After President Trump announced his intention on Saturday to usher Judge Amy Coney Barrett into the Supreme Court before Election Day, attention turns now to whether Republicans can successfully execute a confirmation at warp speed, and whether voters will reward or punish the appointment that would cement a 6-to-3 conservative majority on the court.
Republicans have vowed that Judge Barrett, who was greeted with a rousing reception from conservative activists and politicians, would have a frictionless path to the bench. Senate Republicans appear to have the votes they need to push through the nomination over Democratic opposition, and the Republican-controlled Judiciary Committee has created a fast-tracked schedule.
Democrats are largely powerless to stop the march to confirmation, but hope to exact a political price for the rushed process that a majority of Americans have said they do not support. A national poll conducted by The New York Times and Siena College found that 56 percent of likely voters said the next president should fill the seat, compared to 41 percent who said Mr. Trump should fill it.
Democrats have sought to convey that Ms. Barrett’s judicial philosophy would imperil abortion rights and the Affordable Care Act, injecting more highly polarizing issues into a campaign already contending with a still-raging pandemic and a national reckoning over racism. Democrats aim to reclaim both the presidency and control of the Senate, and hope the Supreme Court fight could put vulnerable Republicans into thornier positions.
But seating Ms. Barrett would be a major victory for conservatives, who see her as a reliable successor to Justice Antonin Scalia, for whom she once served as a clerk. A former Notre Dame law professor who now sits on a federal appeals court in Chicago, she is a favorite of anti-abortion activists and has an almost uniformly conservative record on issues like gun rights, immigration and discrimination.
And at 48 years old, she could serve on the court for decades, moving the court to the right long after Mr. Trump leaves office.
On Saturday, he told reporters before leaving for a rally in Middletown, Pa., that he expected Judge Barrett to be confirmed before Nov. 3.
“I think this will be done before the election,” he said.
Senator Mitch McConnell of Kentucky, the Republican majority leader, has already vowed that the Senate will vote on President Trump’s Supreme Court nominee by the end of the year, though he has not made clear whether that will happen before Election Day, Nov. 3.
Now that Mr. Trump has announced his selection of Judge Amy Coney Barrett for the court’s open seat, what comes next? Here are some of the crucial questions to determine how it will play out.
What happens next? Judge Barrett will have to answer an elaborate questionnaire, which the Senate will examine. She’ll also begin calling and meeting with senators as they scrub her background and legal writings.
The 22 members of the Judiciary Committee, which is led by Senator Lindsey Graham of South Carolina, a staunch Trump ally, are expected to hold confirmation hearings for four consecutive days beginning Oct. 12. That is considerably faster than recent Supreme Court nominations, cutting the time to prepare for the hearings by about two-thirds.
After the hearings, the committee will vote on whether to recommend the nomination to the full Senate, a meeting Republicans have tentatively scheduled for Oct. 22. If that schedule holds, the full Senate would vote on whether to confirm Judge Barrett the final week of October, just a week before Election Day.
Does Mr. McConnell have the votes to confirm a nominee? It appears so.
Because Republicans hold a 53 to 47 majority, Democrats would need four Republican senators to join them in opposition to sink Judge Barrett.
Two Republicans, Susan Collins of Maine and Lisa Murkowski of Alaska, had said they opposed filling the seat until voters decide the presidency. Ms. Collins has stood by that view, warning that she will not vote to confirm Mr. Trump’s nominee before Election Day, period. Ms. Murkowski now appears more open to doing so, but as a vocal proponent of abortion rights, she is expected to look warily on Judge Barrett.
All 51 other Republicans so far appear to be content with the nominee, and given their eagerness to fill the vacancy with a conservative and the tight timetable, they are going to be hesitant to break with their party leaders.
Can Democrats block Trump’s nominee through a filibuster? No.
Democrats eliminated the 60-vote threshold for most judicial nominees in 2013, frustrated by Republicans’ use of the filibuster to slow and impede President Barack Obama’s agenda. In turn, angered by resistance to the nomination of Justice Neil M. Gorsuch in 2017, Republicans abolished the limitation on Supreme Court nominees.
As a result, Mr. McConnell could bring the nomination to the Senate floor and approve it with a simple majority vote.
What effect will the election have on the vacancy? For many Republican senators up for re-election this year, the ideal situation might be to begin the confirmation process quickly, injecting it into the political bloodstream and energizing conservative voters, but waiting until after Election Day — when vulnerable incumbents no longer have to worry about being cast out by angry independent and liberal voters — to hold a confirmation vote.
