President Donald Trump is expected to nominate Judge Amy Coney Barrett to the Supreme Court on Saturday, sources familiar with the matter told NBC News. After that begins the battle over her confirmation.
Trump has repeatedly pressed for a vote ahead of Election Day, which this year is Nov. 3. Trump has said that he wants a full court in case the election is contested, which lawyers warn looks increasingly likely, given the onslaught of Covid-19 related voting litigation.
Looking at recent history, a confirmation ahead of Election Day looks possible, if speedy. There are just 39 days until the last voters head to the polls.
Going back to the administration of President Gerald Ford, only two justices have been successfully confirmed in such a short period, Justices John Paul Stevens and Sandra Day O’Connor. O’Connor, the more recent of the two, was confirmed nearly 30 years ago, and both of those justices were confirmed unanimously. That situation is unlikely this year.
Senate Majority Leader Mitch McConnell, R-Ky., has said the Senate has plenty of time. During a speech from the Senate floor on Monday, McConnell said that Stevens’ whole confirmation process, which took just 19 days, “could have been played out twice between now and Nov. 3, with time to spare.”
That is true. But no justice currently on the court was confirmed so quickly. As the Supreme Court has increasingly been seen as a political prize, fights over its members have grown more contentious — and longer. Justice Brett Kavanaugh, who was dogged by allegations of sexual misconduct that he denied, took 88 days to confirm, despite Republican control of the Senate.
Still, McConnell appears to have cleared his first hurdle. After Ginsburg’s death on Friday at 87, it was reported that the liberal justice issued a statement in her final days expressing her wish not to be replaced until after the election is held. In the following days, two GOP senators, Susan Collins of Maine and Lisa Murkowski of Alaska, both came out against a pre-election vote.
But other moderate Republicans declined to follow them. After Sen. Mitt Romney of Utah said that he supported holding a vote, it appeared that McConnell had the votes he needed. Republicans hold 53 of the 100 seats in the Senate.
If McConnell does not manage to pull off a vote before Election Day, a vote by the end of the year appears to be well within reach. Going back to 1975, it has taken about 67 days on average for an associate justice to be confirmed after being nominated. Sixty-seven days from Saturday is Dec. 2.
A day after President Donald Trump refused to promise a peaceful transfer of power if he loses the 2020 election, lawmakers pushed back on his statements.
“I have confidence that he won’t get away with saying, for example, I won with … the vote on the ground, the vote in the mail doesn’t count, and the rest of that,” House Speaker Nancy Pelosi, D-Calif., told reporters on Thursday.
At a press conference Wednesday, Trump said, “we’ll have to see what happens,” when it comes to whether he would peacefully hand over his office. “The president will accept the results of a free and fair election,” White House press secretary Kayleigh McEnany told reporters Thursday.
“I’ve been complaining very strongly about the ballots. And the ballots are a disaster,” Trump said, seemingly referring to mail-in ballots. Trump has repeatedly cast doubt on the legitimacy of mail-in ballots as a voting mechanism, claiming, without evidence, that they are susceptible to massive fraud. Many more voters are expected to vote by mail this election as a health precaution due to the ongoing coronavirus pandemic.
At a congressional hearing on Thursday, Federal Bureau of Investigation Director Christopher Wray said the agency has not historically seen “any kind of coordinated national voter fraud effort in a major election, whether it’s by mail or otherwise.”
Democrats have become increasingly concerned about how the unusual circumstances created by the pandemic will influence the outcome of the election and transition of power if former Vice President Joe Biden, the Democratic nominee, does win the electoral vote. With more voters expected to vote by mail in the election, many expect the race will be impossible to call on Election Day unless one candidate wins in a landslide.
That could leave room for candidates to cast doubt on the outcome of the election. Social media companies are already preparing for the possibility of one candidate prematurely claiming a victory. And with one Supreme Court seat open following the death of Justice Ruth Bader Ginsberg last week, a more conservative court may be left with the deciding vote on the election outcome if it ends with a legal challenge.
