WASHINGTON -- President Donald Trump on Saturday urged the Republican-run Senate to consider "without delay" his coming nomination to fill the Supreme Court vacancy created by the death of Justice Ruth Bader Ginsburg.
Trump said Saturday that a pick would probably come in the next week and would "most likely" be a woman. "We want to respect the process," he said. "I think it's going to go very quickly, actually."
But with some Republican senators balking, Sen. Mitch McConnell, the majority leader from Kentucky, was canvassing to figure out whether he had enough votes for a confirmation in the next six weeks.
"We were put in this position of power and importance to make decisions for the people who so proudly elected us, the most important of which has long been considered to be the selection of United States Supreme Court Justices," Trump wrote Saturday morning on Twitter. "We have this obligation, without delay!"
He did not explicitly demand a Senate decision before voters cast their ballots. Some Republican strategists said it would make more sense for the president to name a choice right away and proceed with hearings but wait for a Senate vote until after Nov. 3.
According to two sources familiar with the matter, Trump's top choices include Judges Amy Coney Barrett of the 7th U.S. Circuit Court of Appeals in Chicago; Barbara Lagoa of the 11th Circuit in Atlanta; and Allison Jones Rushing of the 4th U.S. Circuit Court of Appeals in Richmond, Va.
At least one man, Judge Amul R. Thapar of the 6th Circuit in Cincinnati, is also being considered. A McConnell ally from Kentucky, he has been screened by Trump's team for past openings, and he would be the first Asian-American on the high court.
All were nominated by Trump to their present positions and have wide support in the conservative legal establishment that has advised the president on his judicial picks. Lagoa, a Hispanic who served briefly on the Florida Supreme Court, had the easiest confirmation, where a majority of Democratic senators supported her in an 80-to-15 vote.
MANEUVERING BEGINS
McConnell moved to stave off defections in his conference by sending a letter to Republican senators late Friday urging them to "keep your powder dry" and not "prematurely lock yourselves into a position you may later regret."
At least two Republicans, Sen. Susan Collins of Maine and Sen. Lisa Murkowski of Alaska, have made clear that they would not support jamming through a nominee so close to a presidential election, meaning McConnell, with a 53-47 majority and Vice President Mike Pence as a tiebreaker, could afford to lose only one more.
But some Republicans -- like Sen. Ted Cruz of Texas -- want a quick vote, arguing that a potentially messy pandemic election with the president already challenging the legitimacy of mail-in voting could wind up at the Supreme Court much as the 2000 election did. A short-handed eight-member court could deadlock at 4-4 if Chief Justice John Roberts sided with the three remaining liberals, as he has on a few occasions.
"We cannot have Election Day come and go with a 4-4 court," Cruz said Friday night on Fox News. "A 4-4 court that is equally divided cannot decide anything. And I think we risk a constitutional crisis if we do not have a nine-justice Supreme Court, particularly when there is such a risk of a contested election."
No vacancy at the Supreme Court occurring so close to a presidential election in U.S. history has been filled by Senate vote before the election. The closest came in 1916 when Chief Justice Charles Evans Hughes resigned 150 days before the election to run as the Republican candidate, and his successor was confirmed before the balloting.
When a retirement opened up a seat right before the 1956 election, President Dwight D. Eisenhower filled it with a recess appointment, reaching across the aisle to install a Democrat, William J. Brennan. After winning a second term, Eisenhower formally nominated Brennan for the lifetime position. The recess appointment was not controversial at the time, and Brennan was eventually confirmed with almost no opposition.
For today's partisans, the more memorable precedent was Justice Antonin Scalia's death in February 2016, which came 269 days before the election. McConnell blocked former President Barack Obama from filling the seat with his nominee, Judge Merrick B. Garland, arguing that it was too close to the election.
"The American people should have a voice in the selection of their next Supreme Court justice," McConnell said in a statement released after Scalia's death. "Therefore, this vacancy should not be filled until we have a new president."
Democratic presidential nominee Joe Biden was quick with a reminder. "This was the position that the Republican Senate took in 2016, when there were nearly nine months before the election," Biden said. "That is the position the United States Senate must take now, when the election is less than two months away."
McConnell later amended his rationale, saying it was not just proximity to the election that justified blocking a nominee but the fact that the president and the Senate majority at the time were held by opposite parties.
DEMOCRATS ADAMANT
Senate Democrats held a conference call Saturday to plot strategy, and Sen. Charles Schumer of New York, the party leader, warned of possible retaliation if the Republicans forced through a confirmation.
"Let me be clear," he told his fellow senators, according to a person on the call. "If Leader McConnell and Senate Republicans move forward with this, then nothing is off the table for next year. Nothing is off the table."
