There is almost no doubt that McConnell will do whatever he can to fill the seat before the new Congress is seated in January — as he affirmed Friday night — especially given the stakes and Democrats’ possible Senate takeover. And he certainly has the amount of time he needs to make it happen.
The question is whether he’ll have the votes.
Republicans have an effective 53-to-47 majority in the Senate, and with the Senate having abolished the 60-vote threshold for Supreme Court justices early in Trump’s presidency, that means they can afford to lose three votes and still confirm a new justice, given Vice President Pence would break any ties. Four departures very likely means the new nominee would fail.
The calculus notably could shift significantly after Election Day, though, if Sen. Martha McSally (R) loses in Arizona — a race in which she currently trails. Given she was appointed to the seat, her replacement could be seated in November, giving Republicans just two votes to spare.
A new justice would create an effective 6-to-3 conservative majority on the Supreme Court — something conservatives might only have dreamed of when they helped elect President Trump. The enormity of that prospect will translate to huge pressure on every Republican senator to fall in line.
But they won’t do so without abandoning principles some of them once espoused. A few key votes have signaled resistance to actually pushing a nominee through either before or after the 2020 election, during the lame-duck session.
Here’s what some key players — and especially some potential holdouts — have said about this scenario.
As noted above, there is no doubt McConnell will push this through, to the extent he can. That’s despite saying in 2016, when there was a vacancy much earlier in the election cycle (February), that voters should get to pick the president who decides the nominee in such a situation.
McConnell has laid the groundwork for this for years. He has made clear the standard he set in 2016 won’t be applied to 2020, however hypocritical that is. The difference between the 2016 and 2020 election is that Obama didn’t have a Senate majority back then, and Trump does.
Lindsey O. Graham
The other GOP leader with a key role is more interesting, given his past comments. While McConnell has signaled he’d do what he said shouldn’t be done in 2016, Senate Judiciary Committee Chairman Lindsey O. Graham (R-S.C.) has repeatedly staked out a supposedly principled stand against just the kind of situation in which we find ourselves.
In 2018, when Graham was in line to take over the committee with jurisdiction over Supreme Court nominees, he said that “if an opening comes in the last year of President Trump’s term, and the primary process has started, we’ll wait till the next election.”
Graham was even more explicit in 2016, saying, “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.’ And you could use my words against me, and you’d be absolutely right.”
LINDSEY GRAHAM on March 10, 2016:— JM Rieger (@RiegerReport) September 19, 2020
“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." pic.twitter.com/DYXou0KEI8
Graham said such a standard should be applied “at least” to a two-term president, but in his opinion to any president even in their first term.
That’s extremely firm.
But Graham in May of this year offered a different take on a pre-election vacancy, arguing that such a situation in 2020 would be different than 2016 because the president’s party controls the Senate.
May 28, 2020— JM Rieger (@RiegerReport) September 19, 2020
HUGH HEWITT: [If a vacancy occurred] would successors be confirmed before the election?
LINDSEY GRAHAM: I think that would be the goal. … So if a vacancy did occur … you would see an effort by Republicans, I’m sure, to fill the vacancy. pic.twitter.com/VlfU1jnexo
Graham has clearly said that a Republican nominee would be unfair to pursue even as voters were speaking — and even invited people to accuse him of hypocrisy if he went back on it. Looming over all of that, of course, is his evolution from a top Trump critic to a chief Trump backer — which suggests Graham may evolve on this as well — as well as his own reelection campaign, which is surprisingly competitive in his red state, according to recent polls.
Update: Graham suggests he will go back on this 2016 word, retweeting more recent comments in which he suggested he’s inclined to press forward.
The Republican Alaska senator has routinely positioned herself as a tough vote for the GOP, and she happened to do so again on this particular issue even shortly before news of Ginsburg’s death.
“I would not vote to confirm a Supreme Court nominee. We are 50 some days away from an election,” she said Friday, according to Alaska Public Media.
Murkowski said of McConnell’s decision in 2016: “That was too close to an election, and that the people needed to decide,” adding that “the closer you get to an election, that argument becomes even more important.”
Alaska Public Media, notably, said Murkowski’s denial was that she’d vote to confirm a justice before the election, which doesn’t rule out a lame-duck confirmation.
But Murkowski more clearly signaled opposition to such a ploy in August, telling the Hill newspaper: “When Republicans held off Merrick Garland it was because nine months prior to the election was too close, we needed to let people decide. And I agreed to do that. If we now say that months prior to the election is okay when nine months was not, that is a double standard and I don’t believe we should do it. So I would not support it.”
Again, you can poke rhetorical holes in that about before-an-election versus lame-duck, but she suggests her principle is that the newly elected president should decide.
The Maine GOP senator, who faces a tough reelection in a blue state this year, told the New York Times earlier this month about voting for a new justice in October, “I think that’s too close. I really do.”
She also said, according to Martin, that she would oppose seating one in the lame duck if there’s a newly elected president.
So she would seem to be a confirmed holdout, barring a reversal.
The Utah GOP senator was the only Republican vote to remove Trump from office after his impeachment trial, and he has regularly taken principled stands in the face of his GOP colleagues.
It’s not yet clear where he stands on this. He told the Hill last month: “I’m not at a point where I have something to say,” and his office disputed a rumor that he had decided not to confirm a nominee before Inauguration Day.
But perhaps needless to say, if Romney is on board with a Trump nominee, the nominee would stand a very good chance. He’d be one of the first votes you’d expect the nominee would lose — probably a must-have.
Charles E. Grassley
Graham’s predecessor as Judiciary Committee chairman has also staked out a principled stand that would seem to preclude supporting a nominee in an election year.
Grassley, in defending the Garland gambit in 2018, cited precedent, saying that “it was very legitimate that you can’t have one rule for Democratic presidents and another rule for Republican presidents.”
Grassley also told NBC News last month that he “couldn’t move forward with it” if he were in charge of the Judiciary Committee like he was for Trump’s first two Supreme Court nominees.
The Colorado GOP senator said in 2016, after Justice Antonin Scalia died, that “I think we’re too close to the election. The president who is elected in November should be the one who makes this decision.”
That would sure seem to apply to this election, given we’re much closer. Gardner also faces a very tough reelection bid this year.
The Iowa senator also faces a tough reelection battle this year, and despite in 2016 promoting the idea that the new president would make that pick, she said in July that she’d support voting on a nominee — even in a lame duck.
“[If] it is a lame-duck session, I would support going ahead with any hearings that we might have,” Ernst said. “And if it comes to an appointment prior to the end of the year, I would be supportive of that.”