Trump is set to make his Supreme Court pick next week. Here's a preview of what to expect.
The U.S. Supreme Court has had a vacant seat since Justice Antonin Scalia died in Feb. 2016. Merrick Garland, nominated by President Barack Obama in March 2016, went on to set a record for the longest time a Supreme Court nominee has waited to be confirmed.
Garland's confirmation by the Senate never came, so now it's President Donald Trump's chance to choose a new nominee.
Trump's pick for the next court justice has reportedly been narrowed down to a short list of three names: Neil Gorsuch, Thomas Hardiman and William Pryor. Trump tweeted on Wednesday that he will make his final choice on Thursday, Feb. 2.
What happens when Trump announces his nominee? Here's what to expect.
Confirmation process
Article II of the U.S. Constitution stipulates that the president "shall nominate, and by and with the consent of the Senate, shall appoint" Supreme Court justices — meaning that while it's up to the president to appoint the Supreme Court justices, it's ultimately up to the Senate as well.
In practice, after Trumps officially nominates his Supreme Court pick, he will then officially notify the Senate of his nomination through a written statement. The nomination will then go to the Senate Judiciary Committee — unless, the National Constitution Center notes, the nominee is or has been a member of the Senate.
The Senate Judiciary Committee, the Washington Post explained, will vet the nominee and question their qualifications during a hearing, during which time the nominee will have the chance to respond to any questions or concerns the committee has. The committee then votes on the nominee.
The nomination will then go to the full Senate — even, the Post noted, if the committee has voted against the nomination. The Senate will debate the nomination before putting it up for a vote.
While the nomination can be approved with a simple majority vote, a senator can prevent the vote from taking place by filibustering the nomination. A vote for cloture, which would end the filibuster, would require 60 votes, rather than a simple majority. Republicans currently hold a 52-seat majority in the Senate, meaning they would need eight Democratic senators to support the nomination if a filibuster were to happen.
If the Senate votes in favor of the nomination, the nominee will be confirmed and take their place on the Supreme Court. This confirmation, however, has not always been the case. Out of a total 161 nominations, 12 Supreme Court nominees have been rejected by the Senate. The most recent rejection was Robert Bork, who was appointed by Ronald Reagan in 1987.
Trump's nomination: What will happen?
The confirmation process for Trump's nominee may not proceed smoothly. Following the Republicans' continued refusal to deny Garland his confirmation hearing, Senate Democrats are preparing to undertake their own act of resistance.
"If they don't appoint somebody good, we're going to oppose them tooth and nail," Senate Minority Leader Chuck Schumer told Rachel Maddow on MSNBC on Jan. 4.
Schumer stuck to that position following a meeting with Trump and other Senate leaders after Trump's inauguration. In a statement, Schumer emphasized his belief that "the president should pick a mainstream nominee who could earn bipartisan support for the vacant Supreme Court seat."
In his meeting with Trump, Schumer said he reiterated his view and "told [Trump] that Senate Democrats would fight any nominee that was outside of the mainstream."
What kind of Trump nominee would receive his approval? "It's hard for me to imagine a nominee that Donald Trump would choose that would get Republican support that we [Democrats] could support," Schumer told Maddow.
Republicans, for their part, are working to ensure they'll be able to combat any Democratic opposition. Vice President Mike Pence is meeting with Senate Democrats who may be likely to support a nominee in the face of a Democratic filibuster, including West Virginia Sen. Joe Manchin, Montana Sen. Jon Tester and even Hillary Clinton's former running mate, Virginia Sen. Tim Kaine, CNN reported.
If they can't secure the votes, Republicans also have the opportunity to use the "nuclear option" — a way of reinterpreting existing Senate laws to alter filibuster laws and allow an official to be confirmed with a simple majority, rather than 60 votes. In an essay for The Hill, Richard A. Arenberg, a former Senate staffer and co-author of Defending the Filibuster: The Soul of the Senate, described the process as "a controversial parliamentary gimmick."
Democrats, led by then-Majority Leader Sen. Harry Reid, used the last-resort tactic in 2013 in order to confirm President Obama's nominees. The precedent they established, however, specifically excluded Supreme Court nominees. Schumer, who fought against the use of the option in 2013, said he regrets Democrats' choice to establish that precedent.
Republicans can now follow the Democrats' lead by expanding their 2013 decision to apply to Supreme Court nominees — but doing so will undoubtedly make the existing partisan divisions in Congress even worse.
"The bitterness created by the twin outrages of eliminating the right to filibuster a Supreme Court nominee, coupled with the unprecedented and constitutionally suspect stonewalling of Obama's nominee, Merrick Garland will further polarize an already deeply torn Senate," Arenberg wrote.
How this will all play out in practice remains to be seen — but it's clear that the Supreme Court drama the U.S. has endured since Scalia's passing isn't likely to end soon.
