This has been updated.
A handful of Republican senators can prevent this; it would take just four votes. For a few senators, refusing to confirm a nominee might just help save their jobs, and with it, the Republican Senate majority. For others, it would be the principled, even patriotic, thing to do.
Senate Republicans’ weak-kneed performance during the Trump administration doesn’t offer much grounds for hope, but everything must be done to put maximum pressure on them to stop the precipitous confirmation of whatever nominee President Trump submits.
“My most fervent wish is that I will not be replaced until a new president is installed,” Ginsburg told her granddaughter in a note dictated just before her death.
Here, with some hesitation, I must pause to observe that this catastrophe could have been averted by Ginsburg herself. The justice chose not to retire before the end of President Barack Obama’s second term and bristled at suggestions that she ought to do so, in case. As it turned out, Ginsburg’s bet that Hillary Clinton would be elected, and that her successor could be named by the first female president, was disastrously wrong.
Senate Majority Leader Mitch McConnell (R-Ky.) doesn’t give a fig for Ginsburg’s fervent wishes. Neither does Trump. They are bent on one thing: seizing the chance to further entrench the court’s conservative majority.
McConnell made this clear months ago, when he announced, in effect, that Merrick Garland was then, and this is now. Garland, of course, was nominated to fill the seat of Justice Antonin Scalia, who died nine months before the 2016 presidential election. That was too close, McConnell brashly proclaimed, to even consider a nomination. “The American people should have a voice in the selection of their next Supreme Court Justice,” McConnell said. “Therefore, this vacancy should not be filled until we have a new president.”
This was outrageous. It was unprecedented. The notion that there was some kind of “Joe Biden rule” against confirming nominees in a presidential election year, dating from Biden’s tenure as chairman of the Senate Judiciary Committee, was a crock. No matter. McConnell engineered his blockade, kept his members in line and stole the seat.
Flash forward four-plus years. Ginsburg died 45 days before the election — and it took McConnell just a few hours to proclaim: “President Trump’s nominee will receive a vote on the floor of the United States Senate.”
Trump chimed in Saturday morning. McConnell had already made clear that he intended to proceed if a vacancy arose. The spurious distinction was that the Scalia vacancy arose with a president and a Senate majority of opposing parties; now, Republicans control both the White House and Senate. Hypocrisy has never been even a speed bump for McConnell.
How much hypocrisy? Consider Sen. Lindsey O. Graham of South Carolina four years ago: “I want you to use my words against me: If there’s a Republican president in 2016 and a vacancy occurs in the last year of the first term, you can say Lindsey Graham said, ‘Let’s let the next president, whoever it might be, make that nomination.’” Consider Graham in 2018: “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.”
Predictably, Graham reversed course on Saturday — blaming Democrats for eliminating the filibuster (for lower court judges, in 2013) and for conspiring “to destroy the life of Brett Kavanaugh and hold that seat open.” Consequently, Graham said, he would back Trump “in any effort to move forward” to fill the Ginsburg seat.
There were two notable omissions in McConnell’s statement, though. It stopped short of predicting confirmation and promised only a vote. And it said nothing about the timing, whether before the election, or in a lame-duck session, when the outcome is known.
It’s possible, then, that enough Republican senators will develop enough spine to stop the Trump-McConnell juggernaut. Sen. Lisa Murkowski (Alaska) has already said she would not vote for a justice before the election, and Sen. Susan Collins (Maine) said Saturday that “the decision on a lifetime appointment … should be made by the President who is elected on November 3rd.” Collins and several other Republicans facing tough reelection fights could be signing their political death warrants by casting such a vote. Utah’s Mitt Romney has demonstrated his willingness to stand up to Trump. And retiring senators such as Tennessee’s Lamar Alexander and Kansas’s Pat Roberts, who care about the institution, might balk.
Here’s one factoid they ought to consider: Since 1975, according to Congressional Research Service data, the average time it has taken to vote on a justice, from nomination to Senate vote, has been 71 days. To remind, on the day of Ginsburg’s death, the election was just 45 days away.
Muscling through a nominee in such a short time would be a disaster. The vacancy is going to be a galvanizing issue in the election, as it should be, but a rammed-through nominee would unleash understandable Democratic fury. It would make a mockery of the Senate, and the constitutional role of “advice and consent.”
A vote during the post-election lame-duck session, if Trump loses or the Senate changes hands, would be similarly inflaming. If a nominee goes through, Biden is elected and Democrats take the Senate, it would be impossible to resist the inevitable Democratic calls to expand the size of the court by two or more justices.
Under ordinary circumstances I would consider such court-packing unwise. Under the circumstances of two stolen seats, I would be hard-pressed to argue against it, and against the court-expanding arms race that would unleash.
For the good of the country, don’t fill this vacancy.
Ruth Bader Ginsburg’s death and succession
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Complete coverage: Justice Ruth Bader Ginsburg dies at 87