Following the death of Justice Ruth Bader Ginsburg on September 18, President Donald Trump formally appointed Judge Amy Coney Barrett, a judge on the Court of Appeals for the Seventh Circuit, to fill in the newly vacated seat, on September 26. With less than 40 days until the Presidential Election, this is seen as a very controversial move by the president and is being resisted by Democratic and a few Republican lawmakers on Capitol Hill.

Judge Barrett has served in the Court of Appeals since being confirmed by the Senate in October of 2017. Being a devout Catholic, Barret is a popular figure among conservatives (especially the Christian Right) for her stance on abortion and LGBTQ+ issues, Democrats have attacked her nomination over her views and her nomination in general.

The nomination of an appointee to the Supreme Court is fiercely being fought by Democratic lawmakers and a recent New York Times poll suggests that 56% of Americans believe that whoever wins the Presidential election on November 3 should pick the nominee to fill the vacancy. It was also the dying wish of Ginsburg that whoever won the November election would fill her seat if she were to pass prior to the election. 

Democratic lawmakers, and a few Republicans, have compared the President’s nomination to former President Barack Obama’s nomination of Court of Appeals (DC) Judge Merrick Garland following the death of Supreme Court Justice Antonin Scalia in February of 2016. Often citing the apparent hypocrisy of Republican lawmakers who refused to make an appointment for Judge Garland. 

Notably, Senate Majority Leader Mitch McConnell (R-KY), who served as majority leader in 2016, refused to allow an appointment (nomination process) for Garland. However, McConnell supports the nomination of Barret and will have the nomination process and vote take place before Election Day.

The current Senate makeup is a Republican majority (53-45-2). For Barret to make her way to the court, she needs a 51 vote majority to be confirmed. If the Senate ties at a 50-50 vote, Vice President Mike Pence can break the tie, similarly to what happened with the confirmation of Supreme Court Justice Brett Kavanaugh. 

Despite holding a majority, two Republican Senators Susan Collins (ME) and Lisa Murkowski (AK) have stated they will not support the nomination of Barrett. Murkowski believes that it is too close to an election and Collins argues that it should be up to the next president to decide. 

No Senate Democrat has come out in favor of confirming a new Justice, given the proximity to the election.

If the confirmation vote does fail, however, Republicans have up until January of 2021 to confirm a new Justice. If Trump loses the election or the Senate flips into Democratic control, the Democrats have a shot at confirming a Justice with the 117th Congress and a Biden administration. 

Regardless of the outcome, Barrett’s appointment will begin on October 12 (with questions beginning the following day) with the Senate Judiciary Committee and is hoped to be pushed through the committee on October 26, according to Chairman Lindsey Graham (R-SC).

Barretts confirmation vote is expected to be held shortly before Election Day. 

Though this is a battle in the Senate, it is also a greater war being fought on the campaign lines for the Presidency, senate, and house races throughout the country. As Republicans fight to make gains in the House and keep control of the Senate, this gives the Democrats a new front to fight on. Before the death of Ginsburg, the Court was in conservative control with a 5-4 majority. Under a 6-3 majority, there could be some very crucial decisions concerning abortion, healthcare, gun rights, and even the outcome of the 2020 election.