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Can Donald Trump Appoint A New Supreme Court Justice Before The Election? Experts Weigh In

Supreme Court Justice Ruth Bader Ginsburg's death on Friday, Sept. 18 quickly ignited a political battle, following President Donald Trump's announcement that he plans to appoint a replacement before Election Day. With less than 45 days to go until Nov. 3, you might be wondering: Can Trump appoint a new Supreme Court justice before the election, and if so, what are some hurdles that might get in the way? Here's what experts have to say.

During an appearance on Fox & Friends on Monday, Sept. 21, the president revealed that he would be announcing his pick for the Supreme Court spot at the end of the week following services for the late justice, who passed away at age 87 due to complications surrounding metastatic pancreatic cancer. Trump said that he believed that the final Senate vote for his potential nominee should take place before the election, adding that "losing an election has consequences."

"That means the other side gets to pick Supreme Court justices, judges. It’s a big deal," he said. "It sets the tone. I’m very lucky because rarely does a president have this opportunity." President Trump previously nominated Justices Brett Kavanaugh and Neil Gorsuch, who were both confirmed during his first term. With the opportunity to nominate a third justice, Trump has the chance to solidify a conservative majority on the court that would last for a generation.

Jessica Levinson, clinical professor of law at Loyola Law School, tells Elite Daily that legally, there are no barriers to President Trump announcing a nomination during an election year. "Just as President Obama had the power to nominate Merrick Garland in an election year, President Trump has the power to nominate someone during an election year," she says.

According to Levinson, the only real barrier to the appointment of Trump's nominee is political. "The Senate can move forward if they have enough votes," she says. "Since 2017, the Supreme Court justices only need 51 votes (a simple majority) to be confirmed." In 2018, Brett Kavanaugh was confirmed to the Supreme Court with just a 50-48 vote. At the moment, there are 53 Republicans in the Senate. However, there could also be a delay if Republican senators refuse to vote on a pick until after the election, which Sens. Lisa Murkowski of Alaska and Susan Collins of Maine have said they plan to do. However, two other GOP senators would have to join them to give Democrats the majority they would need to strike down a nomination, and Vice President Mike Pence has the power to break a tie.

The timing of Ginsburg’s death, and the need for a replacement on the Supreme Court, is causing significant political upheaval. With less than two months before the 2020 presidential election, Republicans and Democrats are in disagreement on whether the president should be able to nominate a new justice, or whether it should be left for the next president — as Republicans argued during the last presidential election cycle. In 2016, Republicans in Congress refused to hold a vote on President Barack Obama’s nomination of Merrick Garland to the Supreme Court following the death of Justice Antonin Scalia, saying that the Senate should not fill a Supreme Court seat, which is a lifetime appointment, in an election year. Senate Majority Leader Mitch McConnell said at the time, "The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president."

Now, four years later, McConnell said in a Sept. 18 statement that "President Trump’s nominee will receive a vote on the floor of the United States Senate."

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Mark Peterson, Ph.D, a professor of public policy, political science, and law at UCLA’s Meyer and Renee Luskin School of Public Affairs, tells Elite Daily that there is technically no “election year rule,” saying the idea came about in 1992 when then-Senator Joe Biden argued, in the abstract, that it would be best not to consider someone during an election year. Republicans jumped on that rhetoric in 2016.

“Neither the Constitution nor existing statutes say anything about the timing or nature of that process,” Peterson says. “In the extreme, President Trump could forward a nomination, the Senate Judiciary Committee could vote immediately to advance that nomination to the Senate floor, and the majority leader could immediately schedule a vote.”

Peterson says that what’s most concerning would be straying from norms that have developed over the years, such as due diligence in background checks of possible candidates, meet and greets between the nominee and members of the Senate, and the Judiciary Committee holding hearings with due time for the members and staff to collect and organize background information to formulate questions (including reading the nominee's academic articles, speeches, written opinions, and other presentations of judicial and policy positions), and a floor debate, which would then be followed by a vote. This process normally takes 70 days on average, not the 40-some days that are left before the election.

“In short, if at least 50 of the current Senate Republicans favor having a vote before the election, or during a lame-duck session after the election, the vote can and will happen, with Vice President Pence breaking a tie, if necessary,” Peterson says. “There is nothing the Democrats or anyone in opposition can do to stop that from happening.”

Democrats have blasted Republicans for the inconsistency, particularly since Ginsburg’s death comes much closer to Election Day than did that of Scalia, who died in February of 2016. In a speech at the National Constitution Center in Philadelphia on Sunday, Sept. 20, Democratic presidential candidate Joe Biden called it a “constitutional abuse” that the Senate was planning to hold a vote while Americans have already begun casting their ballots for the Nov. 3 election. "To jam this nomination through the Senate is just an exercise in raw political power," Biden said. "I don't believe the people of this nation will stand for it."

Former President Obama also weighed in, saying the Senate and the Trump administration should consider "consistency" when making their decision. "Four and a half years ago, when Republicans refused to hold a hearing or an up-or-down vote on Merrick Garland, they invented the principle that the Senate shouldn’t fill an open seat on the Supreme Court before a new president was sworn in," he wrote in a statement. "A basic principle of the law — and of everyday fairness — is that we apply rules with consistency, and not based on what’s convenient or advantageous in the moment."

With just days to go until he announces his final nominee, President Trump revealed on Monday, Sept. 21 that he'd cut his short list to five people and that he'd be choosing a woman for Ginsburg's replacement. Judges Amy Coney Barrett, Barbara Lagoa, and Allison Jones Rushing are some of the names reportedly being considered for the position.