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Politics As it mourns Ruth Bader Ginsburg, Washington turns toward messy process of filling vacancy

04:26  19 september  2020
04:26  19 september  2020 Source:   usatoday.com

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WASHINGTON – Even as they began to process and mourn the loss of Supreme Court Justice Ruth Bader Ginsburg on Friday, officials at the White House and on Capitol Hill had already been thinking about the inevitable – and messy – process of filling her seat.

The vacancy gives President Donald Trump an opportunity to create a solidly conservative court, perhaps for decades to come, though the already fraught process of confirming a nominee will play out two months before a tight presidential election.

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Supreme Court nominees generally take months to win confirmation – even longer if controversy arises. Trump nominated Justice Neil Gorsuch in January 2017, days after taking office, and the Senate did not confirm him until April. The nomination of Justice Brett Kavanaugh, delayed by allegations of sexual assault, took three months in 2018.

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When an election comes into play, the process can become even more complicated. Senate Majority Leader Mitch McConnell, made his most memorable maneuver of refusing to give President Barack Obama's last appointee to the high court, Judge Merrick Garland, a Senate hearing in 2016.

More recently, McConnell reopened the debate by asserting that filling a U.S. Supreme Court vacancy is on the table during the 2020 presidential election.

McConnell has made clear over the months that if the Supreme Court did see a vacancy he would not hesitate to fill it even during the 2020 cycle.

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"We'd fill it," McConnell told Fox News in February.

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White House aides have long said Trump would nominate a replacement as soon as there is a vacancy. Earlier this month, Trump unveiled a new list of 20 potential nominees, part of an effort to his signal the direction he would take the court if reelected.

News of Ginsburg's death came as Trump was speaking at a campaign rally in Minnesota, apparently unaware of her passing.

The White House did not immediately respond to request for comment.

Trump officials in the past have described two potential candidates as favorites: Judge Amy Coney Barrett, who he placed on the U.S. Court of Appeals for the 7th Circuit, and Judge Amul Thapar of the 6th Circuit appeals court, a McConnell favorite.

Aides said they expect Trump to nominate a replacement soon, but did not want to discuss the process out of respect for Ginsburg.

On July 15, amid questions about Ginsburg's health, White House Chief of Staff Mark Meadows told reporters that Trump would seek to fill any vacancy before Election Day.

“I can’t imagine that if he had a vacancy on the Supreme Court that he would not very quickly make the appointment and look for the Senate to take quick action," he said. "That being said, we’re glad that Ruth Bader Ginsburg is well and out of the hospital and I don’t want any comment there to be a suggestion that we do anything but wish her the very best in health.”

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Despite McConnell's vow to move ahead during an election, some members of his conference have voiced hesitancy, especially if the vacancy came close to an election.

Sen. Lindsey Graham, R-S.C. and a close ally of the president, vowed in 2018 he would not fill a vacancy if it came too close to the election.

"If an opening comes in the last year of President Trump’s term, and the primary process has started, we’ll wait until the next election," he said at the time.

Graham chairs the Senate Judiciary Committee, the panel that would be tasked with the nomination process for a new justice.

In 2018, Sen. Chuck Grassley, R-Iowa and one of the most senior members of the Senate, similarly said he would not consider a nominee during an election. He played a key role in 2016 as chairman of the Senate Judiciary Committee, vowing not to start the nomination process of Garland.

"Because I pledged that in 2016," Grassley said, explaining his rationale. "That's a decision I made a long time ago."

The issue is also likely to be a challenge for moderate Republicans and those facing tough races in November. Polling has shown Democratic candidates up in several states, leaving the GOP's 53-47 majority in danger.

A source close to McConnell told USA TODAY that this vacancy will leave the Kentucky Republican in a bind given how other Republican senators might react to the news of Ginsburg's death.

"His hands may be tied," the source said. "We just don't know yet."

Sen. Lisa Murkwoski, R-Alaska, a key moderate in the chamber, already has poured cold water on the idea of filling a vacancy so close to November, telling The Hill in August that doing so would be a "double standard" after Garland.

"I would not support it," she said.

Opponents said Trump and the Republicans would pay a political price if they try to rush a replacement onto the high court.

"This seat will be filled in due time," tweeted Neal Katyal, a legal commentator and former acting solicitor general.

"If Trump tries to rush it, he will be monkeying with the Court, w/devastating consequences," he said in a tweet. "The Democrats will have options, incl increasing the size of the Supreme Court. For now, let's take a deep breath and remember the legacy RBG left us."

This article originally appeared on USA TODAY: As it mourns Ruth Bader Ginsburg, Washington turns toward messy process of filling vacancy

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