At a Senate Judiciary Committee meeting Thursday, Chairman Lindsey Graham, R-S.C., said he would accept whatever decision the Supreme Court decided if the election results reached that point. Graham’s committee is tasked with reviewing judicial appointees and said he would support Trump’s efforts to fill Ginsburg’s vacant seat, contradicting his statements in 2016 saying the next president should make the appointment if a vacancy occurred close to the election.
“Bottom line is whatever the court decides I will accept,” Graham said Thursday. “Al Gore’s greatest legacy in many ways, to me, is what he did after he lost. He accepted a result of the Supreme Court that was 5-4, like 500 votes in the state of Florida. How many places in the world would power peacefully transfer under those circumstances? How many places in the world where you actually have a peaceful transfer of power to begin with?”
Graham added, “there is no alternative to a peaceful transfer of power.”
“The winner of the November 3rd election will be inaugurated on January 20th,” Senate Majority Leader Mitch McConnell, R-Ky., said in a tweet Thursday. “There will be an orderly transition just as there has been every four years since 1792.”
Some Twitter users pointed out that McConnell’s language left room for interpretation, given many votes are expected to not yet be counted as of Nov. 3.
Several other Republicans reaffirmed a peaceful transition in statements on Twitter, though they did not call out Trump by name or directly reference his comments.
“Fundamental to democracy is the peaceful transition of power; without that, there is Belarus,” tweeted Sen. Mitt Romney, R-Utah, who has been critical of Trump in the past. “Any suggestion that a president might not respect this Constitutional guarantee is both unthinkable and unacceptable.”
“As we have done for over two centuries we will have a legitimate & fair election,” tweeted Sen. Marco Rubio, R-Fla. “It may take longer than usual to know the outcome, but it will be a valid one[.] And at noon on Jan 20,2021(sic) we will peacefully swear in the President.”
House Majority Leader Kevin McCarthy, R-Calif., said Thursday, “There will be a very peaceful transition,” according to The New York Times, adding that the same question should be asked of Democrats like “Hillary Clinton, who said never concede the race.”
Clinton’s comments about not conceding the race referred to the potentially incomplete results that could come out on Election Day due to the expected surge in mail-in voting. In an interview released in August, she said that Biden “should not concede under any circumstances” on Election Day given that it could take more time to find out the winner.
Former Wisconsin Gov. Scott Walker, a Republican, wrote on Twitter that, “Smart candidates never concede anything before an election. They focus on what it takes to win.”
Democratic presidential nominee Joe Biden holds a durable lead over President Donald Trump in national polling averages ahead of their first debate, where the contenders are set to discuss the Supreme Court, the economy and the coronavirus pandemic.
Some recent polls:
While the polling gap might favor Biden, it’s the Electoral College, not the popular vote, that will decide the race. Trump won in 2016 despite Democrat Hillary Clinton’s more than 2.8 million edge in the popular vote.
But with just 40 days until Election Day, Biden also appears to be holding onto his leads in a series of crucial battleground states, albeit narrowly in some.
Averages of polls from Florida, Pennsylvania, Michigan, Wisconsin, North Carolina and Arizona give Biden a 3.8-point spread over Trump, according to RCP’s swing-state tracker.
The closest races in that tracker are North Carolina and Florida, both of which Trump won against Clinton. Biden holds just a 0.5-point average lead in North Carolina and a 1.3-point lead in Florida.
The Sunshine State in particular, with its 29 electoral votes, has become a major focus for both campaigns.
Trump, who recently became a permanent resident of Florida, and Biden paid visits earlier this month, and both have made overtures to the high proportion of Latino voters there.
Trump’s surprise move last week to announce $13 billion in disaster aid for Puerto Rico was viewed as an apparent play for Florida voters. Florida Republicans, meanwhile, are reportedly pushing Trump to select Barbara Lagoa as his next Supreme Court nominee, believing that the Cuban-American federal judge could boost the president’s chances in the state.
Some individual state polls do show Trump gaining since August. A Monmouth University poll of registered voters in Iowa, for instance, found Trump rising to a 50%-44% lead over Biden, though a separate model of likely voters from the same pollster put the race at a narrower 49%-46% spread for Trump. The poll of 402 registered voters in Iowa was conducted by phone between Friday and Tuesday. It has a margin of error of plus or minus 4.9 percentage points.