Some Democrats have argued that if they take control of the Senate, they should consider eliminating the filibuster used by the minority party to block legislation and potentially even add seats to the Supreme Court to offset what they consider Trump's illegitimate appointments. The number of seats on the Supreme Court is set by law, not the Constitution, and has shifted over the years, but the last time a president tried packing the court by expanding it, Franklin D. Roosevelt suffered one of his biggest legislative defeats.
Either way, Democrats wasted little time mobilizing their supporters and issuing fundraising appeals after Ginsburg's death.
"We cannot let them win this fight," Sen. Kamala Harris of California, the party's vice presidential nominee, wrote in an email. "Millions of Americans are counting on us to stand up, right now, and fight like hell to protect the Supreme Court -- not just for today, but for generations to come."
Trump's campaign likewise moved to seize advantage on the issue, issuing a statement challenging Biden: "Where's your Supreme Court list?" Much as he did in 2016, Trump this month released a list of more than 40 potential candidates he would consider if a Supreme Court vacancy occurred. Biden has not released such a list.
In 2016, Sen. Lindsey Graham, R-S.C., helped block consideration of Obama's choice, and said he would do the same if a Republican president had a vacancy in the last year of his first term, "and you could use my words against me and you'd be absolutely right." In 2018, he reaffirmed that, saying that "we'll wait to the next election" if an opening occurred in the last year of Trump's term.
On Saturday, however, Graham said he had changed positions for two reasons: because Democrats eliminated the filibuster for circuit court appointments, and because Democrats "conspired to destroy the life of Brett Kavanaugh" when he was nominated to the Supreme Court two years ago.
"In light of these two events, I will support President @realDonaldTrump in any effort to move forward regarding the recent vacancy created by the passing of Justice Ginsburg," Graham wrote on Twitter.
COURT ALREADY CHANGED
Ginsburg's death might be felt immediately. The court is considering a Trump administration request to reimpose restrictions on medication abortions that a judge relaxed during the pandemic.
But Ginsburg's death likely will be a factor in the court's docket in the term that begins Oct. 5 -- another challenge to the Patient Protection and Affordable Care Act is scheduled for after the election, and Ginsburg was a member of the majorities that twice turned back such challenges.
A successful nomination could give conservatives a 6-3 majority. Recent liberal victories at the court on issues such as gay rights, abortion and affirmative action have come because the four liberals were able to attract one conservative justice to join them.
Last term, that justice most often was Roberts. A conservative chosen by former President George W. Bush, Roberts has shown he is willing to put aside personal inclinations to enhance the court's reputation as a more incrementalist and nonpartisan body.
Most famously, he found a way to uphold the Affordable Care Act in 2012 against constitutional challenge, earning criticism from conservatives.
In the last term, he used his position in the middle -- with four justices more conservative and four more liberal -- to guide the court to a mix of outcomes. He joined the liberals to strike down a restrictive Louisiana abortion law and to stop the Trump administration from pulling protections for hundreds of thousands of migrants who had been brought to the United States illegally as children.
He wrote both of the opinions rejecting Trump's claims of immunity from a New York prosecutor and congressional committees for his personal financial records.
But the addition of a more conservative justice will shift that middle position elsewhere, perhaps to Kavanaugh.
Just after the election, the court will hear a case involving foster-care services in Philadelphia that involves the scope of religious exemptions to discrimination laws that protect gay couples. In the Affordable Care Act case, the administration is asking the court to strike down the entire law after a lower court's ruling.
With early voting underway in five states and Election Day just over six weeks away, Democrats and Republicans were largely unified in praising Ginsburg. But strategists in both parties also seized on the moment to find an advantage.
Facing the prospect of losing both the White House and the Senate, some Republicans view the Supreme Court vacancy as an avenue for Trump to galvanize supporters beyond his most loyal core of supporters.
"It's hard to see how this doesn't help Trump politically," said veteran Republican strategist Alex Conant. "Biden wants this election to be a referendum on Trump. Now it's going to be a referendum on whoever he nominates to the Supreme Court."
But some Democrats said the political environment is already overheated, with partisan divides over everything from wearing a mask to curb the pandemic to addressing climate change. Ginsburg's death, they say, may not change that.
"It's already pretty ugly out there," said Megan Jones, a Democratic strategist who worked for former Senate Majority Leader Harry Reid. "I do not know how this does not become a fight of epic proportions."
Information for this article was contributed by Peter Baker and Maggie Haberman of The New York Times; by Jonathan Lemire, Lisa Mascaro, Steve Peoples, Darlene Superville, Alexandra Jaffe and Bryan Anderson of The Associated Press; and by Robert Barnes, Seung Min Kim, Josh Dawsey, Michael Miller and Clarence Williams of The Washington Post.