Yuri Gripas/Abaca/Sipa via AP Images
Mitch McConnell will decide when the replacement for Ruth Bader Ginsburg will get a vote.
Mitch McConnell is a pure political animal and he always chooses what he believes to be the most politically advantageous decision, no matter what the circumstances. He looks at what can aggrandize the most power to conservatives and makes his choices on that basis.
In the situation of the death of Ruth Bader Ginsburg, McConnell will ask himself how he can ensure that the Republicans retain their Senate majority, and confirm one more Republican Supreme Court justice to entrench conservative power. The answer will likely go something like this, regardless of McConnell’s statement on Friday night: He will state that there will be no vote on a replacement justice until after the election. He will not say that the victor of the election will be the person who gets to appoint Ginsburg’s successor.
We can also count on President Trump to name his choice for a replacement (Amy Coney Barrett is likely) within a week or so. McConnell will commit to moving along the process—but not to holding the final vote before Election Day.
This would satisfy his various goals. His Republican colleagues who are facing possible repudiation at the polls—Maine’s Susan Collins and Colorado’s Cory Gardner, in particular—want no part of having to vote for a Supreme Court nominee before the election. Lisa Murkowski (R-AK) said, hours before Ginsburg died, that she would not vote until after the election; Mitt Romney (R-UT) has reportedly decided to promise this as well. Others, like Thom Tillis in North Carolina or Joni Ernst in Iowa, might want to appeal to social conservatives by holding the vote early (Ernst sent a fundraising email about the Supreme Court minutes after the death announcement). But setting things up with an Election Day cliffhanger will energize those socially conservative voters. If the intimation is that their vote is critical to secure a 6-3 position on the Supreme Court, you will see right-wing enthusiasm fly through the roof.
But there’s an offsetting dynamic to Ginsburg’s death: Democrats can claim, with far more credibility than they have before, that a Court with six hard-right conservative justices could very well decide to repeal Roe v. Wade. While decades of polling has shown that abortion is an issue that mobilizes its opponents far more than those who favor abortion rights, Joe Biden and the Democrats are likely to solidify and perhaps even expand their support among swing women voters—particularly, but not limited to, college graduates and middle- and upper-middle-class suburbanites—who for the first time will seriously face the prospect of Roe’s reversal.
All the more reason for McConnell to delay the vote until after the election.
Come what may, McConnell will fill the seat if his Republican colleagues stick with him. He won’t let cries of “Merrick Garland” get in his way. But the smartest and most cynical move, and therefore McConnell’s move, will be to leave it open, hold the election, and then fill the vacancy in the lame-duck session. That way, he can get the juice of increased social-conservative turnout on Election Day without having to sacrifice Collins and Gardner in the process. There will be no real way for Democrats to stop that from happening.
The only residual question would be whether Collins, Gardner, and anyone else who loses re-election will come back and vote for the nominee. The answer is, they likely will. The right-wing employment machine for former legislators is powerful enough to sway these loyal soldiers to give the Republicans a lock on the Court, potentially for decades. And even if Murkowski, Collins, and Gardner were to vote against Trump’s pick, Republicans would still have enough votes to confirm, what with Vice President Mike Pence providing the decisive 51st vote.
With this scenario locked and loaded, the only question will be the Democratic response, assuming they are lucky enough to have an opportunity to offer one in 2021. The notion that the Court needs to be fundamentally restructured would have been somewhat easier to pull off had Ginsburg died during the lame-duck session, compelling Trump and McConnell to move the nomination even after they’ve been rejected at the polls.
But Democrats won’t forget that McConnell held open Antonin Scalia’s seat for Barack Obama’s final year as president, and refused even to hold hearings on Obama’s nominee, Merrick Garland. The Democratic rank and file will demand that Biden, if elected, and their Senate majority, if elected, do what is their constitutional right, and increase the number of Supreme Court justices.
If Trump and McConnell get their appointment confirmed, the Democrats would need four additional members to alter the ideological balance of power on the Court. Alternatively, we could see a complete restructuring by, for instance, establishing fixed, 18-year terms for the justices, which wouldn’t leave these shifts in power up to the whims of fate. Another option would be establishing more of an appeals court framework, with dozens of potential judges in a pool, from which a handful are chosen to sit on a particular case.
Whatever the format, court reform is now the number one issue in the election, or at least it should be. That means that Joe Biden is going to have to take a stand on court-packing, at the latest by the first debate on September 29.
Mitch McConnell will absolutely play hardball with this selection, because that’s the way he understands politics. The only questions are whether the Democrats will follow suit—and how this issue will affect November’s elections.