One political analyst who isn’t changing the prediction he made in early August is historian Allan Lichtman, who has correctly called every presidential race since 1984.
“I absolutely stand by my prediction” that Trump will lose in 2020, Lichtman said in a phone interview with CNBC last week.
Lichtman’s method eschews the polls in favor of an analysis of 13 different categories, such as the state of the economy and the president’s policy record, dubbed the “Keys to the White House.”
“The keys, they’re like a rock. They do not easily change, because they have the fundamentals, not the day-to-day of the campaign,” Lichtman said. “Trump isn’t going to suddenly morph into a different person.”
Despite Lichtman’s prediction and the steady gap between Trump and Biden in the polling averages, there are more than enough reasons not to jump to conclusions about what the outcome will be — or when it will even be known.
Lingering fears about the spread of Covid-19, which has killed more than 200,000 people in the U.S., have spurred some state leaders to expand access to mail-in voting, by lowering the bar for requesting an absentee ballot or by simply sending ballots out to registered voters statewide. The changes have led to concerns that Election Day itself will be fraught with confusion as large swaths of ballots may not be counted until days after Nov. 3.
Trump, who himself votes by absentee ballot, has railed against those mail-in voting plans, claiming without evidence that they will inevitably lead to widespread fraud. Far more Democrats than Republicans say they plan to vote by mail in the 2020 election, recent polls have shown.
On Wednesday, Trump refused to commit to a peaceful transfer of power when asked by a reporter at the White House if he would make such a pledge, “win, lose or draw.”
“Well, we’ll have to see what happens. You know that. I’ve been complaining very strongly about the ballots. And the ballots are a disaster,” Trump said.
He added: “Get rid of the ballots, and you’ll have a very — you’ll have a very peaceful — there won’t be a transfer, frankly, there’ll be a continuation.”
Trump has tied his doubts about voting integrity into his push to quickly fill the Supreme Court seat left vacant by the death of Justice Ruth Bader Ginsburg on Friday.
“I think this will end up in the Supreme Court and I think it’s very important that we have nine justices,” Trump said Wednesday.
At the same time, U.S. officials have warned that foreign actors are working to influence the outcome of the election. Last month, counterintelligence chief William Evanina said Russia is trying to “undermine” Biden’s candidacy, while China and Iran oppose Trump’s reelection.
FBI director Christopher Wray told Congress last week that Russia has been “very active” in its efforts to “denigrate” Biden.
Foreign election interference, along with voter suppression efforts, are the two things that “keep me up at night,” Lichtman told CNBC.
President Donald Trump refused Wednesday to commit to a peaceful transition of power if he loses the 2020 election to Democratic nominee Joe Biden.
“Well, we’ll have to see what happens. You know that. I’ve been complaining very strongly about the ballots. And the ballots are a disaster,” Trump said at a news conference at the White House. It appeared Trump was referring to mail-in ballots, which he has repeatedly condemned, without evidence, as susceptible to massive fraud.
The president had been asked by a reporter if he would commit to a peaceful transferral of power, “win, lose or draw.”
When the reporter noted that “people are rioting,” Trump replied: “Get rid of the ballots, and you’ll have a very – you’ll have a very peaceful – there won’t be a transfer, frankly, there’ll be a continuation.”
“The ballots are out of control,” Trump said, adding, “The Democrats know it better than anybody else.”
Minutes later, the president abruptly left the briefing room, telling the press, “I have to leave to take an emergency phone call.”
The White House did not immediately respond to CNBC’s request for details on Trump’s departure.
Trump in his brief time at the rostrum also discussed his upcoming announcement of a nominee to fill the Supreme Court seat vacated by the passing of Justice Ruth Bader Ginsburg.
“I think it will be a great nominee, a brilliant nominee,” Trump said, noting that he had already committed to selecting a female judge for the Supreme Court.
Ginsburg, the Court’s senior liberal associate justice, died Friday evening at age 87 due to complications from pancreatic cancer.
Trump and most Senate Republicans, especially Senate Majority Leader Mitch McConnell of Kentucky, have signaled eagerness to have Ginsburg’s seat filled before the Nov. 3 election.
