Supreme Court Justice Ruth Bader Ginsburg died on Friday. Her passing leaves a vacancy on the court in late September of a presidential election year—seven months closer to Election Day than the vacancy that was left following the 2016 death of Justice Antonin Scalia.
Shortly after the news of that previous Supreme Court justice’s death broke, Senate Majority Leader Mitch McConnell announced that his chamber would not consider a nominee to replace Scalia until after the 2016 election. “The American people should have a voice in the selection of their next Supreme Court Justice,” he said. “Therefore, this vacancy should not be filled until we have a new President.”
This time around, McConnell announced Friday night, the American people have said enough. “President Trump’s nominee will receive a vote on the floor of the United States Senate,” the bottom line read. It was preceded by some lawyerly language interpreting the previous six years’ worth of electoral politics as proof positive that he had made the proper, fair decisions each step of the way. It’s ignorable. There was a Supreme Court seat open in 2016 that he didn’t want a Democrat to fill, so he kept it open. There is a Supreme Court seat open in 2020 that he wants a Republican to fill, so he’ll try to fill it.
In order to do so, he needs 50 Republican votes plus Vice President Mike Pence’s as a tiebreaker. This means he can only afford to lose three of his senators. He wouldn’t commit to a floor vote if he didn’t think he could get them. But he’s putting his vulnerable Republican senators in an excruciating position.
Maine Sen. Susan Collins, who’s in a difficult reelection race in major part due to her deciding vote to confirm Brett Kavanaugh to the court, told the New York Times earlier this month that she, in the Times’ words, “would not seat a Supreme Court justice in October,” and also that she would oppose seating a justice during the lame-duck session in the event of a transfer of power.
Alaska Sen. Lisa Murkowski, who is not up for reelection this cycle, told Alaska Public Media in an interview Friday—before she knew about Ginsburg’s death—that “I would not vote to confirm a Supreme Court nominee. We are 50 some days away from an election.”
That’s two on the record already.
South Carolina Sen. Lindsey Graham, who’s also up for reelection, is the chairman of the Senate Judiciary Committee. He told the Atlantic in 2018 that “if an opening comes in the last year of President Trump’s term, and the primary process has started, we’ll wait to the next election”—and then added, “hold the tape.” Here’s the tape.
Colorado Sen. Cory Gardner is up for reelection in Colorado, which is now a lean-blue state. His career may be over already. It will certainly be over if he votes to confirm a new justice before the election. Sen. Martha McSally is trailing in her race in Arizona. North Carolina Sen. Thom Tillis is narrowly trailing in his. Iowa Sen. Joni Ernst is an a tight race, while Texas Sen. John Cornyn, Montana Sen. Steve Daines, Georgia Sen. David Perdue, and, well, Kentucky Sen. Mitch McConnell all have races they can’t sleep on. For some of them, it might be useful to enthusiastically activate their state’s Republicans despite the ferocious backlash from Democrats and Democratic-leaning voters. For others it won’t. They’ll all have to figure that out immediately.
Then there’s Utah Sen. Mitt Romney. Would he go along with a straightforward power grab that would tear the country apart? Would retiring Tennessee Sen. Lamar Alexander?
What McConnell’s statement does not say is when “President Trump’s nominee will receive a vote on the floor of the United States Senate.” He left himself room, in other words, to hold the confirmation in the lame-duck session. If Trump wins reelection, that’s the ballgame anyway. If Biden wins? Lame-duck senators won’t be accountable anymore.
Democrats will be applying extraordinary pressure in the coming weeks on Republicans up for reelection in competitive races (and Mitt Romney!) to commit that they won’t vote to confirm a nominee either before the election or in the lame-duck period. Those lame-duck Republicans could always change their word after the election. Some Democrats have already begun signaling that there would be consequences to that, too: an abolition of the filibuster and an expansion of the Supreme Court if Joe Biden becomes president and Democrats take the Senate majority.
We’ve been in a slow-moving political crisis for some time. It’s about to get fast. And the only certain thing is that Mitch McConnell will say it wasn’t his fault.