By Max B.
Update (10:50 AM — Sunday): Today, the successful confirmation of President Trump’s choice to replace the late Justice Ruth Bader Ginsburg, who died of pancreatic cancer on Friday afternoon, became less of a forgone conclusion as Sen. Lisa Murkowski (R-Alaska) stated her opposition to proceeding to confirm President Trump’s nominee for the Supreme Court. Four Republicans, or five, if Democrat Joe Manchin (West Virginia) supports the nominee, would need to vote no for the confirmation to fail. Murkowski and Susan Collins (Maine) are the only Republican defectors thus far, however more may follow. That said, several Republicans facing difficult reelection bids, Thom Tillis (North Carolina), Martha McSally (Arizona), and Joni Ernst (Iowa), have stated that they do support move forward with the nomination, suggesting that Senate Republicans are willing to deliver this confirmation for Pres. Trump even if it costs them their seats. At this juncture, the two most critical swing votes will be those of Mitt Romney (R-Utah) and Joe Manchin (D-West Virginia). If both state their intention to vote no, the nomination will be deadlocked until the end of the congressional term. If Democrats win a majority in the Senate and the presidency on November 3rd with the confirmation still deadlocked, barring an unprecedented confirmation in the Senate’s lame-duck session, they would be able to replace Justice Ginsburg with another liberal jurist.
Update (4:15 PM — Saturday): President Trump intends to nominate a replacement for Justice Ginsburg this week, and has indicated that his nominee is “most likely” to be a woman. Amy Coney Barrett, a judge on the Seventh Circuit, is considered to be the most likely candidate to fill Justice Ginsburg’s seat. A mentee and clerk of the late Justice Antonin Scalia, who was fast friends with Justice Ginsburg despite their drastically different judicial philosophies, Barrett is a strict textualist, and would be one of the most conservative justices on the Supreme Court if nominated and confirmed. In 2018, Barrett was one of the finalists on President Trump’s list of potential nominees to replace the retiring Justice Anthony Kennedy. Due to her lack of experience, Barrett, who had been on the federal bench for less than a year at the time, was passed over in favor of Brett Kavanaugh, but the President holds her in high regard. After selecting Kavanugh in 2018, the President allegedly remarked that he was “saving” Justice Ginsburg’s seat for Barrett in the event that Ginsburg died or retired while President Trump was in office.
Senate Republicans will be able to lose up to three votes in the confirmation process for Ginsburg’s successor. Sen. Susan Collins (R-Maine) has already stated that she believes the next President should chose Ginsburg’s replacement. Collins faces a difficult reelection contest this year against former State House Speaker Sara Gideon (D); a significant point of contention in the campaign has been Sen. Collins’ 2018 vote to confirm Brett Kavanaugh to the Supreme Court, which Gideon says demonstrates that Collins is not the moderate she purports to be. Republicans might lose another vote in Sen. Lisa Murkowski (R-Alaska), who voted no on Brett Kavanaugh’s nomination and stated, just hours before Justice Ginsburg’s death, that she would not move to fill a Supreme Court vacancy before the election. Sen. Cory Gardner (R-Colorado) faces a very difficult reelection bid and might break ranks in an attempt to salvage his campaign, but he has a much more conservative record than Sens. Collins and Murkowski, which suggests that he is likely to support President Trump’s nominee. Sen. Martha McSally (R-Arizona) is in a similar situation and has already said that she supports proceeding with the confirmation process. Sen. Chuck Grassley (R-Iowa), who said in August that he wouldn’t support any confirmation effort this year, and Sen. Mitt Romney (R-Utah), President Trump’s only Republican critic in the Senate, are other possible Republican “no” votes. If four Republicans (most likely Romney, Murkowski, Collins, and Grassley) refuse to support the nominee, the confirmation will fail, assuming that no Democrat supports it. However, Sen. Joe Manchin (D-West Virginia), a conservative Democrat, could salvage the confirmation process for Republicans if he chooses to support President Trump’s nominee, as he has with the Presidents previous two Supreme Court picks. However, however both the Gorsuch and Kavanaugh confirmation votes occurred prior to Manchin’s 2018 reelection bid. With West Virginia being a very conservative state, it is possible that political considerations pushed him to support Gorsuch and Kavanaugh, and that without the specter of a difficult reelection bid he might have voted differently; now that he is more free to vote his conscience, with his 2018 victory behind him, it remains to be seen whether Sen. Manchin will vote differently this year. To make matters worse for Democrats, Sen. Grassley has a conservative record and hails from Iowa, an increasingly conservative state, making the possibility of his voting against confirming President Trump’s nominee a very faint possibility. It is beginning to seem increasingly likely that President Trump will finish his first term with a 6-3 conservative majority on the Supreme Court as his greatest accomplishment.
