If Democrat Mark Kelly wins this year’s Arizona Senate race, he could be sworn in and vote on a nominee to replace late Supreme Court Justice Ruth Bader Ginsburg before Inauguration Day.
Kelly, a former NASA astronaut and the husband of former Arizona Rep. Gabby Giffords, is in a tight contest with Republican Sen. Martha McSally, who was appointed to replace John Kyl, occupying the seat in an interim role following the death of Republican Sen. John McCain. The upcoming election between McSally and Kelly, which will be held on Election Day, Nov. 3, is technically a special election.
Senate Majority Leader Mitch McConnell announced that the Senate will vote on President Trump’s nominee, if he is to put one up. In a tweet on Saturday, Trump indicated that he would nominate a replacement for the late justice soon.
Two election-law attorneys told the Arizona Republic that if Kelly were to win, state law dictates that a final canvass of ballots needs to be completed by the end of November, and he could be eligible to be sworn in as soon as Nov. 30. If that were to happen, it would narrow the Republican majority in the Senate from 53-to-47 to 52-to-48 (there are currently 45 seats held by Democrats and two by independents who caucus with them).
“Everything in statute suggests it happens very quickly after the election results are finalized,” said Mary O’Grady, a Democratic election lawyer.
What is not clear is if it is possible for Senate Majority Leader Mitch McConnell or Arizona Gov. Doug Ducey to delay Kelly’s entry into the Senate during a lame-duck session.
As of now, four Republicans would be needed to block Trump’s appointment; if Kelly were to be seated, only three would have to defect to do so. Republican Sens. Lisa Murkowski of Alaska, Mitt Romney of Utah, and Susan Collins of Maine are lawmakers who have been closely eyed since Ginsburg’s death on Friday.
Collins, who is facing a fierce battle for reelection, is the only one to say, so far, that she wants to wait on a confirmation vote. “I do not believe that the Senate should vote on the nominee prior to the election. … The decision on a lifetime appointment to the Supreme Court should be made by the president who is elected on November 3rd,” she said on Saturday.
Murkowski told Alaska Public Media on Friday, shortly before Ginsburg died, that she would not support confirming a Supreme Court nominee prior to the election. She cited McConnell’s precedent of delaying the 2016 nomination of Merrick Garland by then-President Barack Obama.
“That was too close to an election, and that the people needed to decide,” Murkowski said of McConnell’s argument back in 2016. “That the closer you get to an election, that argument becomes even more important.”
Romney, a centrist who cast the lone Republican vote against Trump during his impeachment trial, has not yet revealed what course of action he plans to take.
If Kelly wins and is seated for a lame-duck session of Congress and if three GOP senators defect, it would prevent a Trump nominee from clearing the nomination process. If Kelly is not seated and all three still decide to break rank, the Senate would be locked in a 50-50 tie in which Vice President Mike Pence would presumably cast the tie-breaking vote.
Recent polling out of Arizona shows Kelly leading McSally. A RealClearPolitics average of polls has him leading the incumbent senator by a 6.7-point margin.
