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A Supreme Court confirmation before Election Day would be quick, but not unprecedented

President Donald Trump is expected to nominate Judge Amy Coney Barrett to the Supreme Court on Saturday, sources familiar with the matter told NBC News. After that begins the battle over her confirmation. 

Trump has repeatedly pressed for a vote ahead of Election Day, which this year is Nov. 3. Trump has said that he wants a full court in case the election is contested, which lawyers warn looks increasingly likely, given the onslaught of Covid-19 related voting litigation. 

Looking at recent history, a confirmation ahead of Election Day looks possible, if speedy. There are just 39 days until the last voters head to the polls.

Going back to the administration of President Gerald Ford, only two justices have been successfully confirmed in such a short period, Justices John Paul Stevens and Sandra Day O’Connor. O’Connor, the more recent of the two, was confirmed nearly 30 years ago, and both of those justices were confirmed unanimously. That situation is unlikely this year. 

Senate Majority Leader Mitch McConnell, R-Ky., has said the Senate has plenty of time. During a speech from the Senate floor on Monday, McConnell said that Stevens’ whole confirmation process, which took just 19 days, “could have been played out twice between now and Nov. 3, with time to spare.”

That is true. But no justice currently on the court was confirmed so quickly. As the Supreme Court has increasingly been seen as a political prize, fights over its members have grown more contentious — and longer. Justice Brett Kavanaugh, who was dogged by allegations of sexual misconduct that he denied, took 88 days to confirm, despite Republican control of the Senate. 

Still, McConnell appears to have cleared his first hurdle. After Ginsburg’s death on Friday at 87, it was reported that the liberal justice issued a statement in her final days expressing her wish not to be replaced until after the election is held. In the following days, two GOP senators, Susan Collins of Maine and Lisa Murkowski of Alaska, both came out against a pre-election vote. 

But other moderate Republicans declined to follow them. After Sen. Mitt Romney of Utah said that he supported holding a vote, it appeared that McConnell had the votes he needed. Republicans hold 53 of the 100 seats in the Senate.

If McConnell does not manage to pull off a vote before Election Day, a vote by the end of the year appears to be well within reach. Going back to 1975, it has taken about 67 days on average for an associate justice to be confirmed after being nominated. Sixty-seven days from Saturday is Dec. 2. 

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