In either case, McConnell is going down a path that is overwhelmingly unpopular (more than 60 percent of voters and half of Republicans want to wait until after the election, according to a Reuters-Ipsos poll). Other polling suggests the Supreme Court is now a bigger issue for Democrats than for Republicans.
To make matters even more dicey, McConnell launches forward during a time of unprecedented mourning and adulation for a justice who was an icon and inspiration to millions of women. She will be the first woman in history to lie in state in the Capitol. Think how significant that is, both as a reflection of her historical importance and as a reminder that women before Ginsburg were locked out of the halls of power. Seeing her replaced by someone devoted to ripping up Ginsburg’s legacy might be just the thing to send turnout among women and younger voters through the roof.
Republican members who vowed in 2016 to let the people decide the next president (and thereby decide what sort of justice they wanted) before filling the vacancy left by the death of Antonin Scalia are turning themselves inside out to come up with plausible excuses for a pure power grab — a perfect example of Republicans’ “heads I win, tails you lose” mentality.
Senate Judiciary Committee Chairman Lindsey O. Graham (R-S.C.) says his request from 2016 for voters to “use my words against me” when he promised that he wouldn’t confirm a justice during an election year is off because Democrats gave Justice Brett M. Kavanaugh a tough time. Huh? Sen. Charles E. Grassley said in 2018 that the rule had to be consistently applied to Democratic and Republican presidents, but now he says that does not count when the president and Senate are of the same party (that was true in 2018 as well). The Des Moines Register recapped:
It's a reversal for Grassley, who in 2016 was the face of Republican efforts to block Democratic President Barack Obama's Supreme Court nominee, Merrick Garland. He said at the time the Senate should not confirm a nominee in a presidential election year. He has since reiterated that stance, saying in a July 2018 taping of Iowa Press that he would not support confirming a Supreme Court nominee in an election year.“It was very legitimate that you can’t have one rule for Democrat presidents and another rule for Republican presidents,” he said at the time.
Oh well, so much for that.
Let’s focus on when hearings and a floor vote will actually occur. It is a mistake to conclude that when Sen. Mitt Romney (R-Utah), for example, says he will vote on the floor that he is committing to voting before the election. He is silent on that point. Conspicuously so.
If President Trump abides by his timetable and announces his pick on Saturday, we will be less than 40 days from an election in which millions will have cast their ballot before the hearings are complete and in which many Republican members are in desperate trouble and need to get back home to campaign.
Moreover, the deep dark secret for Republicans is that the extreme positions they are trying to foist on the country through the courts — repeal of Obamacare, reversal of Roe v. Wade — are hugely unpopular. Support for Roe is about 66 percent. (Slate notes: “It wasn’t just Democrats: A strong majority of independents and a plurality of Republicans said they wanted to keep Roe v. Wade around, too. As NBC News has tracked views on abortion over the past decade, support for legal abortion has risen among most measurable demographics: Women, men, Democrats, and Republicans have all grown more supportive of abortion rights, a unified trend in opinion rarely seen on such a purportedly controversial topic.”) Support for the Affordable Care Act also remains popular. (“A Fox News Poll, which interviewed 1,343 registered voters nationwide between June 13 and 16, found 56 percent had a favorable view of Obamacare. Of those 30 percent were strongly in favor and 26 percent somewhat. This was a record high for Fox News polling,” Newsweek reported.)
This is the hearing Republicans want to have weeks or just days before the election? I have doubts, especially if McConnell wants to save senators such as Susan Collins of Maine, Cory Gardner of Colorado, Martha McSally of Arizona, Thom Tillis of North Carolina and other Republicans in competitive seats. Forcing a vote for a nominee devoted to taking away things that Americans value would likely doom these senators to defeat.
Moreover, the Democratic nominee for vice president, Sen. Kamala D. Harris (D-Calif.), sits on the Judiciary Committee. Do Republicans really want to give the whip-smart, telegenic senator potentially hours of live TV coverage — watch Democrats give her their time so she can rake the nominee over the coals — during which she makes clear just how extreme Trump’s nominee is? I am going to guess the answer is no.
Let’s then consider what ramming the nominee through during the lame-duck session would look like if Democrats win the White House and the Senate majority. The outrageous power grab would not only give Democrats the high ground to expand the Supreme Court and end the filibuster (allowing admission of Washington, D.C., as a state and measures such as sweeping voting rights reform) but would also set up a new class of Republican senators, those slated to be on the ballot in blue/purple states in 2022 (e.g., Patrick J. Toomey of Pennsylvania, Ron Johnson of Wisconsin), for a thrashing. In essence, McConnell would have sacrificed two classes (2020 and 2022) of senators to get a Supreme Court seat that would have much less value after the Democrats expand the court. That does not sound like a winning game for McConnell.
The safest course for McConnell might be for Trump to name his pick and for Republicans to begin hearings. After they survey the damage post-election, they can decide if they really want to move forward with their lame-duck maneuver. By then, the consequences of such a move will be crystal clear.
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