Doing so would likely cement a conservative majority on the nine-member bench, which could alter the trajectory of U.S. law for decades to come.
It could also play a central role in the near term. With the coronavirus pandemic spurring massive changes to vote-by-mail rules in numerous states, the 2020 election has already become a battlefield of partisan litigation.
The president has already predicted that the high court will decide the winner.
“I think this well end up in the Supreme Court and I think it’s very important that we have nine justices, and I think the system’s going to go very quickly,” Trump said at the White House earlier Wednesday.
This is breaking news. Please check back for updates.
Joe Biden and Donald Trump
Ron Adar | Echoes Wire | Barcroft Media via Getty Images; Mandel Ngan | AFP | Getty Images
President Donald Trump and Democratic challenger Joe Biden will be questioned on topics including the coronavirus pandemic and the Supreme Court when they face off next week in the first of three debates before the 2020 election.
The Commission on Presidential Debates announced Tuesday that the Sept. 29 debate in Cleveland, Ohio, will center around six topics, each of which will receive a 15-minute time slot. The moderator, Fox News’ Chris Wallace, selected the categories, the commission said.
The first debate will be held at Case Western Reserve University and Cleveland Clinic. It is scheduled to start at 9 p.m. ET and is expected to run about 90 minutes.
The topics are:
- The Trump and Biden records
- The Supreme Court
- The economy
- Race and violence in our cities
- The integrity of the election
The debate commission said it revealed the topics in advance “in order to encourage deep discussion of the leading issues facing the country.”
But its announcement notes that the issues to be discussed are “subject to possible changes because of news developments.”
The Supreme Court, for instance, morphed from a perennial election issue into a central focus of the 2020 race following the passing of Justice Ruth Bader Ginsburg, 87, on Friday evening.
Trump and Senate Majority Leader Mitch McConnell, R-Ky., are in a hurry to confirm Ginsburg’s successor before Election Day, which is just six weeks away. Trump said he will announce his nominee Saturday.
Biden, meanwhile, has called on Washington to honor Ginsburg’s dying wish, reportedly dictated to her granddaughter, “that I will not be replaced until a new president is installed.”
“To jam this nomination through the Senate is just an exercise in raw political power. And I don’t believe the people of this nation will stand for it,” Biden said Sunday.
Meanwhile, the coronavirus pandemic continues to impact Americans’ lives, as well as the election race.
More than 200,000 people in the U.S. — more than in any other country on earth — have now died from Covid-19, according to Johns Hopkins University.
While Biden and Democrats have slammed the Trump administration for failing to effectively respond to the public health crisis, the president maintains he his efforts have been a success.
“We’re doing extremely well, relatively speaking,” Trump said in an interview on Tuesday.
“The only thing we’ve done a bad job in is public relations,” he added, because “we haven’t been able to convince people” of “what a great job we’ve done.”
Philadelphia election official warns ‘naked ballot’ ruling could jeopardize 100,000 Pennsylvania votes
The top elections official in Philadelphia is warning that a little-noticed aspect of a recent ruling by the Pennsylvania Supreme Court could cause over 100,000 votes statewide to be voided, creating the conditions for a post-election legal battle “the likes of which we have not seen since Florida in 2000.”
Lisa Deeley, the Democratic chairwoman of the city commissioners office, which oversees elections, cited the Thursday decision from the court that invalidated so-called “naked ballots,” or those that are submitted without secrecy envelopes that mask the identify of the voter.
The ruling came as part of a broad opinion in a case between Democrats and Republicans in the state that for the most part was chalked up as a win for those on the left. The court sided with Democrats in extending the state’s absentee ballot deadline and approving the use of mail-in ballot drop boxes.
Democrats are fighting in courts around the country to ease voting rules amid the Covid-19 pandemic, given the perceived advantage for nominee Joe Biden in a high turnout race, particularly among those who vote by mail. Pennsylvania is a significant prize as an electoral battleground that President Donald Trump won by a historically slim margin of about 44,000 votes in 2016.
Deeley wrote that while “everyone is talking about the significance of extending the mail ballot deadline, it is the naked ballot ruling that is going to cause chaos.”
