NOTICE: This article was written mid-afternoon on Saturday September 19, 2020. The speculation is obvious and was based on information available at that time.
The Supreme Court announced the passing of Associate Justice Ruth Bader Ginsburg at 7:28 pm on Friday evening. At 8:51pm Friday evening Republican Senate Majority Leader Mitch McConnell issues a statement that read in part, “President Trump’s nominee will receive a vote on the floor of the United States Senate.” Those are the facts. So it’s game on.
In the interim between the announcements I assumed McConnell would prove his hypocrisy and go full steam ahead to replace Ginsburg instead of staying consistent with what has become known as the McConnell Doctrine and let the winner of the 2020 election nominate the next Justice. The only thing I thought might hold him back was if he calculated that moving immediately would be to his political disadvantage. Before 9pm Friday night I knew the answer to that question. Was McConnell – who I consider evil but politically astute – correct? Time will tell.
Considering that Vice President Mike Pence will do anything Trump orders him to and the nominee will be Trump’s, all McConnell needs is 50 votes in the Senate for confirmation. In reality it doesn’t even matter if the Senate Judiciary Committee –which is chaired by Republican Lindsey Graham of South Carolina and whose majority is Republican – recommends the nominee or not. Mitch can still put that name on the floor for confirmation.
If you think past statements by the likes of Graham and Chuck Grassley of Iowa mean anything please go tend to those unicorns on your front lawn. Alaska’s Lisa Murkowski made a carefully worded statement hours before the announcement in which she said she would not vote for a nominee prior to the election. I take Republican Senator Murkowski at her word; exactly at her word. The period that really concerns me is the lame duck session. With one possible exception the Senate will remain the same until the new Congress is seated. McConnell will have 52 or 53 Republicans in his caucus. The one in question is Arizona’s Martha McSally. She is in a special election and if Democrat Mark Kelly beats her he could be seated as early as November 30th. (Thanks Michelle Goldberg for doing the legwork on that tidbit.) Kelly (the likely winner in November – but nothing is over until it is over and don’t discount lawsuits and shenanigans in Arizona) would certainly not vote to confirm but after the election Murkowski comes back into play for Mitch. While McConnell has the numbers his margin for error gets pretty slim.
For the record there is also another special senate election in Georgia but with Georgia’s remnant of Jim Crow 50% law I’m expecting a runoff and Republican Kelly Loeffler to still be in place until its results after the first of the year.
There are a bunch of vulnerable Republican Senators running in November that may not want to risk voting to replace Ginsburg before the polls are closed. Regardless of whether they win or lose they will be much more likely to do as Mitch tells them after the election is over.
There are a couple of retiring Republican Senators who I don’t expect to suddenly “get religion”. They may be looking for jobs, including lobbying jobs and/or jobs for their kids and desire to stay in the party leadership’s good graces. After the election it will be much easier for Mitch to “incentivize” both groups.
Another wild card is Utah’s Mitt Romney who has proven to be the only Republican willing to defy Trump and remain in the Senate. In part that speaks to Romney’s moral character. To another degree it is simple politics. Unlike Trump, Romney has proven that he is extremely wealthy and he is much more popular in Utah than Trump will ever be in that deep red state. Romney breaking ranks on principle is very likely.
I expect the nominee to be ready to go after Election Day, most likely with the Judiciary Committee hearing concluded because the window of opportunity may not close at the end of the session but with the seating of Kelly. Remember the outcome of the Committee’s hearing really doesn’t matter. I expect the Senate’s confirmation vote to be the first order of business when it is reconvened after Election Day. This is something the Republicans have been working for since the Reagan administration and they will not let the opportunity pass without giving it their best effort. Nation, laws, citizens, norms and morals be damned.
Let’s assume the worst case scenario and whatever nominee the Federalist Society tells Trump to nominate is confirmed. The Ted Cruz, Tom Cotton, Josh Hawley thing was another meaningless Trump rant; although I found it interesting that he failed to mention Mike Lee. Before I continue let me point out one difference between this nominee and Trump’s two previous ones. Unless Trump somehow convinces him to come back for a temporary assignment (that could happen) there is no Don McGahn to get this nominee through and that is a bigger deal than most people would think. Unlike Trump, McGahn is actually widely respected on Capitol Hill.
Assuming Joe Biden wins and the Democrats take control of the next Senate (two likely but far from guaranteed outcomes) I have two possible courses of action to consider.
The more likely is that the Democrats could simply “pack the Court” by creating and filling at least four more seats to put the assumptive six Republican Justices in the minority. The Constitution created the Supreme Court but it does not specify how many justices sit on it. I admit to being somewhat of a traditionalist when it comes to the Constitution and the Senate but I don’t like that option on several fronts not the least of which is when the Republican take back control of both the White House and the Senate what is to stop them from doing the same thing? Eventually court packing could evolve into a Court that would need an NBA arena to hold its sessions in.
The other is to impeach and remove Brett Kavanaugh. We know from open source reporting that Kavanaugh lied to Congress on several occasions. Here is a reality check. It will take 67 Senate votes to remove him from the bench. With a 50-50 or slightly Democratic Senate where are those votes coming from? Don’t expect the 2020 election to make Washington less polarized.
When looking at the timetable here is another constraint to consider. The Electoral College (which actually elects the President and Vice President) meets on December 14th. I certainly expect lawsuits unless it is a Biden blowout win. Trump will want a Justice who will be loyal to him seated prior to that.
If Trump recognizes his defeat and/or the Republicans lose control of the Senate (especially in the unlikely but very possible event that McConnell is defeated in November) I see the Republicans turning the lame duck session into a scorched earth session.
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