Who Will Pick the Next Supreme Court Justice: Democrats or Republicans?

With the recent death of Justice Ruth Bader Ginsburg on September 18th, 2020, the replacement of a Supreme Court Justice has become a fervent discussion topic. The question: How does a Supreme Court Justice get replaced? The answer: Very complicated.

For those who do not know, the Supreme Court’s primary function is to interpret the United States Constitution to provide guidelines for future decisions in lower courts and create guidelines for the constitutionality of specific laws. Justices on the Court have no term limits and can stay Justices until they retire, die, or are determined unfit to continue working as a Justice. The power of a Supreme Court justice is immense. With only nine justices on the court, there has been a long power struggle for control over the court. Typically, the court’s decisions are nearly unanimous, returning something such as a 9-0 or 8-1 decision. Sometimes, there are incredibly controversial cases that create a 5-4 or 6-3 decision by the court. The justices’ political viewpoints often contribute to these decisions, and thus, the bipartisan power struggle takes form. 

On the surface, the process is simple. When a justice dies, retires, or is impeached, the justice is replaced. The President must nominate somebody to be the next justice, and the Senate either approves or denies the nominee. The process seems simple, but it gets far more nuanced. The nominee must have a hearing where the Senate will vote to either confirm or deny the appointment. The complication lies in that a hearing for a potential justice can only be scheduled by the Senate Majority Leader, which in the current situation is Mitch McConnell.  If the President and the Majority Leader are of separate parties or do not share common views, it is possible that a hearing will never be scheduled. The most recent example of this was in 2016 when President Barack Obama nominated Merrick Garland to the Supreme Court.  McConnell never scheduled a hearing because he could easily hold out until after Donald Trump took office and schedule a hearing for a justice nominated by Trump instead, which is exactly what happened. Situations like this are not uncommon in the Supreme Court’s long history, and they will likely never stop. In the history of the Supreme Court, a nomination has occurred during an election year 29 times. Of those 29, 19 occurred when the party of the President controlled the Senate as well, and it has been commonplace for those to go through. The remaining ten occurred when the President’s party did not control the Senate. Of these ten nominations, only two nominees were confirmed. While it may have been uncommon for no hearing to be scheduled, it is very commonplace for nominees from the opposite party of Senate control to be denied in the history of the United States. Many may describe this refusal to schedule a hearing as an abuse of power, but that is not the case. Since the introduction of party leaders in 1920 by the Democratic Party, party leaders have held a significant amount of power. Among these powers is crafting a schedule for Senate hearings, including Supreme Court nominees.

Currently, many are calling for the nomination of a justice to be delayed until after the upcoming presidential election. While this may be in the best interest of the Democratic Party, it is not for Republicans. Re-election is no certainty, so the best bet for the Republican party is to schedule a hearing as quickly as possible before the next cycle of elections possibly finds a new president or shifts power in the Senate away from the Republican party. The Republicans hold a 53-47 majority in the Senate, and all that is required for a nomination is 51 votes. The reality is that there is very little forcing the hearing to be delayed until after the next election cycle, so the decision falls on Majority Leader McConnell.