Following the announcement on Friday evening that the Supreme Court Justice Ruth Bader Ginsburg had died, it took just hours for the White House and the Republican leadership in Congress to signal their intention to nominate and confirm a conservative replacement before the election, on November 3rd. “Americans reelected our majority in 2016 and expanded it in 2018 because we pledged to work with President Trump and support his agenda, particularly his outstanding appointments to the federal judiciary,” the Senate Majority Leader, Mitch McConnell, said in a statement. “Once again, we will keep our promise. President Trump’s nominee will receive a vote on the floor of the United States Senate.”
Even as McConnell was issuing this declaration of intent, allies of the President were going on Fox News and preparing the ground for what is to come. “I believe the President should move next week and nominate a successor to the Court,” Senator Ted Cruz, of Texas, said to Sean Hannity. “This nomination is why Donald Trump was elected. This confirmation is why the voters voted for a Republican majority in the Senate.” Cruz went on to say that the vote in the Senate needed to be held before Election Day to insure a solid conservative majority on the Court and avoid the possibility of a tie in the event of a challenge to the election’s result. “We face a constitutional crisis if we don’t have a nine-Justice Supreme Court,” he said.
Nobody should be surprised at the shamelessness of this maneuvering. Trump doesn’t do shame, of course. Neither does McConnell. In 2016, he denied hearings or a vote to Merrick Garland, whom President Barack Obama nominated to the Court nearly nine months before Election Day, following the death of Antonin Scalia. But with Trump in the White House, McConnell has signalled all along that he would bring a Republican nominee to the Senate floor this year if a vacancy were to open shortly before the election. The fact that Ginsburg’s passing came just forty-five days before Election Day was immaterial to the conscience-free Kentucky partisan.
On a night of many sorrows, perhaps the most distressing thing of all was the manner in which the White House and its Republican allies sought to shower Ginsburg with verbal tributes even as they prepared to try to deny her deathbed wish, according to an NPR report, that she not be replaced until a new President was sworn in. Speaking to reporters after attending a campaign rally in Minnesota, Trump called Ginsburg “an amazing woman who led an amazing life.” Kayleigh McEnany, the White House press secretary, said on Fox, “She was a trailblazer for women. Tonight we honor her legacy. . . . We are praying for her. We are holding her family close to our hearts.”
Setting aside the sick bag, for a moment, at least two questions arise: Will Trump and the Republicans succeed in this heist? And what impact will it have on the election?
The answer to the first question depends on two fast-diminishing resources: the loyalty to the Democratic Party of Senator Joe Manchin, of West Virginia, and the fortitude of some supposedly moderate Republican senators, including Susan Collins, of Maine; Lisa Murkowski, of Alaska; and Mitt Romney, of Utah. With a majority of three in the upper chamber, the Republicans can afford to lose just three votes if the Democrats hold together, and if a vote on a nominee takes place before Election Day. Should the process spill into the lame-duck session, McConnell might find himself with one fewer vote to spare if the Democrat Mark Kelly, who is leading in polls in Arizona’s special election, were to defeat the Republican Martha McSally. In the final vote on the nomination of Brett Kavanaugh, in October of 2018, Manchin broke with his colleagues and voted to confirm. Murkowski, who ultimately voted “present,” was the only Republican senator to break ranks, and Kavanaugh prevailed.
Manchin praised Ginsburg on Friday night as a “voice for the voiceless,” but he didn’t say anything about a possible vote on her replacement. Earlier in the day, before Ginsburg’s death was announced, Murkowski told Alaska Public Media that she wouldn’t vote to confirm another Supreme Court Justice before next year’s Inauguration. “We are fifty-some days away from an election,” Murkowski said, in response to what was then a hypothetical question. Later in the day, she issued a statement that praised Ginsburg effusively but said no more.
Collins, who is embroiled in a tough reëlection campaign, issued a similar statement on Friday night, calling Ginsburg “a role model to generations of women.” Jonathan Martin, of the Times, said on Twitter that Collins told him last month she wouldn’t vote to seat a new Justice before the election, and would oppose confirming a Justice in the lame-duck Senate session after the election if Trump had lost. As for Romney, CNN’s Manu Raju reported that the senator would not yet issue a comment on his intentions. Romney’s communications director, meanwhile, disputed a tweet from a former Utah state senator that suggested Romney would not vote on a new Court nominee before Inauguration Day, calling it “grossly false.”
If the outlook in the Senate is as clear as mud, the immediate impact on the election campaign is more straightforward: it will supercharge activists on both sides. In 2018, the Kavanaugh hearings electrified the political world in the run-up to the midterms. Another set of hearings just weeks, or days, before a Presidential election could prove even more incendiary.
On the Democratic side, the righteous outrage at McConnell’s power play will know no bounds. If it were to succeed, conservatives would hold six seats on the Court for years to come. “Let me be clear that the voters should pick the President, and the President should pick the Justice for the Senate to consider,” Joe Biden said on Friday night. “This was the position the Republican Senate took in 2016 when there were almost ten months to go before the election. That’s the position the United States Senate must take today.”
For the White House and the Republicans, another Supreme Court fight presents an opportunity to fire up conservatives and evangelicals, especially if Trump were to nominate an opponent of abortion rights, such as Amy Coney Barrett, whom he sent to the U.S. Court of Appeals for the Seventh Circuit, in 2017. However, going down this route would risk further alienating an even bigger group of voters: women. Already facing a large gender gap in the polls, Trump can hardly afford to lose more female voters, particularly ones residing in affluent suburban districts that were once solidly Republican but have recently moved toward the Democrats.
Whomever Trump picks as his nominee, he seems certain to embrace a nomination fight as a way to distract from the coronavirus pandemic and alter the flow of other bad news that has circled around his Administration. Trump is still trailing Biden in national polls by a significant margin, and this past week saw the publication of a series of new surveys from battleground states that offered him little encouragement. The contest isn’t over—far from it. But Trump badly needs to change the course of the race. “The battle will be pitched on Monday,” Jay Sekulow, the Republican lawyer who defended the President at his impeachment trial, told Hannity. “I don’t think there is any doubt about it.”
If there were any ambiguity about Trump’s intentions, he removed it on Saturday morning, when he tweeted at his fellow-Republicans: “@GOP 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. We have this obligation, without delay!” The battle has already started.
