Supreme Court vacancy explained: How many votes are needed to confirm a Justice and how long does it take?

First time vacancy has opened so close to election after death of Ruth Bader Ginsburg  

Donald Trump says he will announce nominee to fill Ruth Bader Ginsburg 'very soon'

The US Senate has been left in political uproar following the death of Supreme Court Justice Ruth Bader Ginsburg – which marks the first time a vacancy on the high court has become available so close to a presidential election.

After Ginsburg’s death was announced on Friday by the Supreme Court, many began to voice their fears that Donald Trump would use the opportunity to swing the 2020 election in his favour. 

Senate majority leader Mitch McConnell vowed in a statement on Friday night that “President Trump’s nominee will receive a vote on the floor of the United States Senate". But Mr McConnell failed to divulge when or how that would happen, and there's significant uncertainty about what comes next.

Here is an overview of the confirmation process, and everything we currently know and don’t know about what’s to come in the race to replace Ginsburg:

Can Ginsburg be replaced before the US 2020 election?

In short, yes, but it would require an extremely quick turnaround from both Mr Trump and the high court. Supreme Court nominations have taken around 70 days to move through the Senate in the past – the last, for Brett Kavanaugh, took even longer. The election, taking place on 3 November, is 46 days away. 

Currently, there are no set rules for how long the process should take once Mr Trump announces his pick and some past nominations have moved more quickly than others. Ultimately, it will come down to politics and votes.

How many votes are needed to confirm an appointment?

A majority. Republicans control the Senate by a 53-47 margin, meaning they could lose up to three votes and still confirm a justice – if Mike Pence were to break a 50-50 tie.

Supreme Court nominations used to need 60 votes for confirmation if any senator objected, but Mr McConnell changed Senate rules in 2017 to allow the confirmation of justices with 51 votes. He did so as Democrats threatened to filibuster Mr Trump’s first nominee, Justice Neil Gorsuch.

How does it affect the US 2020 election campaign?

Republicans are defending 25 of the 38 seats that are on the ballot this year and many of their vulnerable members have been eager to end the fall session and return home to the campaign trail. The Senate is scheduled to recess in mid-October, though that schedule could change.

Still, many of the most vulnerable senators may be hesitant to vote on a nominee before facing voters in November, and their views could ultimately determine the timeline for action. Others may want to campaign on their eventual vote. Mr McConnell himself is among those up for reelection this year.

Can Ginsburg be replaced after the US 2020 election?

Yes. Republicans could well vote on Mr Trump's nominee in the “lame duck” session that takes place after the November election and before the next Congress takes office on 3 January. No matter what happens in this year's election, Republicans are expected to be in charge of the Senate during that period.

The Senate would have until 20 January, the date of the presidential inauguration, to act on Mr Trump’s nominee. If Mr Trump were reelected and his pick had not been confirmed by the inauguration, he could renominate his pick as soon as his second term began.

How is a new Supreme Chief Justice appointed?

When a vacancy occurs on the Supreme Court, the president is given authority under the Constitution to nominate someone to fill it. It is up to the Senate Judiciary Committee to vet the nominee and hold confirmation hearings. Once the committee approves the nomination it goes to the Senate floor for a final confirmation vote. This process passes through several time-consuming steps. Traditionally senators want to meet and assess the nominee themselves, which requires weeks of meetings around the Capitol.

And that’s assuming the process runs smoothly. In 2018, Mr Kavanaugh’s confirmation fight took weeks longer than expected after Christine Blasey Ford accused him of sexually assaulting her when they were teenagers. Mr Kavanaugh denied the accusation and was confirmed by the Senate in a 51-49 vote.

Who are the senators to watch?

With the slim 53-seat majority in the Senate, the Republicans have few votes to spare. Republicans Susan Collins of Maine, Lisa Murkowski of Alaska, Mitt Romney of Utah and others will be among those senators to watch. Ms Collins on Saturday said that the nominee should be chosen by whomever is elected president on 3 November. 

It’s not just the qualifications of Mr Trump’s nominee but the political calculation of a vote linked so closely to an election that could shape their position. Ms Collins is in a tight race for her own reelection in Maine – she and Ms Murkowski have long been watched for their support of a woman’s right to an abortion under Roe vs Wade.

Ms Murkowski and Mr Romney have been critical of Mr Trump and protective of the institution of the Senate.

Others facing close reelection contests in their states, including senator Cory Gardner of Colorado, could face pressure not to vote ahead of the election or in its immediate aftermath, especially if they were to lose their seats.

Additional reporting by agencies

Register for free to continue reading

Registration is a free and easy way to support our truly independent journalism

By registering, you will also enjoy limited access to Premium articles, exclusive newsletters, commenting, and virtual events with our leading journalists

Please enter a valid email
Please enter a valid email
Must be at least 6 characters, include an upper and lower case character and a number
Must be at least 6 characters, include an upper and lower case character and a number
Must be at least 6 characters, include an upper and lower case character and a number
Please enter your first name
Special characters aren’t allowed
Please enter a name between 1 and 40 characters
Please enter your last name
Special characters aren’t allowed
Please enter a name between 1 and 40 characters
You must be over 18 years old to register
You must be over 18 years old to register
Opt-out-policy
You can opt-out at any time by signing in to your account to manage your preferences. Each email has a link to unsubscribe.

By clicking ‘Create my account’ you confirm that your data has been entered correctly and you have read and agree to our Terms of use, Cookie policy and Privacy notice.

This site is protected by reCAPTCHA and the Google Privacy policy and Terms of service apply.

Already have an account? sign in

By clicking ‘Register’ you confirm that your data has been entered correctly and you have read and agree to our Terms of use, Cookie policy and Privacy notice.

This site is protected by reCAPTCHA and the Google Privacy policy and Terms of service apply.

Register for free to continue reading

Registration is a free and easy way to support our truly independent journalism

By registering, you will also enjoy limited access to Premium articles, exclusive newsletters, commenting, and virtual events with our leading journalists

Already have an account? sign in

By clicking ‘Register’ you confirm that your data has been entered correctly and you have read and agree to our Terms of use, Cookie policy and Privacy notice.

This site is protected by reCAPTCHA and the Google Privacy policy and Terms of service apply.

Thank you for registering

Please refresh the page or navigate to another page on the site to be automatically logged inPlease refresh your browser to be logged in