The ruling interpreted a law that specifies that those voting by mail must place their ballots inside envelopes that shield their name. Those envelopes are then placed in a second envelope which has the address of the voter’s election board.
The state Democratic Party had argued that while the election code directed voters to use the secrecy envelope, it did not authorize officials to discard their ballots if they did not do so. The state Republican Party, on the other hand, argued that counting naked ballots would compromise the integrity of the secret ballot.
The state’s GOP Senate caucus added that such a move would be likely to lead to voter fraud, a contention rejected by the state’s Democratic secretary of state, Kathy Bookvar.
Justice Max Baer wrote that based on the text of the law it was clear that the state legislature intended that “it should not be readily apparent who the elector is, with what party he or she affiliates, or for whom the elector has voted.”
“The secrecy envelope properly unmarked and sealed ensures that result, unless it is marked with identifying information, in which case that goal is compromised,” he wrote. “Whatever the wisdom of the requirement, the command that the mail-in elector utilize the secrecy envelope and leave it unblemished by identifying information is neither ambiguous nor unreasonable.”
The number of ballots that may be discarded as a result of the ruling is unclear. In her letter, Deeley wrote that 6.4% of absentee ballots in the state’s 2019 general election were naked. She estimated that based on those figures, it was possible that up to 40,000 ballots could be thrown out in Philadelphia, and over 100,000 across the state.
Given the Covid-19 pandemic, Deeley said that it was quite possible that the percentage of ballots submitted without secrecy envelopes could rise, as more voters who are unfamiliar with voting by mail do so for the first time.
Deeley urged Rep. Bryan Cutler, the leader of the state’s House of Representatives, and Senate president pro tempore Joe Scarnati, both Republicans, to eliminate the secrecy envelope altogether. Doing so would allow officials to scan 32,000 ballots an hour, she wrote, so fast that “there is no opportunity to stop, or even slow down, and identify how an individual voted.”
“Anyone who advocates doing nothing to address this situation, in hopes that more Democratic ballots are thrown out than Republican ballots, is not being an effective policy maker and is not doing their job to make sure that this election goes off well,” she wrote.
Deeley’s plea, however, does not seem likely to convince the Republican-led state legislature.
In an email, a spokesperson for Cutler rejected the notion that a controversy over naked ballots could lead to chaos.
Michael Straub, his communications director, said the supreme court was “very clear in its ruling last week that the law requiring a proper secrecy envelope is clear and fair.”
“Previously, the department of state provided guidance telling counties to count ‘naked ballots,’ however that guidance was rescinded after the court’s ruling,” Straub said. “We believe this issue is settled for this election.”
A spokesperson for Scarnati did not immediately respond to a request for comment.
Hali Fisher, 24, waits in line to vote at Riverside High School, 1615 E. Locust St. in Milwaukee on Tuesday, April 7, 2020. The Wisconsin primary is moving forward in the wake of the coronavirus epidemic after Gov. Tony Evers sought to shut down Tuesday’s election in a historic move Monday that was swiftly rejected by the conservative majority of the Wisconsin Supreme Court by the end of the day.
Mike De Sisti | Milwaukee Journal Sentinel | USA Today | Reuters
A federal judge in Wisconsin on Monday sided with Democrats in a wide ranging ruling that will allow an extra week for absentee ballots to be counted. The ruling will also extend the deadline for online and mail-in registration and ease the rules for hiring election workers.
District Judge William Conley wrote that the deadline extensions were necessary, given the Covid-19 pandemic, to protect the right of Wisconsin citizens to vote, and said that not doing so would lead to the “near certainty of disenfranchising tens of thousands of voters relying on the state’s absentee ballot process.”
Wisconsin is one of several states likely to be crucial to the outcome of the race between President Donald Trump and Democratic nominee Joe Biden that is seeing an onslaught of election related litigation tied to the global health crisis.
Conley’s ruling extends the deadline for absentee ballots to be received to Nov. 9 if they are postmarked by Nov. 3, which is Election Day. It moves the deadline for voter registration two weeks, from Oct. 14 to Oct. 21, and temporarily scraps a state law requiring election officials to be registered voters in the county where they serve.
