A nomination battle is brewing in the wake of Justice Ruth Bader Ginsburg’s death Friday.
While it is unclear how long there will be a vacant seat, the Supreme Court is scheduled to begin its new term Oct. 5 with eight members. The justices will meet Sept. 29 to review hundreds of pending appeals and to decide which cases it will hear.
Two high-profile cases already are lined up for later this year.
A major challenge to Obamacare will be heard in California v. Texas on Nov. 10. Texas and other conservative states argue that because Congress passed tax legislation in 2017 that reduced the individual mandate’s tax penalty to zero, Obamacare is now unconstitutional.
This will be the third time the high court is being asked to undo Obamacare, as two previous cases failed to do so.
Then Dec. 2, a major showdown between the Trump administration and the Democrat-led House Judiciary Committee will be argued. The Supreme Court will decide whether the Justice Department has to turn grand jury documents over to Congress from former Special Counsel Robert Mueller’s investigation into Russian election interference.
If there is a 4-4 tie in any cases before Ginsburg’s vacancy is filled, then the justices can reschedule the case for the next term. Alternatively, they can let lower courts’ rulings stand in the event of a tie, but no precedent is set.
President Trump has called on Republicans to move “without delay” to fill the vacancy, saying that he will likely name a nominee next week and would like to see a vote before the November election.
Senate Democrats are adamant about waiting until after the election though, and some Senate Republicans also are saying they don’t want to hold hearings and vote on a nominee until next year.
Sen. Susan Collins, R-Maine, said Saturday she does “not believe that the Senate should vote on the nominee prior to this election.” Sen. Lisa Murkowski, R-Alaska, told Alaska Public Media hours before Ginsburg’s death Friday that she would not vote to confirm a Supreme Court nominee, citing the upcoming election.
Still, other Republicans want to quickly approve a nominee. Texas Sen. Ted Cruz, who is on Trump’s list of potential nominees, warned of a “constitutional crisis” if a nominee isn’t confirmed by the Senate before Nov. 3.
“We cannot have Election Day come and go with a 4-4 court,” Cruz told Sean Hannity Friday night. “A 4-4 court that is equally divided cannot decide anything. And I think we risk a constitutional crisis if we do not have a nine-justice Supreme Court, particularly when there is such a risk of a contested election.”
Senate Majority Leader Mitch McConnell said Friday, “President Trump’s nominee will receive a vote on the floor of the United States Senate.” McConnell has been accused of hypocrisy after helping block the nomination of D.C. Circuit Court of Appeals chief Judge Merrick Garland in 2016.
Senate Judiciary Committee Ranking Member Dianne Feinstein, D-Calif., called McConnell out for his previous position and said Friday that “under no circumstances should the Senate consider a replacement” before a new president is inaugurated.
“Senator McConnell made his position clear in 2016 when he held Justice Scalia’s seat vacant for 10 months so he could deny President Obama an appointment – a goal he himself admitted,” Feinstein said in a statement Friday.
There are 46 days left until Election Day, so if Senate Republicans were able to approve Trump’s nominee before Nov. 3, it would be a historically fast confirmation process.
The Associated Press contributed to this report.