What if Republicans lose the White House, the Senate or both? Could they still confirm Mr. Trump’s nominee after the election? Yes.
Congress typically reconvenes after Election Day for a lame-duck session, when lawmakers act on unfinished business before adjourning for the year. Since the newly elected members would not be seated until the new Congress convened in January, Republicans would remain in control of the Senate even if they had lost their majority.
Similarly, if he were to lose on Election Day, Mr. Trump would remain president until Joseph R. Biden Jr. assumed office in January.
THE NEW YORK TIMES /
SIENA COLLEGE POLL
Based on a New York Times/Siena
College poll of 950 likely voters
from Sept. 22 to Sept. 24.
THE NEW YORK TIMES / SIENA COLLEGE POLL
Based on a New York Times/Siena College poll of
950 likely voters from Sept. 22 to Sept. 24.
THE NEW YORK TIMES /
SIENA COLLEGE POLL
Based on a New York Times/Siena College poll
of 950 likely voters from Sept. 22 to Sept. 24.
A clear majority of voters believe the winner of the presidential election should decide who will fill the Supreme Court seat left open by the death of Justice Ruth Bader Ginsburg, according to a national poll conducted by The New York Times and Siena College, a sign of the political peril President Trump and Senate Republicans are courting by trying to rush through an appointment before the end of the campaign.
In a survey of likely voters taken in the week leading up to Mr. Trump’s nomination on Saturday of Judge Amy Coney Barrett to the high court, 56 percent said they preferred to have the election act as a sort of referendum on the vacancy. Only 41 percent said they wanted Mr. Trump to appoint a justice before November.
More striking, the voters Mr. Trump and endangered Senate Republicans must reclaim to close the gap in the polls are even more opposed to a hasty pick: 62 percent of women, 63 percent of independents and 60 percent of college-educated white voters said they wanted the winner of the campaign to fill the seat.
The warning signs for Republicans are also stark on the issue of abortion, on which Judge Barrett, a fiercely conservative jurist, could offer a pivotal vote should she be confirmed: 60 percent of those surveyed believe abortion should be legal all or some of the time.
The New York Times /
Siena College poll
Voters prefer that the winner of the election choose the next Supreme Court justice, and trust Joe Biden over Donald Trump to do a better job in making the pick.
Whom would you like to see appoint the next Supreme Court Justice?
Winner of election
Whom do you trust to do a better job of choosing a Supreme Court Justice?
Do you think abortion should be…
Do you support or oppose the Affordable Care Act?
Based on a New York Times/Siena College poll of 950 likely voters from Sept. 22 to Sept. 24.
The poll suggests that Mr. Trump would reap little political benefit from a clash over abortion rights: 56 percent said they would be less likely to vote for Mr. Trump if his justice would help overturn Roe v. Wade, while just 24 percent said they would be more inclined to vote for him.
Beyond the coming battle over the court, the survey indicates that Mr. Trump remains an unpopular president who has not established a clear upper hand over Mr. Biden on any of the most important issues of the campaign. Voters are rejecting him by wide margins on his management of the coronavirus pandemic, and they express no particular confidence in his handling of public order. While he receives comparatively strong marks on the economy, a majority of voters also say he is at least partly to blame for the economic downturn.
Pressing his case that the November election will be a “disaster,” President Trump told supporters on Saturday night that he hoped any dispute over the vote tally would not have to be decided by Congress — but that he would have an advantage if it did.
“I don’t want to end up in the Supreme Court and I don’t want to go back to Congress either, even though we have an advantage if we go back to Congress,” Mr. Trump said at a rally in Middletown, Pa. “Does everyone understand that? I think it’s 26 to 22 or something, because it’s counted as one vote per state. So we actually have an advantage.”
Mr. Trump appeared to be referring to what is known as a contingent election, in which the House of Representatives chooses the next president if no candidate wins an absolute majority of votes in the Electoral College. In that scenario, each state’s House delegation is given one vote, with 26 votes required to win. Mr. Trump was correct that Republicans currently control 26 state delegations and Democrats 22, with two effectively tied — although the vote occurs after a new Congress is seated in early January, so those totals could change. (The Senate would separately choose the vice president.)
Mr. Trump is also hoping that a pre-election Senate confirmation of his choice for the Supreme Court, Judge Amy Coney Barrett, will guarantee him a conservative majority on the high court in the event that it decides the outcome, as it did in 2000.
