Amy Coney Barrett’s Supreme Court nomination was highly contentious for a great many reasons. It was, after all, just four years earlier when Senate Republicans said eight months before Election Day was far too close to consider a high court nominee, which was a principle GOP senators were happy to cast aside in September and October of 2020.
But equally notable was the incredible speed with which Republicans acted. Justice Ruth Bader Ginsburg died on Sept. 18; Donald Trump announced Coney Barrett’s nomination on Sept. 26; Senate Judiciary Committee Chairman Lindsey Graham announced a hearing schedule on Oct. 5; and the nominee appeared before senators on Oct. 12.
Ten days later, the committee endorsed Coney Barrett. Three days later, the Senate ended debate on her nomination. One day later, exactly one month to the day after the then-president announced his choice for the seat, she was confirmed to the lifetime position.
There were no legal or procedural reasons the GOP majority in the Senate had to act so quickly, but it was an election season — millions of Americans had already cast ballots at that point through early voting — and Republicans wanted to wrap up the process before Election Day.
In the process, then-Senate Majority Leader Mitch McConnell established a new precedent, which as The New York Times reported, Democrats are now eager to follow.
Senate Democrats say they plan to move speedily to consider President Biden’s nominee for the Supreme Court vacancy created by the retirement of Justice Stephen G. Breyer, following the lead of Republicans who raced through the nomination of Justice Amy Coney Barrett in a matter of weeks before the 2020 elections. Holding a bare 50-seat majority that is under severe threat in November’s midterm elections, Democrats acknowledged the need to act fast, particularly since an illness or death of one of their members could deprive them of their numerical advantage and greatly complicate efforts to fill the seat.
Remember, even if the GOP minority were desperate to derail the process, there isn’t much Republicans can do — just as Democrats didn’t have any realistic options in the fall of 2020.
There was some talk yesterday afternoon about Republicans trying to delay the process by boycotting a Senate Judiciary Committee vote and denying the panel a quorum, but even that wouldn’t work: Democrats refused to participate in the Coney Barrett committee vote, and Graham and his GOP colleagues advanced her to the floor anyway.
It’s a safe bet McConnell and other Republican senators will soon complain about a “rushed” process, and Democratic desperation to “ram through” Biden’s prospective nominee, but this will be an instance in which Senate Majority Leader Chuck Schumer can credible say, “We learned this by watching you,” and move on.
If the GOP didn’t like this model, the party shouldn’t have created it. A potential complication is the fact that while Justice Stephen Breyer is retiring at the end of the Supreme Court’s current term, that finish line is still several months away. Indeed, the term isn’t expected to end until late June or early July. Can the Senate move forward with a confirmation process, trying to fill a vacancy that doesn’t yet exist? As a Washington Post report noted yesterday, the answer is yes. In fact, something similar happened in the recent past. One recent precedent was the confirmation of Justin Walker to the U.S. Court of Appeals for the D.C. Circuit in 2020. He replaced former Judge Thomas Griffith, who did not formally retire from the seat until September 2020, although he announced his intention to do so much earlier that year. That meant President Donald Trump could nominate Walker — a protege of then-Senate Majority Leader Mitch McConnell (R-Ky.) — in the spring and the Senate confirm him in June 2020, long before Griffith formally retired. Walker was officially installed on the D.C. Circuit later that fall. These are details to keep in mind when Republicans and their allies start complaining in the coming weeks.
Steve Benen is a producer for "The Rachel Maddow Show," the editor of MaddowBlog and an MS NOW political contributor. He's also the bestselling author of "Ministry of Truth: Democracy, Reality, and the Republicans' War on the Recent Past."
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