Could Republicans Fill Ginsburg's Supreme Court Seat With Trump Nominee Even if They Lose the Senate?

Republicans don't need to retain control of the Senate in November to put President Donald Trump's nominee on the Supreme Court.

Part of what makes the Senate so valuable to political parties is that it holds the power to place the president's nominee on the high court. The clock is ticking for Republicans to confirm a nominee to fill Justice Ruth Bader Ginsburg's seat before the new Senate starts, a move that Democrats vehemently oppose for violating a precedent set in 2016 when President Barack Obama was in office.

Trump is expected to announce his nominee on Saturday, and Republicans, who hold a 53-seat majority, have support from the 51 senators needed to move forward with the nomination. Even with a unified Republican Senate, filling Ginsburg's seat is unlikely to happen before Election Day, though, as it would be a record-setting timeline in the modern era, Paul Collins, a professor at the University of Massachusetts, Amherst, told Newsweek.

Once a nominee is announced, the Senate Judiciary Committee vets the nominee and holds public hearings, then votes on whether to move the nomination to the full Senate for a vote. The process usually takes more than a month, Collins said. Then there are procedural votes, and the professor said there's "no doubt" Senate Democrats will demand at least 30 hours of debate.

"History tells us that it's unlikely a nominee would be confirmed by the election, but the stakes are very high this time and Senate Republicans may push for a confirmation before the election," Collins said.

Since 1975, it's taken an average of 76 days to confirm a Supreme Court justice, according to the Congressional Research Service, and the current justices took an average of 78 days to be confirmed. If Trump announces his nominee on Saturday, there will be only 38 days until Election Day, November 3.

At least six Republicans—Senators Martha McSally, Cory Gardner, Joni Ernst, Susan Collins, David Perdue and Steve Daines—are considered vulnerable in their bids for re-election, and if they lose, Democrats could take control of the Senate. However, there are 99 days until the new Senate starts on January 3, which means it would not be "unusual at all" if a nominee is confirmed before winners of the 2020 election are sworn in, John Kastellec, an associate professor at Princeton University, said.

So Republicans could lose control of the Senate in the November election and still confirm Trump's nominee. It's unlikely Democrats will let that happen without a fight, though.

"If they have the votes, there's nothing stopping Republicans from jamming through a nominee, either before Election Day or in the lame duck [session]. But doing so would be hypocritical and a threat to the rule of law," Alicia Bannon, managing director of the Brennan Center for Justice's Democracy Program, said.

In March 2016, Obama nominated Merrick Garland to fill a seat left vacant by the death of Justice Antonin Scalia. At the time, Senate Majority Leader Mitch McConnell said the vacancy shouldn't be filled until there was a new president because "the American people should have a voice in the selection of the next Supreme Court justice."

Senator Lindsey Graham is also now having his "words used against" him, as he told reporters in 2016 that they'd be "absolutely right" to do so. After Scalia's death, he said if there was a Republican president in 2016 and a vacancy occurred in the last year of the first term, the Senate should "let the next president, whoever that might be, make that nomination."

Prominent Democrats, including House Speaker Nancy Pelosi and Senate Minority Leader Chuck Schumer, criticized the Republican-controlled Senate for not voting on Obama's nomination, saying they were violating their constitutional duty. Now that Republicans are pushing for a vote on Trump's nominee, Democratic Party leaders are charging the GOP with hypocrisy.

While stopping the nomination from going forward is a tall order for Democrats, because they'd need at least four Republicans to vote against it, they're keeping their "options open," Senate Minority Whip Dick Durbin told CNN's Newsroom on Saturday. They could use other bills as leverage to postpone it or try to add seats to the Supreme Court if they take control of the Senate and White House in November.

"If the Republicans were to lose the Senate in the November election, Democrats would no doubt declare World War III and do everything in their power to stop a confirmation," Collins said.