Hours after announcing Judge Barrett’s nomination, Mr. Trump spoke in light rain to an outdoor crowd of perhaps a few thousand — far fewer than the “tens of thousands” he claimed from onstage — on an airport tarmac near Harrisburg. It was the latest of several rallies he has held in which his supporters have packed together closely despite the pandemic, mostly without masks.
Flanked by a huge television screen with the words “Fill that seat,” Mr. Trump drew roars of applause and chants of “U.S.A.” when he predicted that Republicans in the Senate would quickly confirm Judge Barrett.
As has become his routine, Mr. Trump again cast doubt on the reliability of mail-in ballots and claimed without evidence that Democrats were plotting to use them to steal the November election from him.
“Keep your eyes open,” he told supporters, urging them to watch for “any shenanigans” like “people dumping things, flushing things.”
Mr. Trump lavished praise on Judge Barrett, calling her “a brilliant legal mind and extraordinary scholar.”
“That’s a little better than Biden, wouldn’t you say,” he asked, referring to his Democratic opponent, Joseph R. Biden Jr.
“She should be running for president,” he declared.
Judge Amy Coney Barrett, President Trump’s pick for the Supreme Court, has compiled an almost uniformly conservative voting record in cases touching on abortion, gun rights, discrimination and immigration. If she is confirmed, she would move the court slightly but firmly to the right, making compromise less likely and putting at risk the right to abortion established in Roe v. Wade.
Judge Barrett’s judicial opinions, based on a substantial sample of the hundreds of cases that she has considered in her three years on the federal appeals court in Chicago, are marked by care, clarity and a commitment to the interpretive methods used by Justice Antonin Scalia, the giant of conservative jurisprudence for whom she worked as a law clerk from 1998 to 1999.
But while Justice Scalia’s methods occasionally drove him to liberal results, notably in cases on flag burning and the role of juries in criminal cases, Judge Barrett could be a different sort of justice.
“There may be fewer surprises from someone like her than there were from Justice Scalia,” said Brian T. Fitzpatrick, a former law clerk to the justice and a law professor at Vanderbilt University. “She is sympathetic to Justice Scalia’s methods, but I don’t get the sense that she is going to be a philosophical leader on how those methods should be executed.”
One area in which almost no one expects surprises is abortion. Mr. Trump has vowed to appoint justices ready to overrule Roe v. Wade, the 1973 decision that established a constitutional right to abortion. Groups opposing abortion have championed Judge Barrett’s nomination. And her academic and judicial writings have been skeptical of broad interpretations of abortion rights.
Judge Barrett will doubtless tell senators that the Roe decision is a settled precedent, as she did when Mr. Trump nominated her to the appeals court in 2017. And the Supreme Court may not hear a direct challenge to Roe anytime soon, preferring instead to consider cases that could chip away at abortion rights.
But when the day comes, many of Judge Barrett’s supporters are convinced that she will not flinch. Justice Scalia wrote that the Constitution has nothing to say about abortion and that states should be allowed to decide the question for themselves. There is no reason to believe Judge Barrett disagrees.
Sara Gideon, the Democratic speaker of the Maine House of Representatives, is seeking to do the once unthinkable: unseat the four-term Senator Susan Collins, one of the last surviving moderate Republicans, and the only Republican from New England, in the U.S. Senate.
Not Trumpian enough for many Republicans, too Republican for most Democrats, the once-popular Ms. Collins is unexpectedly vulnerable in this strangest of election years.
Her challenger is a smooth campaigner, fluent and assured about issues like Medicaid expansion, the environment and health care, and skilled in talking about how they affect Mainers. But the country’s partisan divisions are infecting the state, and the local contest is part of a much wider national picture. The race will turn much less on Ms. Gideon’s record, or even her political positions, than on what Maine voters think about Senator Collins. Has she sold her soul to President Trump’s Republican Party?
And so Ms. Gideon is trying to present herself not just as an effective state politician who is ready for the national stage, but also as the obvious choice for voters alarmed at the president — and, by extension, at Ms. Collins.
“Gideon is charismatic and campaigns well and has a good rapport with crowds,” said Mark Brewer, a professor of political science at the University of Maine. “But the race isn’t primarily about Sara Gideon — it’s much more about Susan Collins.” And of course it is also about Mr. Trump, whose shadowy presence looms in the air at all times, in Maine as across the country.