Conley paused his ruling from going into effect for one week, citing the likelihood that it will be appealed, and said that “NO voter can depend on any extension of deadlines for electronic and mail-in registration and for receipt of absentee ballots unless finally upheld on appeal.”
The order came in connection with four consolidated lawsuits between a number of organizations, including the national Democratic and Republican parties. Republicans urged the court to keep the existing absentee ballot deadline in place, while Democrats pushed for the extension.
A similar battle over absentee ballots played out ahead of Wisconsin’s elections in April, escalating all the way to the Supreme Court, which sided with the GOP.
Ruth Bader Ginsburg to be first woman to lie in state at Capitol after lying in repose at Supreme Court
People look at candles and placards placed to mourn the death of Associate Justice Ruth Bader Ginsburg at the Supreme Court in Washington, September 20, 2020.
Joshua Roberts | Reuters
The late Justice Ruth Bader Ginsburg this week will become the first woman to lie in state at the U.S. Capitol. She is only the second justice of the Supreme Court to be honored in that way.
Services for the justice, who died Friday at 87-years-old, will begin on Wednesday morning, starting with a private ceremony at the Supreme Court’s Great Hall for Ginsburg’s colleagues, family and close friends. She will then lie in repose at the top of the Supreme Court’s front steps on Wednesday and Thursday.
The public is invited to pay its respects between 9 a.m. and 10 p.m. on both days, the court said.
On Friday, Ginsburg will lie in state at the U.S. Capitol Building, according to House Speaker Nancy Pelosi, D-Calif. Pelosi said a formal ceremony would take place on Friday morning. As a result of the Covid-19 pandemic, it will be limited to invited guests.
Following the services, an interment ceremony will be held next week for Ginsburg at Arlington National Cemetery, where her husband was buried in 2010.
The announcements about Ginsburg’s services came hours after President Donald Trump said that he has reduced his list of potential replacements to just five names, and intends to formalize a pick by the end of the week.
Trump said that he wanted to wait until after Ginsburg’s services, out of respect. The justice has become a cultural icon and hero to many on the left.
Ginsburg’s death has prompted national mourning, alongside a fierce partisan firestorm being waged over her successor.
Democrats, including presidential nominee Joe Biden, have urged the president to delay selecting a new nominee until after Election Day, in line with the GOP’s stance in 2016, when former President Barack Obama’s efforts to name Merrick Garland to the bench were blocked. But Trump and Senate Majority Leader Mitch McConnell have said they intend to move forward without delay.
Ginsburg, appointed by former President Bill Clinton, was the second woman ever to sit on the Supreme Court, after the retired Justice Sandra Day O’Connor, and was the first female justice to pass away. The only other justice to lie in state at the Capitol, according to a website maintained by the House of Representatives, was former Chief Justice William Howard Taft, who was also a U.S. president.
The death of Supreme Court Justice Ruth Bader Ginsburg on Friday seemingly shifted everything about the 2020 race between President Donald Trump and Democratic nominee Joe Biden overnight, turning the focus of the race from Covid-19 to the future of health care, reproductive rights and the nation’s gun laws.
Ginsburg’s death has the potential to affect the race in a more direct way, too.
According to election law experts, this year’s presidential election already posed a uniquely high risk of ending up at the Supreme Court, thanks to a tsunami of litigation over state efforts to adjust voting to the global pandemic.
With Ginsburg’s death, the liberal minority on the panel has shrunk to just three members. If an emergency case between Trump and Biden splits the court along partisan lines this fall, Trump is almost certain to emerge the victor. Even if Chief Justice John Roberts, an occasional swing justice, joins the liberals, that would mean a 4-4 tie, leaving in place whatever ruling was issued by the lower court.
“Under those scenarios which were resolved by Chief Justice Roberts joining with the four liberals in a case about the election, those scenarios don’t end the same way,” said Nathaniel Persily a democracy scholar at Stanford Law School and co-founder of the Stanford-MIT Project on a Healthy Election. “The loss of Justice Ginsburg moves the median vote on the Supreme Court to the right.”
