Here’s your second chance to read my take on the thorny politics of a Supreme Court vacancy before the election — or after the election, as there’s a chance a seat will open during the lame-duck session, God help us. Chuck Grassley said two weeks ago that if he were still the chairman of the Senate Judiciary Committee, which he isn’t, he wouldn’t hold a hearing on a new nominee this close to Election Day. He’d follow the same standard as in 2016 after Antonin Scalia’s seat was vacated, allowing the voters to decide which party should fill that seat.
But that’s not the standard, you say. The standard is that voters should decide who fills the vacancy only if the White House and the Senate are controlled by different parties. When they’re controlled by the same party, the vacancy can be filled immediately. That’s the Mitch McConnell standard.
But it’s not the Chuck Grassley standard, it seems. And, importantly, not the Lisa Murkowski standard either.
Sen. Lisa Murkowski (R-Alaska) says that confirming a Trump nominee to the high court in the middle of an election year or during the lame-duck session in November and December would create a “double standard” after what happened in 2016.
“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 OK when nine months was not, that is a double standard and I don’t believe we should do it,” she said. “So I would not support it.”
The current chairman of the Judiciary Committee is Lindsey Graham. Surely the president’s golf buddy will help ram through a nomination for him if a seat opens up before November, no? Graham was noncommittal when asked about it recently:
Graham said he’d be “willing” to fill a vacancy, but cautioned: “I’d like to get input from my colleagues.”
“I don’t know. We’ll see,” he added. “I hope everybody stays healthy on the Supreme Court and we don’t have to worry about it.”
It would take four Republican no votes to block confirmation of a new nominee. Murkowski sounds like a hard no. Grassley is a soft no: Although he dislikes the idea of confirming someone this close to Election Day, no one thinks he’d be the 51st vote for Democrats to block Trump. Mitt Romney and Susan Collins were also asked by The Hill if they’d confirm a nominee this year and both ducked the question. Romney is also very likely to vote no, I think, as it’s clearer by the day that he intends to go his own way in the Senate and let the electoral chips fall where they may.
Collins would be in a terrible bind because she’s trailing in the latest poll and would be destined to alienate either her base or certain voters in the center no matter what she did about a new vacancy. Because she already went to the mat for Kavanaugh two years ago, I think she’d try to “balance” that vote by voting no this time, and maybe try to sell it to Maine Republicans as a reason to reelect her. “This vacancy makes it more important than ever to have a Republican president and a Republican Senate next year.” They’d be mad, but the prospect of getting to fill that seat would lead most to hold their noses and vote Collins anyway.
That’s three likely Republican no votes, a 50/50 tie on a new nominee. Is there a fourth anywhere in the Senate? Would Cory Gardner dare flake out on Trump in his bluish state of Colorado, knowing how doing so might conceivably help him by giving his candidacy more of an independent tinge? McConnell might even encourage it: “In recent weeks, the Senate majority leader has become so concerned over Republicans losing control of the Senate that he has signaled to vulnerable GOP senators in tough races that they could distance themselves from the President if they feel it is necessary, according to multiple senior Republicans including a source close to McConnell.”
Although *blocking* the Senate from confirming a conservative to the Supreme Court goes against every last strand of McConnell’s political DNA.
Democrats are going to try to make it easy for Grassley or Gardner or whoever else to say no by threatening consequences if they say yes. The point of ramming through a nomination before the election would be to make SCOTUS dependably conservative for a generation or more, but what if lefty outrage over it spurs Dems to undo that generational control … next year?
Kaine, the party’s last vice presidential nominee and a lawmaker with a reputation as an institutionalist, said confirming a nominee of President Donald Trump this year could compel Democrats to consider adding seats to the high court.
“If they show that they’re unwilling to respect precedent, rules and history, then they can’t feign surprise when others talk about using a statutory option that we have that’s fully constitutional in our availability,” he said. “I don’t want to do that. But if they act in such a way, they may push it to an inevitability. So they need to be careful about that.”
They’re going to pack the Court anyway, we might respond. Maybe, but Biden opposed the idea during the primaries. Even in a best-case scenario for Democrats on election night, they’re likely to have only a narrow majority in the Senate next year. They probably won’t have 50 votes for Court-packing once the red-state Dems like Joe Manchin and Kyrsten Sinema have their say. Some lefties pounding the table about packing the Court are also destined to be sated once Ginsburg and/or Breyer steps down in short order and Biden starts installing his own young nominees on the bench. I think it’s unlikely that Democrats will go thermonuclear by trying to add seats to SCOTUS, but if anything’s going to give them the political juice to try, it’s the GOP trying to squeeze through a new confirmation less than 100 days before the election.
In fact, even if a seat opened very soon, it’s reasonable to think that confirming the new justice would necessarily happen no earlier than mid-September and possibly even *October* in light of the timetable for previous nominees. Depending upon how the polling looked for a move like that, even McConnell might get cold feet about it. Imagine if it stood at, say, 35/65 while early voting was ongoing.
As for a lame-duck confirmation, I think the chances are near-zero. “If the election is over and the president is still the president, then I think it’s fair game. If there was a change in administration, obviously you got a lame-duck administration. That’s perhaps is a different scenario,” said … John Thune, the number two Republican in the Senate, to The Hill. If leadership’s not ready to cowboy up on that scenario, the backbenchers won’t do it either. That really would put Court-packing on the table as a retaliatory move by Dems, I think, more so than a pre-election confirmation in the fall would.