Trump says Supreme Court vacancy should be filled because Republicans control White House, Senate

Richard Wolf

WASHINGTON – President Donald Trump said in Tuesday night's presidential debate that he has the right to fill a Supreme Court vacancy because of his party's political power.

“We won the election. Elections have consequences," Trump said at the top of the debate. "We have the Senate, we have the White House, and we have a phenomenal nominee.”

But in 2016, when President Barack Obama sought to get his own nominee confirmed, he was denied that opportunity by the Republican-controlled Senate.

Democratic nominee Joe Biden said Americans have a right to have their say this time, just as they did in 2016.

“They’re not going to get that chance now because we’re in the middle of an election already,” Biden said. “We should wait and see what the outcome of this election is.”

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Democrats have decried the process more than the nominee, federal appeals court Judge Amy Coney Barrett. They note that in 2016, Associate Justice Antonin Scalia died in February, but Senate Republicans blocked President Barack Obama from filling the seat for the last 11 months of his presidency. Now, Republicans are rushing to confirm Barrett on the eve of the very next presidential election.

President Donald Trump and Democratic presidential nominee Joe Biden participate in the first presidential debate moderated by Fox News anchor Chris Wallace at the Health Education Campus of Case Western Reserve University on September 29, 2020, in Cleveland, Ohio.

Only two of the Senate’s 53 Republicans have objected to that timing, giving Majority Leader Mitch McConnell, R-Ky., the votes he needs to push through Barrett’s nomination before the election.

What’s more, the timetable is extremely short. Usually, it takes about 70 days for a Supreme Court nominee to win confirmation. Republicans are truncating the schedule to get it done in the space of 38 days. No justice in history has been confirmed later than July before a presidential election.

In a Washington Post-ABC poll out last week, 57 percent of Americans said the decision on replacing Ginsburg should await the winner of the presidential election. Only 38 percent said Trump and the current Senate should move ahead.

Biden said because of Barrett's nomination, both the Affordable Care Act and abortion rights are on the ballot. The health care law comes before the high court for the third time in November, when Barrett could be seated. She has said the court's initial decision upholding the law was wrongly decided.

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On abortion, Trump jumped in to say, “You don’t know her view on Roe v. Wade.”

Barrett has written that Supreme Court precedents are not sacrosanct, which liberals have interpreted as a threat to the 1973 Roe v. Wade decision legalizing abortion nationwide.

Those views give anti-abortion groups hope that with her vote, the Supreme Court will uphold efforts by states to further restrict abortion rights – and potentially overrule Roe v. Wade some day.

In one case before the U.S. Court of Appeals for the 7th Circuit, she would have allowed Indiana to try again to win court approval of a law banning abortions based on sex, gender or disability.

More:Health care law faces another Supreme Court showdown, this time without Ginsburg's vote

Biden ducked a question about whether he would support adding more justices to the Supreme Court if Amy Coney Barrett is confirmed, as some liberal interest groups want.

“I’m not going to answer the question,” Biden said. When Trump interrupted him, Biden said, “Will you shut up, man.”

If Trump and the Republicans push Barrett through, Democrats have vowed retaliation should they win control of the Senate in November. Their options range from ending filibuster rights – making it nearly impossible for a Republican minority to block legislation – to increasing the number of seats on the Supreme Court to restore ideological balance to the high court that will have a 6-3 conservative advantage if Barrett is confirmed.