The 8-member court raises the chances of a split verdict on a blockbuster election case, a possibility that would seem to fit in during a year that has already showcased a worldwide health crisis and a once-in-a-generation impeachment battle.
The possibility also dramatically increases the importance of which court hears the case before the Supreme Court does, given that a tie among the justices would leave that court’s ruling standing.
Election lawyers are already gaming out the dizzying possibilities. For instance, Persily noted, a case stemming in the crucial battleground of Pennsylvania could theoretically be heard either by the Pennsylvania Supreme Court or the 3rd U.S. Circuit Court of Appeals, based in Philadelphia. Democrats hold a majority on the state court; on the federal appeals court, Republicans do.
Already, more than 300 elections cases stemming from Covid-19 have been filed around the country, according to a Stanford-MIT tracker. Those cases are disproportionately being waged in states like Pennsylvania, whose voters are likeliest to decide the election outcome. Both the Trump and Biden campaigns have signaled that the legal fights over the race are a top priority.
Just last week, Biden unveiled a sprawling new legal operation within his campaign that enlisted the help of two former solicitors general, Donald Verrilli Jr. and Walter Dellinger, and hundreds of other lawyers. The Republican National Committee and the Trump campaign have pledged $20 million in spending on legal battles.
The electoral significance of the Supreme Court, combined with the cramped timeline before Election Day, has forced Washington to fight over Ginsburg’s replacement even as mourning just begins.
Trump has pledged to move “without delay” to name and confirm a successor, suggesting his choice will be a woman. Biden has said any new nominee must be named after a new president is elected, reportedly in line with Ginsburg’s own last wishes.
Adding a conservative justice to the court would give the GOP 6-3 majority, lending it an upper hand not just in election litigation but also for the foreseeable future on the gamut of social and business issues the court decides each year.
Whether Trump is able to get a new justice confirmed before Election Day remains to be seen though, and could turn on decisions by the Senate’s moderate Republicans, among them Susan Collins of Maine and Mitt Romney of Utah. The GOP has a 53-seat majority in the chamber, meaning the party can withstand up to three defectors.
With the election taking place in just 44 days, the calendar is only getting tighter. On average, it takes about 70 days for a Supreme Court justice to receive a final vote in the Senate after being nominated, according to the Congressional Research Service. Among the justices on the court now, none received a vote within 60 days.
The fighting over whether a new justice should be confirmed to the bench adds to months of increasing tension about the legitimacy of the Supreme Court itself.
Democrats, angered by Senate Majority Leader Mitch McConnell’s refusal in 2016 to hold hearings on former President Barack Obama’s last Supreme Court nominee, Merrick Garland, have threatened to increase the size of the top court from nine members, or pursue other structural reforms.
McConnell’s eagerness to hold a vote on Trump’s election year nominee, a seeming break with his 2016 line in the sand, has only further energized those on the left. The Kentucky Republican has claimed that the difference between 2020 and 2016 is that, this year, the same party holds the White House and Senate.
Even before Ginsburg’s death, both Biden and Trump had said that they expected the other side to attempt to win the election unfairly. Trump has claimed that Democrats would attempt to “rig” the race via mail-in voting, a subject of much litigation, while Biden has warned that Trump would “try to steal” the election. Experts have said that the president’s claims about widespread voter fraud are baseless.
Given the context, Persily said that if the Supreme Court ends up “in a position this year like it was in Bush v. Gore, you should not expect the litigants to accept the result if they are on the losing end.”
“The court might not be the last word,” he said.
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President Donald Trump is scheduled to hold a news conference Friday at the White House, as he and Democratic nominee Joe Biden ramp up their attacks in the final weeks before the 2020 election.
Trump’s presser in the White House briefing room comes on the heels of Biden’s town hall in his hometown of Scranton, Pennsylvania, where the former vice president tore into the incumbent over the coronavirus pandemic and played up his blue-collar roots.
The president, who participated in his own town hall in Philadelphia on Tuesday, defended his administration’s response to the Covid-19 crisis, claiming he “up-played” the danger of the disease through his actions and saved lives.
After the news conference, Trump is set to depart the White House at 3:45 p.m. for Bemidji, Minnesota, to deliver remarks at a “Great American Comeback” event.