving ahead with a nominee.

The speedy time frame could further energize voters of both parties and add a new member to the court in time to consider a major health-care case.

Democrats’ hopes of stopping or at least slowing down Mr. Trump’s coming pick dimmed Tuesday morning when Sen. Mitt Romney (R., Utah) said he supported moving forward. Only two GOP senators, Susan Collins of Maine and Lisa Murkowski of Alaska, have said they oppose the nomination effort, which wouldn’t be enough to derail it, given the GOP’s 53-47 Senate advantage.

Mr. Trump thanked Mr. Romney for saying Tuesday that he would be willing to vote for a Supreme Court nominee before the election. “He was very good today,” Mr. Trump said during a campaign rally in Pittsburgh. “Now I’m happy.”

Mr. Trump has said he has a short list of five women judges, and he has begun meeting with possible nominees. Federal appellate judge Amy Coney Barrett of the Seventh Circuit is believed to be a leading contender, as is Judge Barbara Lagoa of the 11th Circuit in Atlanta, according to a Republican close to the process.

“I’ve spoken to many and we are getting close to a decision,” Mr. Trump told reporters at the White House as he left for the campaign rally. He said he would announce his decision at 5 p.m. on Saturday.

Republican Inconsistency: Will The Voters Care?

Republicans have clearly reversed their position now that it suits them.In 2016, they refused to consider the nomination of moderate Merrick Garland, proposed to fill the shoes of Antonia Scalia, as it was an election year and a Democrat controlled the White House while Republicans had a Senate Majority.  That seat was eventually filled by Trump with conservative jurist Neil Gorsuch in 2017

The argument Republicans made is that a Supreme Court Justice should not be confirmed in a President ’s final year. Now, with Republican control of the White House and Senate (but not the House, which plays no role in these confirmation battles), they argue that they can confirm as it is not a divided government situation. Over to the WSJ:

As Republicans largely fell in line, Democrats again criticized the GOP for not leaving the pick open for the next president, which they said was Republicans’ own standard with an Obama court nominee in 2016. Republicans said that having control of the White House and Senate, which Democrats didn’t have four years ago, gives them the prerogative to confirm a court nominee.

Now, why am I reminded of Lucy and the football? We’ll see about how much voters care that Republicans used are espousing contradictory rationales.

Per the WSJ:

Senate Minority Leader Chuck Schumer (D., N.Y.) said the decision to consider a Trump pick ahead of this election means the Republican majority “will have stolen two Supreme Court seats four years apart using completely contradictory rationales.” The GOP in 2016 kept open the seat for which Mr. Obama had nominated Judge Merrick Garland, and Mr. Trump nominated now-Justice Neil Gorsuch the following year.

Trump has done a masterful job at not only confirming Supreme Court picks, but also seating a passel of other federal judges, including district and appellate. And at least with respect to selecting those lower court judges, Schumer has largely gone along. I should also say with grudging respect that for someone who’s not a professional politician, Trump has certainly seized control of the political process. Not to mention runs rings around his predecessor not only on seating Supreme court picks but more generally on judicial confirmations. (See Trump After 500 Days: More Lifetime Federal Judges; and Trump Sets Records for Seating Federal Judges; and Trump Nominates Seventh Round of Federal Judges.)

The new version of the Supremes, with a solid 6-3 Republican majority, will likely opine on a host of electoral law disputes that will arise in 2000 and that will make Bush v. Gore look like child’s play.

What will Democrats do, especially if Biden wins and they capture substantial majorities in House And Senate?

Pass the popcorn.

Even law professor Steven G Calabrese, a self-identified libertarian-conservatives, who was a founder of the Federalist Society, admits the process for picking Supreme Court justices needs to be changed, as he wrote yesterday on the NYT op-ed page, End the Poisonous Process of Picking Supreme Court Justices. But I note his calls for reform don’t go as far as eschewing the pre-lectoral pick of Gisburg’s replacement, but would apply to subsequent picks.

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