Update (11:00 PM — Friday): Senate Majority Leader Mitch McConnell (R-Kentucky) has stated that he intends to move forward with confirmation hearings for President Trump’s nominee to replace Justice Ginsburg, should he name one. With the new (circa 2017) Senate rules allowing Supreme Court nominees to be confirmed with a simple majority, which Republicans currently hold, Justice Ginsburg’s replacement with a conservative jurist is all but guaranteed, giving the Court a conservative majority for the foreseeable future.
Sen. McConnell’s pledge to move forward with the confirmation process in the final months of President Trump’s first term stands in sharp contrast to his refusal to hold confirmation hearings for Merrick Garland, whom President Obama appointed to the Supreme Court in 2016 with the better part of a year left in his presidency, on the grounds that the next President ought to fill the vacancy. Former Vice President Joe Biden (Delaware), the Democratic nominee for President, made a very similar assertion this evening, remarking on Twitter that “the voters should pick a President, and that President should select a successor to Justice Ginsburg.” However, in 2016, Biden took the opposite position, arguing that Merrick Garland deserved confirmation hearings. This year and in 2016, politicians of both parties have taken positions on the question of election year Supreme Court appointments that best serve their own interests, with both changing their minds on a dime.
Friday — 5:25 PM: Ruth Bader Ginsburg, an Associate Justice of the Supreme Court considered the most prolific member of the Court’s liberal wing has died of pancreatic cancer at age 87. Her death comes just 46 days before the 2020 presidential election, one that is more likely than not to lead to a change in administration, resurfacing political tensions that arose four years ago, when Justice Antonin Scalia similarly died in an election year. Republicans, who controlled the Senate when Scalia died, argued, that the next President ought to name Scalia’s replacement, refusing to hold confirmation hearings for Merrick Garland, then-President Barack Obama’s nominee. This maneuver was a shocking rejection of precedent, which dictates that the sitting President nominates a replacement justice as soon as possible. Sure enough, the Republican nominee, now-President Trump, won the 2016 election, allowing him to nominate Neil Gorsuch, a conservative judge, to the Court in 2017, securing a 5-4 conservative majority.
This year, Republicans find themselves with a Supreme Court vacancy much closer to election day than in 2016, and thus a dilemma: whether or not to break with their newly-established precedent that Supreme Court vacancies not be filled by the incumbent president when they occur in an election year. If they act consistently with their break of precedent in 2016, they will be liable to the possibility that Joe Biden will win the presidential election and appoint another liberal justice to replace Ginsburg, keeping the court at a 5-4 conservative majority. Furthermore, the possibility of a Democratically controlled Senate in the 117th Congress would eliminate Republicans’ ability to block President Biden’s nominee in this hypothetical scenario.
By contrast, if President Trump appoints a replacement for Ginsburg before the end of his first term and the Republican-controlled Senate confirms them, the President will cement his legacy of appointing conservative judges, further buttressing the conservative majority on the Supreme Court after a several cases over the summer in which Chief Justice John Roberts broke ranks, leading to a series of 5-4 verdicts against the Trump Administration. The political lucre of a new appointment very well might overpower the bad optics of hypocritically reversing their reversal of precedent.
The ball lies entirely in the Republicans’ court, for they hold both the Senate majority and the presidency. Even if Democrats object to an effort to confirm President Trump’s nominee in the Senate on the grounds that the Republicans’ blocking of Merrick Garland’s nomination in 2016 constituted the establishment of a new precedent, Senate Republicans could still invoke the “nuclear” option, confirming the nominee with a simple majority, rather than the customary 60 vote consensus. Democrats first changed the Senate’s rules to allow for confirmations of Presidential nominees in 2013, but with an exception for the Supreme Court. In 2017, Republicans eliminated that exception, and since then, both of President Trump’s Supreme Court nominees have been confirmed with fewer than 60 votes.
Correction (8:25 PM — Saturday): This article was corrected to state that Sen. Martha McSally has announced her support for replacing Justice Ginsburg before the election and updated to include Sens. Grassley and Romney on the list of possible Republican defectors.