WASHINGTON — Senate Republicans face a critical choice on replacing the late Supreme Court Justice Ruth Bader Ginsburg — vote on her successor before Election Day, or wait until immediately afterward — when Donald Trump will still be president no matter the Nov. 3 outcome until next January.
The choice comes down to a calculation of the politics.
Senate Majority Leader Mitch McConnell on Friday promised a vote on Trump’s pick to replace the high court’s liberal icon, but he didn’t put a timetable on it. The pivotal question in coming days is whether McConnell would try to keep that promise before the November elections or hold off until a lame duck session before the transition to the new Congress.
In a letter to his Republican colleagues obtained by the Washington Post, McConnell urged them to “keep your powder dry” in responding to the press until senators return to Washington if they are unsure what to say or are inclined to oppose giving a nominee a vote.
“This is not the time to lock yourselves into a position you may later regret,” he wrote.
Trump on Friday gave no indication when he would name a nominee, who could solidify the court’s conservative majority.
The Senate would need to move faster than usual to confirm a nominee before the election 45 days from now. The average time from nomination to Senate vote — after vetting and hearings — is 69.6 days, or about 2.3 months, according to a 2018 report from the Congressional Research Service.
But McConnell in his letter said there was plenty of time. He cited Ginsburg’s nomination in 1993 which took only 50 days from the time it was announced until she was confirmed.
McConnell — who denied a confirmation hearing for President Barack Obama’s pick to fill a vacancy on the high court in 2016 because it was an election year — can force a vote anytime he has 50 senators ready to back a confirmation with Vice President Mike Pence serving as the tie breaker. He can afford to lose three Republican votes and still press ahead.
Delaying a vote until after the election could have political benefits. Republicans could use the vacancy to energize their base in some of the swing states where incumbent GOP senators are in close contests. It also would avoid a politically perilous vote for incumbent senators of their party such as Cory Gardner of Colorado and Susan Collins of Maine who are running for re-election in states Trump lost in 2016 and trail their Democratic challengers this year.
Pushing a nominee through before Election Day would require the Senate to move with a atypical speed that dispenses with norms and traditions.
Justice Elena Kagan, Obama’s second and final Supreme Court pick, was confirmed 87 days after her May 10, 2010, nomination. Justice Neil Gorsuch, Trump’s first nominee, was confirmed 66 days after his Jan. 31, 2017 nomination. And Justice Brett Kavanaugh, Trump’s second high-court pick, was confirmed 89 days after his July 9, 2018, selection, with final action coming after a second and extraordinary round of hearings after Christine Blasey Ford accused him of trying to sexually assault her at a 1982 house party when they were in high school.
The confirmation process typically involves one-on-one meetings between the nominee and individual senators over many weeks. And the process before the Senate Judiciary Committee is quite involved and includes a lengthy background questionnaire for the nominee, a week of hearings, and a vote usually two weeks later before a full Senate vote is scheduled.
Two senior Republicans might find themselves facing questions about past statements about election-year Supreme Court nominations.
Former Judiciary Chairman Chuck Grassley of Iowa said in a May radio interview in the state that the Senate shouldn’t fill an opening on the Supreme Court before the election. “You can’t have one rule for Democratic presidents and another rule for Republican presidents,” he said, according to the Des Moines register. Grassley, who headed the committee when Obama’s nomination was blocked, issued a statement on Ginsburg Friday night that didn’t mention the effort to fill the vacancy.
The current Judiciary chairman, Sen. Lindsey Graham of South Carolina, said in 2018 that “if an opening comes in the last year of President Trump’s term, and the primary process has started, we’ll wait until the next election.”
Delaying a vote until after the elections and before a new Congress is sworn in in early January has its own downsides. For one, Arizona Democrat challenger Mark Kelly is favored to beat incumbent GOP Sen. Martha McSally in that state’s special election to serve out the remainder of the late John McCain’s Senate term. If he wins, he could be seated shortly thereafter, costing McConnell one vote.
Two Republican senators — Lisa Murkowski of Alaska and Collins — have previously said preserving Roe v. Wade, the ruling the established abortion rights, would be a factor in their Supreme Court votes. Murkowski told Alaska Public Radio Friday before Ginsburg’s death was announced that if there were a vacancy on the court this year she wouldn’t vote to confirm a nominee before the election.
Yet McConnell could lose them and still confirm a justice if he can hold the line elsewhere.
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