Jurisprudence

McConnell Already Seems to Have the Votes

McConnell's eyes look pretty dead. He's wearing a blue mask and slightly darker blue suit.
Majority Leader Mitch McConnell walks to the House Chamber at the U.S. Capitol on Monday. Nicholas Kamm/Getty Images

It appears that Senate Majority Leader Mitch McConnell will win again. As of Monday, he almost certainly has the votes that he needs to go back on the precedent he set in 2016 about refusing to seat Supreme Court justices in an election year and build upon the Supreme Court he’s been intent on creating ever since he stole Merrick Garland’s seat four years ago.

President Donald Trump is planning to name his nominee to be Ginsburg’s replacement at the end of this week. The power grab, coming six weeks before an election that will decide the next president, contradicts McConnell and Trump’s position four years ago that the voters needed to decide Justice Antonin Scalia’s replacement at the ballot box. Scalia’s seat sat open for more than a year after McConnell blockaded D.C. Circuit Court Chief Judge Merrick Garland from receiving a hearing. With a 6–3 conservative majority once the new nominee is confirmed, Scalia’s replacement Neil Gorsuch will likely soon be the middle justice in a hard-right bench.

It took just three days after Ginsburg’s death on Friday for McConnell to appear to secure the votes he needs to go forward with the shameless maneuver. Republicans control 53 seats in the Senate and a tie is broken by Vice President Mike Pence, so McConnell could lose three seats and still have enough votes to push through the nomination. Over the weekend, Sens. Lisa Murkowski of Alaska and Susan Collins of Maine said that it was only fair to hold to the 2016 precedent and allow the winner of November’s election to fill the seat, while Sen. Mitt Romney of Utah has been coy about what he will do. Which meant that McConnell likely needs to keep the rest of his conference together.

Earlier on Monday, the New York Times put the focus on a trio of senators in a piece headlined “All Eyes on Romney, Grassley and Gardner as Supreme Court Confirmation Fight Looms Over the Senate.” By Monday evening, though, two of those senators had confirmed they would support moving forward with Trump’s nomination when Chuck Grassley of Iowa and Cory Gardner of Colorado announced they’d take up the president’s pick. Grassley was chairman of the Senate Judiciary Committee when it spent 11 months refusing to even hold a hearing on Garland’s nomination by President Barack Obama, and at the time he pledged he would do the same should the same situation arise in 2020. (As recently as July, Grassley said he would advise against holding a hearing for a nomination made before Nov. 3.) Current Senate Judiciary Committee Chairman Lindsey Graham of South Carolina, who repeatedly made the same pledge after backing McConnell’s blockade four years ago, over the weekend announced he was breaking that promise and supporting the nomination to go forward.

Graham is currently locked in a fight for his political life with Democrat Jaime Harrison, who was tied with Graham in a recent Quinnipiac poll and whose fundraising has surged in recent days. Gardner is also facing a very tough reelection fight in Colorado, as is Montana Sen. Steve Daines who also announced his support for moving forward with the nomination. Sen. Joni Ernst of Iowa, also facing a highly competitive Senate challenge, said she would proceed with the nomination process, as did Sen. Thom Tillis, who trails in most polls in his North Carolina race. Ernst and Tillis were both vocal proponents of blocking Garland. Indeed, four years ago, Tillis said: “It is essential to the institution of the Senate and to the very health of our republic to not launch our nation into a partisan, divisive confirmation battle during the very same time the American people are casting their ballots to elect our next president.”

Sen. Martha McSally, who has trailed badly in most polls of her race in Arizona, also quickly came out in favor of moving a nominee forward. Georgia Sens. Kelly Loeffler and David Perdue, both facing election this year, also supported the move, as did Sen. Cindy Hyde-Smith who is facing a surprisingly strong challenge in deep-red Mississippi.

As for potentially vulnerable Republican incumbents who would be up for reelection in 2022, Sens. Rob Portman of Ohio, Marco Rubio of Florida, and Ron Johnson of Wisconsin have closed ranks to support the nomination moving forward.

Of the 16 senators who have yet to declare their support one way or the other, according to a tracker by the Washington Post, many are very vocal conservatives in extremely red states who seem exceedingly likely to support the nomination. The two possible exceptions are Sen. Pat Toomey of Pennsylvania and Richard Burr of North Carolina, the latter of whom is retiring and the former of whom is up for reelection in a purple state in 2022 but has been a steady vote for McConnell in the past. They have repeatedly backed McConnell in other tight votes in the past and should both be expected to come around.

In the past four years, these sorts of battles over hugely consequential Senate votes—whether the failed votes over repealing the Affordable Care Act or the successful votes to seat Brett Kavanaugh after he was accused of sexual assault and to block witnesses at Trump’s impeachment trial—have had some built-in drama around them.

With so much at stake this time—such as the ability to repeal protections for patients with preexisting conditions, kill Roe v. Wade and criminalize abortion in Georgia and elsewhere, and possibly throw out key ballots in November’s election—it appears very much this time to be a foregone conclusion.

Sept. 21, 2020, 10:15 p.m.: This post has been updated for clarity.